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Tekaai v Tetabo [1999] KIHC 12; HCLA 105.97 (19 February 1999)

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

HCLA 105/97

BETWEEN:

TOKAREI TEKAAI
RERE TEKAAI
Appellants

AND:

TAREMA TETABO
BABONITI BAKOA
Respondents

Appellants in person
Mr B Berina for the Respondents

Date of Hearing: 5 February 1999

JUDGMENT

This is an appeal from a boundary determination made by the Single Magistrate in case no. 41/97. The disputed boundary runs between the land of the appellants – Biketibu 774k – and that of the respondents – Biketibu 774 b/1a/1 and 774 b/1a/2.

The ground of appeal relied upon by the appellants is in the following terms:

"From this boundary determination the respondents land is getting bigger while our land is getting small".

In the hearing before the Single Magistrate, both parties called witnesses. The Single Magistrate also went to the site and compared the different boundaries claimed by the parties with the evidence. It was clear that the key to the issue was the situation of two babai pits, R3937 and R3938. If the pits were on the land of the respondents then the boundary claimed by the appellants could not be correct. The converse also applied.

In deciding that question the Single Magistrate, apart from making his own observations, took into account the evidence of the parties, the entries in the Pit Register and a previous decision of the High Court in HCLA 92/96. He correctly found that the pits were on the land of the respondents. He also observed that if the boundary claimed by the appellants was correct then the effect would be to leave the respondents with no land at all. (This can be understood by looking at the sketch accompanying the Single Magistrate's judgment). The Single Magistrate thereupon accepted the boundary claimed by the respondents, which was in accordance with the evidence.

The appellants have not shown any way in which the Single Magistrate fell into error. The procedure he followed cannot be faulted and there was ample evidence to support his finding in favour of the respondents. We find nothing wrong with the decision.

The appeal therefore fails and is dismissed.

The appellants are advised that they have 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)