Home | Databases | WorldLII | Search | Feedback High Court of Kiribati

Teitoi v Veronika [1998] KIHC 32; HCLA 016.97 (24 July 1998)

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

HCLA 16/97

BETWEEN:

TERIBWEBWE TEITOI
Appellant

AND:

VERONIKA
Respondent

Mr B Berina for the Appellant
Mr T Teiwaki for the Respondent

Date of Hearing: 24 July 1998

JUDGMENT

This is an appeal against a boundary determination made by the Single Magistrate, South Tarawa Magistrates' Court (Lands), in case No. 108/96.

The boundary in dispute runs between the lands Abaunamou 792b owned by the appellant and Abaunamou 792n owned by the respondent. The said boundary is the eastern boundary of the appellant's land and the western boundary of the respondent's land.

The appellant's case in the lower court was that the true boundary was marked by a stone standing at the base of a pandanus tree in line with the eastern end of a pit. The respondent claimed that the boundary was in fact 4.52 metres further west of that stone. The Single Magistrate found in favour of the respondent. That decision is appealed on the following grounds:

1. The learned Single Magistrate erred in law in failing to follow the boundary set in case Nos 66/82 and 67/82 as showing the proper boundaries.
   
2. The learned Single Magistrate erred in law and in fact in failing to ascertain how the plan DGM No. 1/85 which shows the boundaries of the lands in question came into being.
   
3. The learned Single Magistrate erred in law and in fact in failing to consult the pit-register to ascertain who owns the pit in question and on whose land such pit is situated before making a finding which is contrary to what appears in the pit-register.
   

Ground 1

The Single Magistrate's view of the evidence given by Nei Tetu (Temi) Arawaia, the appellant's aunt, was that she had admitted that she did not know where the original boundary was. The Single Magistrate thereupon concluded that there must be another boundary other than the one claimed by the appellant.

With respect, we do not think that the Single Magistrate was entitled to take that view of Nei Tetu's evidence. Nei Tetu was asked this question by the respondent:

17. "Are you sure this is your boundary which you have just located?
    

Her answer was:

1. "We did not know the boundary before and there was a boundary located with N. Eeis (i.e. this woman's) mother, N. Tikau. Actually she is the Deft's mother's sister".
   

In our view, Nei Tetu did not say that she did not know the boundary. She was saying that she had not known the boundary until she had located it with the respondent's mother.

That this is the correct meaning of her answer is confirmed by the minutes of a boundary determination made on 5 November 1982 in case No. 67/82, to which counsel for the appellant has referred us. Nei Tetu was one of the parties to that case. Another party was Nei Maria Keeba, the respondent's sister, who was representing Nei Timau, the respondent's mother. The court in that case fixed the boundary according to stones and marks at the bottom of some coconut trees.

Having been a party to that earlier case, Nei Tetu would hardly have stated before the Single Magistrate that she had no knowledge of the boundary.

However, the Single Magistrate did not have the benefit of the minutes of case No. 67/82. The parties before him were not legally represented and no doubt the importance of producing evidence of previous court decisions was not appreciated. Had the Single Magistrate known of that case he would have been able to compare a boundary already determined by the court with the competing claims of the parties before him. Nevertheless, the Single Magistrate's interpretation of Nei Tetu's evidence was obviously incorrect. She clearly stated that she had located a boundary with the respondent's mother. In our view, the Single Magistrate should not have let the matter rest there.

Ground 2

We could not find any indication in the minutes of the case before the Single Magistrate of how plan DGM No. 1/85 came to be admitted into evidence. None of the witnesses in the case referred to it, according to the minutes. In any event, the plan does not appear to have influenced the Single Magistrate's decision. He simply found that the plan showed that the appellant's land was larger in area than the respondent's land, but apart from that, the plan was ignored.

However, since the plan was put into evidence (on what basis we cannot say), we think that some effort should have been made to ascertain what it proved.

Ground 3

On the strength of a quite ambiguous answer by one of the appellant's witnesses, the Single Magistrate came to the conclusion that the pit in question was on the respondent's land.

The appellant's father, Teitoi Tabutoa, was asked the following question in cross-examination by the respondent:

17. "The breadfruit above the pit, is it your breadfruit?"
    

His answer was:

1. "We used to take breadfruit from it before, or is it your breadfruit?"
   

The Single Magistrate accepted that reply as confirmation that the breadfruit tree belonged to the respondent and was therefore within the respondent's land.

In our view, such a reply could equally have meant something like: "We had the right to take the breadfruit. Are you saying you had that right?" We do not think that the Single Magistrate was entitled to come to the conclusion he did without first getting the witness to state plainly what he meant.

We have been provided by counsel for the appellant with two extracts from the Pit Register. Page 73 shows that pit registered 4062 is on the appellant's land. Page 151 shows that pit registered 4063 is on the lands of both the appellant and the respondent.

The Single Magistrate did not have the benefit of those extracts. Nevertheless, since the parties were not legally represented, we think that the Single Magistrate should have called for the pit register. The question of the ownership of the pit in question was an important one because the appellant was claiming that it was one of the markers of her boundary. We do not think that the Single Magistrate should have left the matter where he did.

In our judgment, the proceedings in the lower court were unsatisfactory and the decision ought not be allowed to stand.

The appeal is allowed, the decision of the Single Magistrate is set aside, and the case is remitted to the magistrates' court for retrial.

THE HON R B LUSSICK
Chief Justice
(7 August 1998)

TEKAIE TENANORA
Magistrate
(7 August 1998)

BITIARE EKERA
Magistrate
(7 August 1998)