Atanibeia v Issue of Titau [1998] KIHC 47; HCLA 059.97 (25 September 1998)

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

HCLA 59/97

BETWEEN:

ATAUEA ATANIBEIA
Appellant

AND:

ISSUES OF KAIKAI TITAU
AND ISSUES OF THE SECOND SPOUSE
Respondents

Mr B Berina for the Appellant
Mr D Lambourne for the Respondents

Date of Hearing: 25 September 1998

JUDGMENT

This is an appeal against a boundary determination made by the Single Magistrate in case No. 28/97. The boundary concerned runs between the land of the appellant, Tokaibure 648a/1a/2, and the land of the respondents, Teanimanoia 647m.

The part of the boundary on the ocean side is the focus of the dispute. The boundary on the lagoon side is not disputed. The Single Magistrate heard sworn evidence given on behalf of both parties and then went to the site to enable the parties to show him where they thought the boundary should run. The Single Magistrate found that the boundary claimed by the appellant curved onto the land of the respondents. The Single Magistrate then determined a straight boundary following a line of coconut trees through to a point on the undisputed lagoon side. In our view, there does not seem to be anything wrong with the procedure adopted by the Single Magistrate, and the boundary fixed by him appears to be the most logical one.

However, that decision is now appealed on the following grounds:

1. The learned Single Magistrate erred in law and in fact in finding that the evidence of the surveyor is of no assistance and in failing to find out on whose land the water mark is erected in that had he made such enquiry independent evidence would then be available especially on who has been collecting compensation in respect of the water reservoir.
   
2. The learned Single Magistrate erred in law and in fact in failing to take into account the substantial improvement made by the Appellant on the ocean side of the land which was a seawall and which was constructed with the knowledge of the Respondents and without their objection.
   

A surveyor gave evidence in the lower court that the survey which was referred to only dealt with water reservoirs and not land boundaries. That evidence was consistent with what the appellant told the lower court. We think that the Single Magistrate was correct in concluding that such a survey would be of no assistance in ascertaining the boundary in dispute. The fact that a water reservoir stood within the land of one or other of the parties, or that such party had been given compensation for it, was not shown to be of any relevance either in the lower court or before us. We therefore reject the first ground of appeal.

In respect of the sea wall, there was no proof given in the lower court that the appellant had made any improvements to it, or that he owned it. In fact, the appellant did not mention it at all. We therefore find that the second ground of appeal has no merit.

It follows that the appeal must fail and is dismissed accordingly.

THE HON R B LUSSICK
Chief Justice

TEKAIE TENANORA
Magistrate

BETERO KAITANGARE
Magistrate