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

Betero v Binauea [2024] KIHC 48; HCLA 51 of 2014 (29 October 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT LAND APPEAL 51 of 2014

BETWEEN: Rita Betero
Appellant

AND: Taake Binauea
Respondent

Date of Hearing: 1 October 2024
Date of Judgment: 29 October 2024

Appearances: Mr Banuera Berina for the Appellant
Ms Maere Kirata for the Respondent

JUDGMENT

Background

1. This appeal challenges the Magistrates Court’s judgment in BD 57/09, delivered on 27 June 2014.
   

Amended Grounds of Appeal

2. There are three grounds of appeal as amended on 2 December 2023 as follows;
   

Ground 1- that the learned single magistrate erred in law in putting undue weight on the remarks made in High Court Land Appeal 87/86, where the High Court stated that land 648u is different from land 648o in that the comments made by the High Court in that appeal were made in

(a) Ignorance of the decision in case number 41/82, which determined the location of 648u.
(b) Ignorance of an admission made by N.Taake in case number 41/82, where she admitted to the court that she obtained her land from Etei.

Ground 2- the learned single magistrate erred in law and in fact in finding that land 648o is different from land 648u, which finding caused her to find that 648o and 648u do not share a common boundary in that in making such a finding, the single magistrate contradicted the finding of the High Court in High Court Land Appeal 16 of 2009, where the High Court accepted that the meaning of the words “that land 648/o and 648/u is one land” means that lands share a common boundary.”

Ground 3- That the learned single magistrate erred in interpreting the findings of the Lands Court, in case number 41/82 as meaning that the Lands Court, in that case, did not establish the boundary between the lands 648/o, 648/u and 648/m in that the claim in that case was the claim by Nei Taake to find her land. The court did not need to erect her boundary because the boundary of her land with the land 648m was the same as the boundary of 648o. Her land 648u was the same land as 648o, and for that reason, there was no need to establish a different boundary for her land as her land shared a common boundary with 648o.

Submissions and Analysis

3. The Appellant’s main argument is that the lands Tokaibure 648o and 648u share the common boundary following the decision of CN 41/82. BD 57/09 was supposed to be conducted following the direction of CN 41/82, but the court's decision in BD 57/09 indicated that the two lands, 648o and 648u, are different and do not have the same boundary.
4. The Respondent’s position is that the decision of the magistrate court in BD 57/09 when determining the boundaries of the lands in question was based on the evidence before it and did not contradict the conclusion of CN 41/82 because the location of 648u was not pointed out on the ground in that case. CN 41/82 only mentioned that the boundaries of the four plots had been determined before, so there was no need for a boundary determination.
5. Our analysis is that CN 41/82 mentioned that Nei Taake obtained her land from Terea or Etei, but it has been halved. The decision also stated that the boundaries of the lands 648i, 648o, 648u, and 648m have been fixed and that plots o and u are one land. However, it did not reference any cases that determined the boundaries.
6. In the other case, HCLA 87/86, we also note that it did not show where 648u was on the ground. It only stressed that the registration on 648o cannot have any bearing on 648u, which belongs to Nei Taake, who has been registered over it for 39 years since 1947. The decision mentioned that from the decision of CN 111/49, the land Tokaibure 648o was registered ½ to Etei and his brothers from the second spouse, and the other half was given to Nei Tebikoua and sister from the first spouse. So, Anterea's argument that Nei Taake did not have land in Tokaibure was dismissed.
7. The parties’ submission mainly relied on the above two cases, CN 41/82 and HCLA 87/86. Since none of these two cases identified the boundary of 648u, the magistrate court in BD 57/09 must determine this issue from the parties' evidence. However, we agree with the Appellant that the decision on appeal seemed to indicate that plots 648o and 648u are different lands, which contradicts the finding of HCLA 16 of 2009.
   

ORDER

8. For the reasons mentioned above:
   
   • - the appeal is allowed,
     
   • - the case is remitted to the magistrate court for rehearing, considering the relevant court decisions, particularly HCLA 16 of 2009.
     
   • - costs for the Appellant, to be agreed or taxed.
     

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice

RETETA RIMON TITAN TOAKAI
Land Appeal Magistrate Land Appeal Magistrate