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

HCLA 40/91

BETWEEN:

N. TEERA ARETATETA
Appellant

AND:

MARERA ONORIO
N. TEMANEA ONORIO
Respondents

Mr D Lambourne for the Appellant
1st Respondent for self & 2nd Respondent

Date of Hearing: 22 July 1997

JUDGMENT

This is an appeal against a boundary determination made by the Arorae Magistrates' Court (Lands) on 19 October 1990 in case No. 13/90.

The respondents were the applicants in the lower court. Their case was that the correct boundary between the lands of the parties should be placed along the first row of coconut trees. This would mean that a cooking hut erected by the appellant had in fact been erected on land belonging to the respondent.

The appellant was the defendant in the lower court. Her case was that the correct boundary should be placed along the second row of coconut trees. This would mean that she had correctly erected the cooking hut on her land and not on the respondent's land.

Thus the evidence produced by the respondents in the lower court was in direct conflict with the evidence produced by the appellant.

Nevertheless, the magistrates arrived at the following decision:

"Finding

By the listening of the Magistrates on the evidences provided by both parties, decided that their evidences are both true, not a single evidence is untrue, and have decided to give their decision on the entire center of their disputed facts and without following one or the other's boundary and to be followed by erecting boundary stones starting from western side up to eastern side.

Decision

5 boundary stones to be erected by the side of the road up towards the east. These boundaries are to be erected at the entire middle of the disputed area of the parties".

Counsel for the appellant submits that the magistrates fell into error in arriving at such a decision and that the only way to properly resolve the issue is by way of retrial.

We agree. The finding of the lower court is clearly incorrect because it was not possible for the evidence of both parties to be true. It may well be that the magistrates thought that each witness for either side was telling the truth so far as he or she understood it. However, in such a case it still remained the task of the magistrates to decide which version of the facts was the more probable. What they did instead was, in effect, to make no decision at all on the evidence before them.

We are therefore of the view that the appeal should be allowed. The decision of the magistrates' court is set aside and the case is remitted for retrial. The magistrates are directed to provide a sketch plan with their decision on the retrial.

The respondents are advised that they have a right to appeal to the Court of Appeal within 6 weeks.

THE HON R B LUSSICK
Chief Justice
(01/08/97)

TEKAIE TENANORA
Magistrate
(01/08/97)

BETERO KAITANGARE
Magistrate
(01/08/97)