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

HCLA 2/90

BETWEEN:

ARETI BIINE
BIINE IENRIBARO
Appellants

AND:

TIARE TOKATAAKE
Respondent

No appearance of 1st Appellant
2nd Appellant in person
Respondent in person

Date of Hearing: 10 June 1997

JUDGMENT

There was no appearance of the first-named appellant Areti Biine when this case was called on for hearing. She was served with a Notice of Hearing on the 7th May 1997. The second-named appellant Biine Ienribaro informed us that she had gone to Tarawa but did not enlarge on that. In any event, Biine is prepared to present the appeal and it will proceed in the absence of Areti.

The appeal is against a boundary determination made by the Abemama Land Magistrates' Court on 20 December 1989 in case No. 14/89. The ground of appeal is that the magistrates erected a boundary stone in a wrong position.

The minutes of the case show that the magistrates visited the site with a map. We cannot identify from the minutes exactly what sort of map it was but it was probably a survey plan of the area. The respondent told us that he remembered that the magistrates determined the boundary using a map and that they uncovered an old boundary stone.

The boundary in issue runs between Tuangaona 213-u (the appellant's land) and Tuangaona 213-o (the respondent's land).

Biine told the lower court that he had been familiar with the size of his land since he was a child and it was 2 chains and 51 ft wide as shown on the map. However, he was corrected by the evidence of Areti, who was his co-defendant in that case. She said that her name had been registered on half of Biine's land. This means of course that Biine's land would then have a width of half of the measurement shown on the map, which would be 1 chain 25½ ft.

It can be seen from the sketch prepared by the magistrates how they determined the boundary. They located an old boundary stone on the far boundary of Biine's land and from there measured off a distance of 1 chain 25½ ft to the opposite boundary of Biine's land which separates it from the land of the respondent. The magistrates then erected a new stone on that boundary in line with the old stone on the other boundary.

We cannot see that in fixing the boundary in that way the magistrates fell into error. In fact, nor can the appellant. We showed the magistrates' sketch to Biine and he agreed that the position of the new stone is correctly shown on the sketch. However, he alleged that the location of the stone in reality is not as shown on the sketch but further into his land. He marked with an X on the magistrates' sketch the spot where he alleges the stone was really laid.

We cannot accept that the magistrates would measure out the appropriate distance, prepare a sketch showing where the new stone was laid in relation to that measurement, and then place the stone somewhere else. We suspect that if Biine took the trouble to make his own measurements he would find that the distance from the old boundary stone to the new boundary stone is 1 chain 25½ ft as shown on the magistrates' sketch.

If, on the other hand, someone has moved the boundary stone laid by the magistrates then that is not something that can be raised by way of appeal. The parties could determine by themselves the correct position of the stone working from the magistrates' sketch. If they could not reach agreement then it would be necessary to apply to the magistrates' court to reset the stone in accordance with the decision in case No. 14/89.

It follows from what we have said that the appellant has failed to show that the magistrates were in error and the appeal therefore cannot succeed.

The appeal is dismissed accordingly.

The appellant is advised that he has a right to appeal to the Court of Appeal within 6 weeks.

THE HON R B LUSSICK
Chief Justice
(12/06/97)

TEKAIE TENANORA
Magistrate
(12/06/97)

BETERO KAITANGARE
Magistrate
(12/06/97)