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

Iabeta v Moniara [2001] KIHC 46; Land Appeal 101 of 1997 (18 May 2001)

IN THE HIGH COURT OF KIRIBATI
LAND JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Land Appeal 101 of 1997

Between:

KORERE IABETA
Appellant

And:

TIINA MONIARA
NONOURI TAKIRUA
Respondents

For the Appellant: Mr Tuarirake Teiwaki
For the Respondents: Mr Banuera Berina

Date of Hearing: 18 May 2001

JUDGMENT
(Ex Tempore)

The Court of Appeal allowed the appeal from our judgment of 7 November 2000. We had said (ex tempore):-

Mr Teiwaki has argued persuasively that the Single Magistrate has made mistakes in his judgment and so the appeal should be allowed. Mr Berina says all these things are matters of fact and we, on appeal, may not upset findings of fact.

After listening carefully to both lawyers we have come to the conclusion that all Mr Teiwaki's complaints do concern matters of fact, which were for the magistrates to find. We may not interfere therefore the appeal is dismissed.

From the Reasons of the Court of Appeal it seems the appeal from this court was allowed because, having simply said it was all a matter of fact, we refused to entertain the appeal further. Their Honours thought that such a blanket refusal was wrong. We should reconsider the appeal, "on the basis that the grounds of appeal are to be taken as alleging error of fact and law".

In accordance with the directions of the Court of Appeal we have now heard the appeal again.

Mr Teiwaki argued that the magistrate's verdict was against the weight of evidence. He referred us to two 1948 decisions (CN 378/48 and CN 393/48) to support his argument. To the contrary Mr Berina pointed to two passages of evidence in the transcript of the proceedings below which supported the respondents' case. Those passages are:-

1. From the evidence of the appellant:-
   
   17. And N. Kabwebwea owned land from Katangiman?
   1. Yes.
   17. And Takirua also from Katangiman?
   1. Yes.
   17. Is Nukantebike a single piece of land?
   1. Yes.
      
2. [Case adjourned to another date to be fixed. The Court on its own motion will call for further evidence from other independent sources i.e. appropriate persons who may have good knowledge of the place in dispute e.g., Old Men of Bonriki etc. They will be subjected to xxd by parties too.]
   

[The Court called Tainimaki Bwebwenimatang.]

When I was living here I knew an old man named Takirua. He was from Bonriki. I knew that he owned a land on Nukantebike. This is the place I saw him live on. I knew it to be his land. I knew also that he lived with his sister who was N. Kabwebwea. She lived south of Takirua. Takirua's grandchild came here after him, and he was called Moniara.

Mr Teiwaki admitted that the passages do support the respondents' case but argued that the magistrate was wrong to follow them in the light of the 1948 decisions: in the first passage we have quoted his client made a mistake when giving his evidence.

The principle of law is that provided there is believable evidence to support the finding of a lower court and that court prefers the evidence to evidence to the contrary, the decision should stand. It is for the lower court to evaluate the evidence and to decide which to accept and which to reject.

It appears that there is evidence in this case which it was open to the Court to accept and, once accepted, on which to base its decision. That being so the decision must stand.

We are afraid that the appellant's victory in the Court of Appeal is a pyrrhic one – it has done him no good – because the result of our reconsideration has been to come to the same decision as we had reached before, even though this time by consideration of the merits.

The appeal is dismissed.