Teeu v Nakabuta [1999] KIHC 9; HCLA 094.97 (19 February 1999)

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

HCLA 94/97

BETWEEN:

TEMAREWE TEEU
Appellant

AND:

RAIBO NAKABUTA
Respondent

Appellant in person
Respondent in person

Date of Hearing: 5 February 1999

JUDGMENT

This is an appeal against a boundary determination made by the Single Magistrate in case no. BD A/44/97. The disputed boundary runs between the appellant's land, known as Bareaumai 589i, and the respondent's land, known as Tekaroboi 591a.

The appellant's ground of appeal is in these terms:

"My land is getting smaller while respondent's is getting bigger by getting some portion of my land after the boundary determination".

We do not consider that ground to be a reasonable ground of appeal, since it is usually the case in a boundary determination that the unsuccessful party ends up with less land than has been claimed.

However, making allowance for the fact that the appellant was not legally represented, we did not strike out the ground but allowed the appeal to proceed.

Apart from that ground, the appellant complained to us that the Single Magistrate did not hear what she had to say about her boundary. She told us she was walking along talking, but when she looked back she saw that the Single Magistrate had not been following behind her but had stayed back to talk to the respondent. We do not think there is any substance to this complaint. It is obvious from the Single Magistrate's judgment that he was well aware of the boundary which the appellant was claiming.

The boundary claimed by the appellant, a line of cut coconut trees (shown on the sketch plan accompanying the Single Magistrate's judgment), placed the land Tekaroboi 591a within her land and left the respondent with a small ditch or hollow called "Tenei N. Tata".

The appellant's evidence in the lower court was that the respondent did not even own Tekaroboi 591a, but only owned the said hollow. The appellant claimed that the respondent's grandfather Binataake had given away Tekaroboi 591a to his sister Tokatane who, we think, was the appellant's mother, although the minutes of the proceedings in the lower court do not make this clear.

In any event, the Single Magistrate found that that was not the case at all. He inspected the Land List which showed that, by virtue of case no. 245/84, the respondent Raibo and her sisters are the registered as owners of Tekaroboi 591a (and the hollow) and have been since 1984.

The Single Magistrate also heard evidence from both parties and went to the site to make his own observations. He accepted the evidence of the respondent as to the correct position of the boundary in preference to that of the appellant and, accordingly, fixed the respondent's boundary so as to include the land Tekaroboi 591a as well as the hollow (as shown on the sketch plan).

In arriving at that decision, the Single Magistrate remarked that had he accepted the boundary claimed by the appellant it would have left only a small hollow for the respondent and her sisters and, further, that the boundary claimed by the appellant encompassed the land Tekaroboi 591a, to which the respondent had an indefeasible title pursuant to section 4 of the Native Lands Ordinance Cap. 61.

In our judgment, the appellant has not shown that the Single Magistrate fell into error, either in fact or in law. We can find nothing wrong with the decision. The procedure followed by the Single Magistrate cannot be faulted and there was ample evidence to support his decision in favour of the respondent.

The appeal therefore fails and is dismissed.

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

THE HON R B LUSSICK
Chief Justice
(19/02/99)

TEKAIE TENANORA
Magistrate
(19/02/99)

BETERO KAITANGARE
Magistrate
(19/02/99)