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Raoiroi v Nakbua [1996] KIHC 78; HCLA 035.90 (26 July 1996)

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

HCLA 35/90

BETWEEN:

TUNTAAKE RAOIROI
Appellant

AND:

TABERAITI NAKABUO
Respondent

Mr D Lambourne for the Appellant
Respondent represented by son Tebano

JUDGMENT

The appellant appeals a boundary determination made by the land magistrates' court in case 1/90.

The appellant was the plaintiff in the court below. His case was that he and the respondent had adjoining boundaries from the ocean side to a point in the middle of the island at the eastern end of a pit. From there the appellant's boundary ran straight through to the lagoon adjoining the boundary of the mother of Atanibuariki.

The respondent claimed that he and the appellant were adjoining owners from the ocean side all the way through to the lagoon. The boundary running from the point in the middle of the island mentioned previously was indicated by the respondent's witness to run in a more southerly direction than the boundary indicated by the appellant. This was the boundary favoured by the land magistrates' court.

In its decision, the lower court came to several conclusions that were not supported by the evidence.

Firstly, the lower court concluded that the plaintiff's evidence, which was supported by the evidence of Atanibuariki, implied that the land 293-u (the respondent's land) did not exist. We cannot understand how they came to that conclusion. The appellant's evidence was that the respondent's land stopped on the eastern side of the pit inside Okera's land. Atanibuariki's evidence was that his mother and the respondent have adjoining lands from the ocean side up to that pit where the land of Taberaiti stopped. The magistrates were therefore wrong in concluding that the plaintiff and Atanibuariki were denying the existence of the respondent's land.

Next, the magistrates found in their decision that "the defendant plus his witness Taia both claimed Tabera's land mt mm 293-u to have reached the lagoon side". That is not what the evidence says. The respondent's husband, when asked if the land went all the way through to the lagoon, replied, "It does in relation to my mother-in-law's story". In other words, he knew no more than he had been told. Hearsay evidence is inadmissible and certainly cannot be used by a court to support a finding of fact. When the defendant's witness Taia was asked whether the land reached the lagoon he replied that he only knew the location of the house plots on N. Ruria's land. The magistrates were therefore quite wrong to find that such evidence established that the respondent's boundary reached the lagoon.

Finally, the magistrates concluded that since all 3 plots mentioned in the case were the same size it means that the respondent's land reaches to the lagoon. We cannot see how this necessarily follows.

We note from the sketchmap prepared by the magistrates that the boundary claimed by the appellant appears to be a more logical one, as it runs in a straight line from the ocean to the lagoon. On the other hand, the respondent's boundary which was favoured by the magistrates is anything but straight. Running from the middle of the island it has 3 bends in it before it reaches the lagoon.

Apart from this unlikely boundary, it is quite clear that the magistrates misunderstood the evidence and came to conclusions which the evidence did not support.

The decision is therefore unsatisfactory and cannot be allowed to stand.

The appeal is allowed. The decision of the land magistrates' court is set aside and the case is remitted for rehearing.

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

THE HON R B LUSSICK
Chief Justice
(26/07/96)

TEKAIE TENANORA
Magistrate
(26/07/96)

BETERO KAITANGARE
Magistrate
(26/07/96)