Bukibuki v Lusi [1998] KIHC 49; HCLA 080.97 (2 October 1998)

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

HCLA 80/97

BETWEEN:

BARANIKO BUKIBUKI
Appellant

AND:

IOTEBINA LUSI
Respondent

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

Date of Hearing: 25 September 1998

JUDGMENT

This is an appeal against a boundary determination made by the Single Magistrate in case No. 21/97.

The boundary in question runs between the land of the appellant, Tebue 656o/1, and the land of the respondent, Tebue 656i.

In case No. 21/97 the present respondent applied to the magistrates' court to re-erect the boundary. One of the boundary stones on the lagoon side had disappeared and the respondent claimed that the appellant had encroached onto her land. She asked the court to evict him.

The respondent told the lower court that the boundary had already been determined, and she pointed out to the court the position of that boundary as determined. In support of her evidence she produced the minutes of two previous cases in which the boundary had been fixed, BA 3/90 and BD 65/95. Only the minutes of BA 3/90 have been produced to us. Apparently the other minutes cannot be located.

In reply to the respondent's evidence in the lower court, the appellant testified as follows:

"It is true that the boundary has been determined. I believe the boundary this lady pointed out but am not happy with it".

No doubt in view of that answer, the respondent did not question the appellant. The Single Magistrate asked the appellant only one question, namely:

"Q. Did you appeal against the erected boundary?"

The appellant answered no.

The Single Magistrate then told the appellant that it was too late to appeal and that he should have appealed long ago against the boundary as erected. The Single Magistrate went on to determine the boundary as indicated by the respondent and agreed by the appellant. That boundary is to be seen on the sketch accompanying the minutes of case No. 21/97.

The Single Magistrate's decision is now appealed on the following ground:

1. The Single Magistrate erred by failing to make use of the surveyors to ensure that the new boundary mark was placed in exactly the same location as it had been placed in South Tarawa land case BA 3/90, as recorded in survey plan SR25/90, which case and plan were before the Court on this occasion.
   

The appellant has also filed an affidavit deposing, amongst other things, that he is a very old man and does not remember agreeing with the placement of the stone by the Single Magistrate.

The minutes of the proceedings in the lower court show that the appellant did not question the respondent's evidence. When the appellant was questioned by the Single Magistrate, he did not seek to allege that the previously erected boundary pointed out by the respondent was not the correct one. He was merely not happy with that boundary but had not brought an appeal while there had been time to do so.

In our view, the Single Magistrate did not take an incorrect view of the evidence. What other view could be taken than that the appellant agreed with the boundary pointed out by the respondent although not happy with it? We do not think that the Single Magistrate fell into error in determining the boundary according to that evidence. There was no need to refer the matter to surveyors when both parties had agreed to the position of the boundary. We might add that there was no evidence before the lower court that the new boundary mark was not in the same position as the mark in case No. 3/90. On the contrary, there was evidence from the respondent that it was.

We do not think this appeal has any merit, and it is accordingly dismissed. The appellant must vacate the respondent's land within 2 weeks from today.

THE HON R B LUSSICK
Chief Justice
(2 October 1998)

TEKAIE TENANORA
Magistrate
(2 October 1998)

BETERO KAITANGARE
Magistrate
(2 October 1998)