Bureka v Batee [1997] KIHC 68; HCLA 020.94 (25 September 1997)

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

HCLA 20/94

BETWEEN:

N. TINIA BUREKA
Appellant

AND:

MIKAERE BATEE mt mm
Respondents

Mr B Berina for Appellant
Mr T Teiwaki for Respondents

Date of Hearing: 25 September 1997

JUDGMENT

The appellant, N. Tinia Bureka, is the owner of the land Tebue 753(o). The respondent, Mikaere Batee, owns the land Tebue 753(i). The appeal is from a determination of the boundary between those lands made by the South Tarawa Magistrates' Court (Lands) in case No. 1/94.

The method used by the magistrates to determine the boundary was to measure the length of the whole of the land Tebue 753 from east to west, which came to 79.05 metres. Tebue 753 consists of 4 plots, a, e, i, and o, which are all of the same size. The magistrates simply divided the total length by 4 and arrived at a width of 19.763 metres for each plot.

The appellant appeals that decision on the following grounds:

"1. That the Lands Court erred in law in erecting the boundary relying on the width of TEBUE in that there is no evidence to show where TEBUE 753 starts and where it stops.

2. That the Lands Court erred in law in erecting the boundary between the two lands without taking into account the effect of the boundaries set in case No. 19/72".
   

The appellant complains that as a result of the decision, part of the brick house erected by her sister and most of the trees planted by her sister are now on the respondent's land, along with the graves of her relatives.

It is submitted for the appellant that the method used by the lower court to fix the boundary did not arise from any of the evidence before it. Counsel for the respondent, on the other hand, argues that the magistrates based their decision on a 1984 case (43/84) which was referred to in the respondent's evidence in the lower court. We do not see how that submission could be correct. The measurement of each plot in the 1984 decision was 22 metres, resulting in an overall length for Tebue 753 of 88 metres. Those measurements were quite different from the measurements in the present case. Moreover, there is nothing in the minutes of the 1984 case to indicate if, or how, the court determined any fixed points for its measurements. We therefore do not think that it can be argued that the magistrates followed the 1984 decision.

There was no evidence before the magistrates to establish where the land Tebue 753 began and ended. Without knowing those essentials, we cannot see how dividing a measurement by 4 would necessary result in an accurate boundary.

In regard to the second ground of appeal, the appellant produced to the lower court the minutes of a boundary determination in case 19/72 to support her claim of where the proper boundary should be. We agree with the appellant that the magistrates should have given reasons as to why they were not prepared to take that case into account.

It follows from what we have said that we find the decision of the magistrates' court to be unsatisfactory. The appeal is therefore allowed and the decision set aside. The case is remitted to the magistrates' court for retrial.

THE HON R B LUSSICK
Chief Justice
( /10/97)

TEKAIE TENANORA
Magistrate
( /10/97)

BETERO KAITANGARE
Magistrate
( /10/97)