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Mauerere v Tiata [2024] KIHC 1; Civil Case 17 of 2021 (2 January 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 17 OF 2021

BETWEEN:
IAIRA MAUERERE
Plaintiff

AND:
TEBANIERA TIATA
ATTORNEY GENERAL
Defendants

Date of Hearing: 6 SEPTEMBER, 23 AND 29 NOVEMBER 2023
Date of Judgment: 2 JANUARY 2024

Appearances: Ms. Taaira Timeon for the Plaintiff
Mr. Monoo Mweretaka for the Defendants

JUDGMENT

Introduction:

1. By Writ of Summons, the plaintiff sues the first defendant for trespass and the second defendant, the employer of the first defendant, for vicarious liability. The plaintiff gave evidence and stated that on 9 September 2019 and 27 November 2019, the first defendant entered his land, Manoku 634-o, and positioned boundary marks without his consent.
   
2. The first and second defendants agree that an employer/employee relationship exists between them. The second defendant also agrees that they would be vicariously liable for their employee's conduct, the first defendant, only if the court found the first defendant liable. Therefore, vicarious liability is not an issue.
   
3. Before I proceed to discuss the evidence, I should first address the issue raised by Counsel for the plaintiff that there is a conflict of interest regarding the legal representation of the first defendant by Counsel from the Attorney General's Office as both defendants must argue against the responsibility of paying compensation. This is a valid point, but since the second defendant has agreed to be vicariously liable for the conduct of the first defendant, there is no conflict.
   

Evidence and Analysis

4. The first defendant was called to give evidence from the witness box in which he tendered his affidavit already prepared for this case. His evidence is that he entered the land lawfully and acted within the authority of the Native Lands Ordinance, Cap 61. Section 22 of this Act deals with the power of the surveyor. It states that;
   

“22(1) A surveyor may at all reasonable times enter and remain upon any land he is required by or under the Ordinance, by any court or by the Chief Lands Officer to survey or mark out and upon any neighbouring land.

(2) A surveyor may establish in or upon any land referred to in subsection (1) survey marks in such manner and number as he may think fit and may dig up any ground for that purpose and may cut down and remove any trees, crops or other growth and remove or alter any fence or other property which may obstruct any survey or boundary line.”

.

5. The first defendant explains that in 2019, the Director of Lands received a subpoena from the magistrate court for a case between one Erena Perry and Others for the eviction to be carried out on the land Tengea 632i. As a surveyor, the first defendant attended to this subpoena on behalf of the Director of Lands. According to him, all lands surveyed have been entered into their system, so those not in their system would be lands that have not been surveyed, even if the courts have determined their boundaries. It is the responsibility of the land owners to apply for the land surveyors to survey their lands following their boundary determination minutes so that their lands can be entered into the Lands Department system. Tengea 632i is in their system, which means it has been surveyed before, so his purpose on the land at that time when attending to the subpoena was to relocate the boundary marks of Tengea pursuant to CN 590/93.
   
6. The first defendant submits that the land he surveyed was Tengea and not Manoku, as claimed by the plaintiff. He mentions that he did not know where Manoku was on the ground as this land was not in their system, which means Manoku had yet to be surveyed. He was cross-examined about the land list, which has Manoku, Tabontengea, and Tengea, and that as a result of his survey, the two plots Manoku and Tabontengea were left out. He was firm in his response that he did not know where Manoku and Tabontengea were located on the ground as they were not in their system. He was only doing his work on Tengea following the record in their system. He added that the land list is merely a list that does not show the location of the lands on the ground.
   
7. The plaintiff also gave evidence through his affidavit as follows: In magistrate court in case number Betlan 421/19, Erena Perry applied for his eviction from her land, Tengea, but according to him, he was living on his land called Manoku. He claimed the first defendant entered Manoku but not Tengea without his consent to establish the boundaries of Tengea following case 590/93, which has not been concluded; the first defendant could not do his survey based on this court minute. According to the plaintiff, the order of lands listed in the land list shows Tengea, followed by Tabontengea, and then Manoku, which means Tabontengea is located between Tengea and Manoku. As a result of the first defendant’s work, the plaintiff was deemed living on Tengea, the land belonging to another person, Erena Perry. When crossed-examined that Manoku had not been surveyed, he stated that his father had surveyed it; otherwise, how else had his family been living on the land when they did not know their boundaries? When asked to provide the minutes, he said he could not but would look for it.
   
8. Section 22 of the Native Lands Ordinance, as quoted in paragraph 4 above, recognises that the land surveyors can enter any land to do their work in regards to establishing survey marks or do anything else for that purpose if they are required to by a) the Native Lands Ordinance, b) any court, and c) the Chief Lands Officer.
   
9. My understanding from the evidence presented before this court from both the first defendant and the plaintiff is that there was an eviction case, Betlan 421/19, against the plaintiff by one Erena Perry from her land, Tengea 632-i/2. The first defendant attended to a subpoena by the magistrate court in Betlan 421/19 to go onto the land, Tengea, to identify or relocate its boundaries. Tengea is already in the Lands Department system, so the first defendant believed he was working on Tengea 632-i/2 at that time. The plaintiff believed the first defendant was on his land, Manoku. However, Manoku was not in the Lands Department system, which must mean that Manoku has yet to be surveyed.
   
10. I understand that the nature of the dispute arises from a land boundary or the location of the lands Tengea and Manoku and that the plaintiff claimed the first defendant trespassed onto his land, Manoku. In contrast, the first defendant claimed he was on Tengea according to their system. Which of these claims is true is not for this Court to determine; it should be a matter for the lands court to deal with. The legal issue before this court is whether or not there has been a trespass by the first defendant. I believe there has not been a trespass because the first defendant entered the land under the direction of the magistrate court in Betlan 421/19 when they subpoenaed the Director of Lands to attend to the task of identifying or relocating the boundaries of Tengea 632-i/2. Pursuant to s22 of the Native Lands Ordinance, the surveyor can enter any land to survey boundary marks or the like. Thus, the first defendant's presence on the land is legally authorised.
    

Conclusion:

11. Given the above reasons, the plaintiff's case against the first defendant is dismissed.
    
12. There is no case against the first defendant, so the second defendant is not liable.
    
13. The first and second defendants are entitled to the cost of this proceeding to be agreed or taxed.
    

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice