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Tebwebwe v Katimero [1997] KIHC 67; HCLA 196.89 (18 August 1997)

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

HCLA 196/89

BETWEEN:

TERETIA TEBWEBWE
Appellant

AND:

RAUBITI KATIMERO
Respondent

Appellant in person
Mr D Lambourne for the Respondent

Date of Hearing: 14 August 1997

JUDGMENT

This is an appeal against a decision of the Abemama Magistrates' Court (Lands) delivered on 6 April 1989.

The appellant and the respondent are first cousins. The appellant's mother, Bwetita, was the sister of the respondent's mother, Toantebure. When Bwetita died, Toantebure moved onto the land in dispute and built a house for her family. Subsequently, the appellant's family commenced to build a house and that is when the respondent brought the action in the lower court.

The respondent's application to the lower court was for a boundary determination between her family's house and the house (or proposed house) of the appellant's family.

The Magistrates' Court found against the appellant. The judgment under appeal is as follows:

"Having seen the boundary, Raubiti should continue to stay there since she has been staying there for a very long time".

The minutes of the proceedings in the lower court reveal that the magistrates appear to have been labouring under some confusion as to the nature of the application before them. The case was evidently not a boundary determination, at least not in the normal sense, since the appellant and respondent appear to have been living on the same piece of land. We therefore cannot understand what was the boundary referred to by the magistrates in their judgment. Perhaps it was an internal dividing line between the respective families. In any event, it seems to us that the broader issue was the entitlement of one or other of the parties to live on the land.

The magistrates failed to define and deal with the real issues. Instead, they arrived at a judgment which, in our opinion, has no foundation in law.

We do not think there is any alternative but for the case to be heard again. Accordingly, the appeal is allowed and the case is remitted to the Abemama Magistrates' Court (Lands) for retrial.

THE HON R B LUSSICK
Chief Justice
(18/08/97)

BITIARE EKERA
Magistrate
(18/08/97)

TOOKI KAAKE
Magistrate
(18/08/97)