Karotu v Keeka [1998] KIHC 24; HCLA 022.97 (29 April 1998)

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

HCLA 22/97

BETWEEN:

BAROIA KAROTU
Appellant

AND:

VERONIKA KEEKA
Respondent

Mr D Lambourne for the Appellant
Mr T Teiwaki for the Respondent

Date of Hearing: 24 April 1998

JUDGMENT

This is an appeal against a boundary determination made by Single Magistrate K. Tebweao SM in the South Tarawa Magistrates' Court (Lands) on 15 November 1996 in case No. 114/96.

The disputed boundary runs between the lands Abaunamou 792/m/1 owned by the appellants and Abaunamou 792/n owned by the respondent and others.

Grounds of appeal were filed by the appellants but the only ground argued by their counsel was that the Single Magistrate's decision was not supported by the evidence.

The Single Magistrate accepted the boundary mark indicated by the respondent, which was 2.9 metres farther inland from the stone near the public road indicated by the appellants. In the hearing in the lower court there was no boundary stone at the place shown by the respondent. She claimed that someone had moved it, but she said that the people of Teaoraereke would know it had been there. No evidence was called to support that assertion. The respondent also gave evidence that the Lands Commission placed the boundary stones not near the public road but 2.9 metres further to the east. That assertion was also not supported by any evidence. The respondent could not have been speaking from her own knowledge because she gave her age as 42, so that she would not have been alive at the time of the Lands Commission.

In contrast, one of the appellants was able to point to the actual boundary stone which they relied upon. She said that the stone was placed there by the last land court which fixed the boundary. She was asked by the appellant to produce the minutes of that particular hearing and she told the court that she had not brought it with her. Instead of granting an adjournment to enable the witness to obtain the court minutes, the Single Magistrate used that circumstance to reject her evidence about the boundary stone altogether. Those minutes have now been produced to us. They are the minutes of case No. 67/82 dated 5 November 1982. The decision of the magistrates' court in that case was to confirm boundary stones and marked trees as boundaries of the land Abaunamou. We must say, however, that we have no way of telling how those boundary stones relate to the boundary stone which was pointed out by the appellants in the present case. That would be a matter for further evidence. In any event, we do not think that the Single Magistrate ought to have rejected the appellant's evidence of the boundary stone without giving a chance for those minutes to be produced to see where that might lead.

We agree with counsel for the appellant that the boundary fixed by the lower court is not supported by the evidence. We therefore allow the appeal. The decision of the Single Magistrate is set aside and the case is remitted for retrial. The magistrates are directed to take into account the decision in case No. 67/82 and to ensure that their own decision is accompanied by a sketch plan.

THE HON R B LUSSICK
Chief Justice
(29/04/98)

TEKAIE TENANORA
Magistrate
(29/04/98)

BETERO KAITANGARE
Magistrate
(29/04/98)