Nakareke v Tibwere [1999] KIHC 26; HCLA 05.98 (28 April 1999)

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

HCLA 5/98

BETWEEN:

NAKAREKE & WIFE
Appellants

AND:

BAUNANA TIBWERE
RAUA TIBWERE
Respondents

Mr T Teiwaki for the Appellants
Mr B Berina for the Respondents

Date of Hearing: 23 April 1999

JUDGMENT

The appellant is the owner of the land Teai 641a/1 and the respondents are the owners of the adjoining land Banounou 640i.

In 1997, in case no. 40/97, the appellant applied to the magistrates' court for a boundary determination based on the boundary determined in case no. 36/88. In that case the boundary was fixed by measuring the length of both lands along the Ananau Causeway. Teai 641a measured 150 ft and Banounou 640i 132 ft. On that basis, a boundary stone between the two properties was established beside the main road.

The respondent Nei Baunana Tibwere appealed that decision but in HCLA 257/88 the High Court dismissed the appeal because she was not the registered owner. However, the present appellant's predecessor in title, Betero, had accepted the findings in case no. 36/88 at that time.

In 1995 in case no. 24/95, Nei Baunana sought a rehearing. With the assistance of a surveyor and the facts found in case no. 36/88 the boundary at Ananau Causeway was again established and a boundary stone erected. That decision was appealed, this time by Betero. In HCLA 20/96 the High Court, in dismissing the appeal, pointed out that the decision in case no. 36/88 was never attacked on the basis that its findings were wrong. Betero had accepted the findings then and the respondents (who are also the present respondents) accepted them now, which led the High Court to the view that that should be the end of the matter. Betero then appealed to the Court of Appeal (Land Appeal No. 17 of 1996) but the Court of Appeal agreed with the High Court and dismissed the appeal.

The appellant became registered owner of Teai 641a/1 on 9 September 1996 (case no. 510/96). Up until that time the land had been described simply as Teai 641a. We have not been told whether 641a/1 is exactly the same land or a subdivision. In 1997 the boundary stone erected in case no. 24/95 had apparently been removed, so the appellant applied for a boundary determination in the case now under appeal (case no. 40/97).

The Single Magistrate hearing the case heard the sworn evidence of the appellant and the respondent Nei Raua Tibwere. He also went to the site to make his own observations. In his judgment, the Single Magistrate did not accept the differing positions of the boundary as indicated by the parties. Instead, he located the position of the boundary stone erected in case no. 24/95 by measuring a distance of 132 ft from the far boundary of the respondents' land.

That decision is now appealed on the following grounds:

"1. The magistrate erred in law in erecting a boundary not in accordance with what was erected in case No. 36/88.

2. The magistrate erred in law in failing to give the plaintiff 150 feet as the width of his land in accordance with the decision in case No. 36/88".
   

In our view, the method adopted by the Single Magistrate directly accords with the decision in case no. 36/88. If one measures 132 ft along the causeway from the far boundary of the respondents' land it is inevitable that the end of that distance will mark the boundary between the lands of the parties, as it did in case no. 36/88 and case no. 24/95.

There was no evidence at all that the appellant was thereby left with land of a width measuring less than 150 ft. In any event, such evidence would not have entitled us to conclude that the respondents had acquired more land than they were entitled to. The width of their land, 132 ft, as measured by the Single Magistrate, accords exactly with what was measured by earlier courts in cases no. 36/88 and 24/95. It would not be logical to suggest that because the appellant has lost some land the respondents should give him some of theirs. All the Single Magistrate was asked to determine was the boundary between the land of the appellant and that of the respondents. This he has done, with the result that the respondents have ended up with the same measurement of land along the causeway that they have always had. Should it be the case that the appellant has lost some land (and we repeat that this has not been proved) then it would not have resulted from the present boundary determination. The Single Magistrate was not concerned with what may or may not have happened to the other boundaries of the appellant's land.

In our judgment, the Single Magistrate did not fall into any error in the way he determined the boundary.

The appeal therefore fails and is dismissed.

THE HON R B LUSSICK
Chief Justice
(28/04/99)

BITIARE EKERA
Magistrate
(28/04/99)

BETERO KAITANGARE
Magistrate
(28/04/99)