Kaiea v Kiaman [1998] KIHC 50; HCLA 079.97 (2 October 1998)

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

HCLA 79/97

BETWEEN:

KABIRIERA KAIEA
Appellant

AND:

MAUERERE KIAMAN
Respondent

Appellant in person
Respondent represented by son, Pitaa Beniamina

Date of Hearing: 25 September 1998

JUDGMENT

This is an appeal against a boundary determination made by the Single Magistrate in case No. 24/97. The boundary runs between the land of the appellant, Teai 641u, and the land of the respondent, Teai 641o.

The ground of appeal is as follows: "I am dissatisfied with the boundary since it is not even or did not run in a straight line".

When the appellant argued the appeal before us, he made no mention of the boundary as fixed by the Single Magistrate not being straight. He told us, however, that he did not really want a boundary determination but would prefer for his land to be measured instead. When we reminded him that he was the one who had applied for the boundary determination in the first place, he replied that the boundary was not determined as it was supposed to be but runs down the middle of his land.

It was clear from the minutes of the proceedings in the lower court that the task of the Single Magistrate was to place new boundary stones, as the old ones had been removed. The Single Magistrate heard sworn evidence from the parties and went to the site to enable the parties to show him where they claimed the boundary should be. We note from the appellant's evidence that he did not allege that the boundary indicated by the respondent ran down the middle of his land, and we think that he was exaggerating when he told us that.

The Single Magistrate in fact accepted the respondent's boundary, which he found to follow a row of coconut trees. On the other hand, the Single Magistrate rejected as not being true the boundary claimed by the appellant. The Single Magistrate accordingly placed three stones to mark the boundary. As can be seen from the sketch accompanying the minutes, the boundary runs in a straight line following the coconut trees from the lagoon to the ocean.

In our view, the Single Magistrate was entitled to accept the respondent's evidence in preference to the appellant's. The procedure he adopted in determining the boundary cannot be faulted and the boundary he fixed appears to be the most logical one.

The appellant has failed to convince us that the Single Magistrate erred in any way in arriving at his decision. The appeal therefore fails and is dismissed.

The appellant is advised that he has a right to appeal to the Court of Appeal within 6 weeks.

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

TEKAIE TENANORA
Magistrate
(2 October 1998)

BETERO KAITANGARE
Magistrate
(2 October 1998)