Moote v Attorney-General [1998] KIHC 17; HCLA 048.97 (27 February 1998)

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

HCLA 48/97

BETWEEN:

NENEAKI MOOTE
Appellant

AND:

ATTORNEY-GENERAL
Respondent

Mr D Lambourne for the Appellant
Mr D Sim for the Respondent

Date of Hearing: 27 February 1998

JUDGMENT

The appellant, Neneaki Mote, is the owner of the land Kauake 818u on Betio. The land is subject to lease no. 640/56 dated 26^th July 1956 from the appellant's predecessor in title to the Government of the Gilbert & Ellice Islands Colony for a term of 99 years from the 1^st January 1954.

There is a beach to the south of the land and, since the granting of the lease, there has been an accretion. The Government has granted a sub-lease of an area partly on the leased land and party on the accretion.

In case no. 706/96 the appellant applied to the Bairiki Magistrates' Court (Lands) to determine the southern boundary of the land contained in the head lease. The question which the Single Magistrate was asked to decide was: did the southern boundary go as far as the high water mark, in which case the accretion would form part of the lease, or did the southern boundary fall short of the high water mark, in which case the accretion would not be subject to the lease.

The land which was leased was described in the lease document as follows: "that piece of land of approximately .31 acres total acreage situated in or near the village of Betio on the island of Tarawa and known as Kauake and numbered No. 818(U) at page 108 of volume M of the Lands Register of the said island and more particularly described as follows:- "Commencing at the North West corner marked by "G" thence by a line 51 feet long bearing 77 degrees to H thence by a line 275 feet long bearing 180 degrees to AA thence by a line 48 feet long bearing 271 degrees to AB thence by a line 263 feet long bearing 359 degrees to the point of commencement as shown on the accompanying plan".

The accompanying plan shows the subject land as one of 16 allotments and confirms the dimensions given in the description. Towards the bottom of the plan and south of the allotments is written the word "BEACH". At the north, the allotments face on to a road.

The lease was entered into more than 40 years ago and apparently there were no surviving witnesses to assist the Single Magistrate. In an effort to understand the issues, he went to the site and took measurements of the subject land from the road - 275 ft on the eastern boundary and 263 ft on the western boundary. His judgment does not mention whether or not he measured the northern and southern boundaries. In any event, after taking the measurements mentioned, the Single Magistrate found that there was still some land remaining in the south. He decided that this remaining land was an accretion. However, he was unable to tell whether the accretion began from the land not included in the lease or whether it began from the edge of the land included in the lease.

The Single Magistrate accordingly delivered the following decision which is now under appeal: "But since it cannot be established where the accretion began, and the portion of the lease land is attached to the accretion, this then conveys the fact to me that what is being at the high water mark. The boundary of lease No. 640/56 on the southern side of 818u Kauake is the high water mark".

We must confess we cannot follow the reasoning of that decision. A finding that it was not possible to establish where the accretion began cannot support the conclusion that the leased land was attached to the accretion.

The appellant's argument is that if the southern boundary was meant to be the high water mark it would not have been shown on the plan as a straight line. Furthermore, it is argued, the use of the word "beach" on the plan instead of the words "high water mark" show that it was not intended for the southern boundary to be the high water mark.

Counsel for the appellant also contends that "beach" and "high water mark" are not necessarily the same thing, although they can be. Where "beach" is meant to be the land between the high and low water marks then, it is submitted, the high water mark is the same as the landward boundary of the beach. However, it is argued, the word "beach" is not restricted to that definition and, when used in its ordinary sense, has a much wider meaning. In support of that proposition we have been referred to what appears under the heading "seashore" in "Words and Phrases Legally Defined" (Third Edition) and two cases discussed therein, Government of the State of Penang v. Beng Hong Oon (1971) 3 All E.R 1163 at 1170, and Tito v. Waddell (No. 2) (1977) 3 All E.R. 129 at 262, 263.

The argument for the respondent is that where a word is used in a legal document to describe a boundary it must have a precise meaning, and that in the present case the word "beach" means prima facie the land between the high and low water marks. In support of this contention counsel relies on the judgments of Lord Cross in Beng Hong Oon (supra) and of Lord Kingsburgh in Musselburgh Magistrates v. Musselburgh Real Estate Co. Ltd (1904) 7F 308 (as discussed in the judgment of Megarry V-C in Tito (supra) at p. 263).

It is further argued for the respondent that there was no evidence that any other piece of land was situated between the southern boundary of the subject land and the beach and that, if there had been, it would have been shown on the plan. In the circumstances, it is argued, the line AA-AB shown on the plan can only be read to mean that it is the end of the beach, that is, the high water mark. That being the case, any accretion to that land becomes part of the lease by virtue of section 12(2) of the Native Lands Ordinance Cap. 61 (as amended).

We think that the judgment of Lord Cross in the Privy Council case of Beng Hong Oon (which was preferred by Megarry V-C in Tito to the Scottish case of Musselburgh Magistrates, so far as there was any conflict) makes it clear that the landward boundary of the "beach" in its ordinary meaning is not restricted to the high water mark, but when used in a legal document it would probably have a more precise meaning.

However, an important distinction can be drawn between the cases cited and the present case. In all of the cases cited, the court had to determine the meaning of the word "beach" because the use of such word created an ambiguity in the description of the land sought to be conveyed.

In Beng Hong Oon the controversy was over a boundary described as "West by Sea Beach four thousand and sixty seven feet". In Musselburgh Magistrates the issue arose over the description of the land as being bounded on the north "by the sea beach". In the relevant part of Tito's Case the claim did not involve ownership of the land, except incidentally, but was for damages in conversion in respect of the alleged wrongful removal of sand. An agreement conferred a right "to the removal of sand and shingle from the beach at Ocean Island". The claim was in relation to land edged red on a plan annexed to the statement of claim (in the course of pleadings that plan was superseded by another plan). It was against that background that the court had to consider the meaning of the word "beach".

In the present case, the southern boundary is not described as a beach or anything like it. It is described as a line from AA 48 feet long bearing 271 degrees to AB. In our view the definition of what was being conveyed could not have been more precise. The description first states the location, the acreage, the lot number and the page number in the Lands Register. It then goes on to describe the land "more particularly" by giving the measurements of each boundary in feet, along with its compass bearing. Those dimensions are then expressed to be as shown on the accompanying plan.

We therefore do not consider that the cases used in argument are pertinent.

The description in the lease defines the land with absolute certainty. Nowhere does the word "beach" appear. Nowhere in that description does it say that, despite the precise description, the southern boundary is really meant to be the high water mark. The only place that the word "beach" appears is on the plan.

The question is: where there is a sufficiently certain definition of what is conveyed, is that definition vitiated by the use of the word "beach" on an accompanying plan? The answer to that question, in our opinion, must be no. We think that the only significance that can be attributed to the use of the word is to indicate that somewhere to the south of the allotments is an area of beach.

We do not think that there was any evidence before the Single Magistrate which would have entitled him to find that the southern boundary was the high water mark. In our opinion lease no. 640/56 was intended to convey and did convey a parcel of land with boundaries of the precise length and bearing described in the lease. In our judgment the southern boundary does not extend to the high water mark and therefore the accretion is not included in the lease.

The appeal is allowed and the decision of the Single Magistrate is set aside.

THE HON R B LUSSICK
Chief Justice

TEKAIE TENANORA
Magistrate

BETERO KAITANGARE
Magistrate