Been v Baoro [2001] KIHC 16; Land Appeal 41 of 1999 (9 April 2001)

IN THE HIGH COURT OF KIRIBATI
LAND JURISDICTION
HELD AT ABAOKORO
REPUBLIC OF KIRIBATI

High Court Land Appeal 41 of 1999

Between:

BAORO BEEN & LAWRENCE
FOR ISSUES OF BEN
Appellants

And:

NUBONO BAORO & ORS
Respondents

For the Appellants: Mr Banuera Berina
For the Respondents: Mr Neil Allen

Date of Hearing: 9 April 2001

JUDGMENT
(Ex Tempore)

After discussion with counsel it looks as though there has been a mistake in carrying out the intention of the magistrates. From the transcript the intention was an equal distribution, into 6 shares, of the width of the land. Mr Berina complains on 2 points – first that the total width of the land is not 500m as the magistrates have said and secondly that one of the respondents has a disproportionately wide piece of land. If the total width were 500m, then each of Nubono and the group of the five people mentioned on page 2 of the transcript would receive land 83.33m wide. One of the respondents has, Mr Berina asserts, a far wider share. On no reading of the decision can it have been intended that any party should have a wider share than 83.33m.

Mr Berina began by arguing that under s.75 of the Magistrates’ Courts Ordinance this Court can entertain appeals on matters of fact as well as law. That certainly is not generally the practice of any appellate court: only if the lower court has made a mistake of fact clear on the face of the record will an appellate court interfere. That is not so here.

The clear intention of the parties and of the Court was that there should be a distribution of the land into strips of equal width. It appears that the intention has not been carried out. First because an error was made in the total width of the land and secondly because the land, whatever its width, has not been equally divided and distributed.

The case is sent back to the Magistrates’ Court to consider it again in the light of these reasons, to make sure that each of Nubono and the group of five parties is given land of equal width, however wide that may be.

	THE HON ROBIN MILLHOUSE QC CHIEF JUSTICE
TEKAIE TENANORA MAGISTRATE			BETERO KAITANGARE MAGISTRATE