Tamabeti v Tibeta [1997] KIHC 63; HCLA 040.97 (30 July 1997)

IN THE HIGH COURT OF KIRIBATI
HELD IN ARORAE
(BEFORE THE HON R LUSSICK C.J.)

HCLA 40/97

BETWEEN:

IOTUA TAMABETI
Appellant

AND:

TATAKE TIBETA
Respondent

Appellant in person
Respondent in person

Date of Hearing: 22 July 1997

JUDGMENT

This is an appeal against a boundary determination made by the Arorae Magistrates' Court (Lands) in case No. 5/97.

The appellant relies on the following grounds of appeal:

1. I am dissatisfied with the boundary established by the Magistrates.
   
2. This man Tatake was not with us when we dug that place (for planting) because it was only myself Tekaria and his son.
   
3. There is a boundary stone east of the ocean side road which the magistrates disregarded, but is actually the boundary.
   

We find that we cannot properly consider these grounds of appeal because we are unable to tell from the minutes of the proceedings in the court below just where it was that the magistrates established the boundary. We are thus also unable to say whether or not the boundary as established was supported by the evidence.

The reason that we find ourselves in this position is that the magistrates omitted to follow standing instructions to provide a sketch plan with their decision. Without it, we are unable to follow the decision.

The magistrates obviously carried out an inspection of the disputed boundary. However, whatever they may have observed cannot be discerned from the evidence in the absence of a sketch plan.

It appears that the respondent's land belonged to Nei Karia. We are not told the shape of that land but it seems that there are two lands to the north of it, Roma's land and N. Tebeia's land. To the south, it is apparently bounded by Iotua's land and the land of Kakiaiti. Where all of these lands are in relation to one another we cannot tell. There are said to be some boundary markers in the west, but we cannot say where. The respondent's land is said to commence in the west at the top of Kieuriri's pit, but where is Kieuriri's pit?

The appellant gave evidence in the lower court that his land runs from the north to the south to the land of Kakiaiti. There are some old coconut trees forming a boundary in the east and some other trees in the west. However, there is no way for us to tell whereabouts these old boundaries are, nor can we say where the appellant's land stands in relation to that of Kakiaiti.

According to evidence given in the court below by Kakiaiti, his boundary with the respondent's land in the west is at the top of Teitiaki's pit, but we cannot tell where Teitiaki's pit is.

We find that in the absence of a sketch plan it is impossible to have any clear understanding of the evidence or the decision. In the circumstances, we have no alternative but to order a new trial.

The appeal is therefore allowed and the case is remitted to the magistrates' court for retrial. We direct the magistrates to provide a sketch plan with their decision showing the position of the boundary they have established and the position of any other lands, pits, boundaries and markers which may emerge from the evidence.

The respondent is advised that he has a right to appeal to the Court of Appeal within 6 weeks.

THE HON R B LUSSICK
Chief Justice
(30/07/97)

TEKAIE TENANORA
Magistrate
(30/07/97)

BETERO KAITANGARE
Magistrate
(30/07/97)