(1) Where the owner of
land satisfies the court at the place nearest to the place where he proposes
to construct a dividing fence, that he has made reasonable inquiries and has
been unable to ascertain the whereabouts of the owner of the adjoining land
for the purpose of giving a notice as required by section 8, the court may,
upon application in the prescribed form by the first-mentioned owner for an
order authorising the construction of a dividing fence as set out in the
application, proceed ex parte to make an order authorising the applicant to
construct a fence of the kind specified in the order upon the boundary or line
specified therein.
(2) Where a person
constructs a dividing fence in compliance with an order made under subsection
(1), if afterwards during the continuance of that fence, the person ascertains
the whereabouts of the owner of the adjoining land, whether or not such owner
was the owner of the land at the time of the construction of the fence, the
person may give to such owner a copy of the order.
(3) The owner to whom
the copy of the order is given shall, after the expiration of one month from
the date the notice is given to him, be liable to pay to the person who
constructed the fence half the value of the fence at the date of the giving of
the copy of the order.
(4) If the owner to
whom the copy of the order is given considers the order inequitable, the court
may, on an application by that owner made within one month after the giving to
him of the copy of the order —
(a)
relieve the applicant from a portion of the sum claimed as the value of the
fence; and
(b)
order that the position of the fence be altered on such terms as the court may
think fit.
(5) The value of the
fence shall be ascertained as soon as practicable after the giving of the copy
of the order, pursuant to subsection (3), and, in default of agreement between
the owners, the value may, on an application by either of them, be determined
by the court.
(6) Where an owner has
obtained an ex parte order under subsection (1) he shall, within 21 days, give
or cause to be given to the chief executive officer of the local government of
the district in which the fence referred to in that order is to be
constructed, a copy of that order, and if the owner fails to comply with this
subsection he is not entitled to recover any portion of the cost of
constructing the fence from the owner to whom the copy of the order is given
under this section.
[Section 11 amended: No. 14 of 1996 s. 4; No. 59
of 2004 s. 141.]