Tautau v Attorney-General [1997] KICA 12; Land Appeal 07 of 1996 (25 March 1997)

IN THE COURT OF APPEAL OF KIRIBATI
LAND JURISDICTION

LAND APPEAL NO. 7 OF 1996

BETWEEN

ALICE TAUTAU
Appellant

AND

ATTORNEY GENERAL
in respect of the CHIEF LANDS OFFICER
Respondent

Date of Hearing: 20 March 1997
Delivery of Judgment: 25 March 1997

Mr D Lambourne for the Appellant
Mr T Tabane for the Respondent

JUDGMENT OF THE COURT
(Gibbs V.P., Connolly and Ryan JJ.A)

This is an appeal against a decision of the High Court in its appellate jurisdiction. The ground of appeal is that the Court erred in law in finding that the appellant was not entitled to be paid rent for an area of land that had accreted upon land already leased to the respondent, thereby depriving her of any remedy she might have for non-payment of such rent.

The appellant is the owner of land described as 797(e). This land was leased to the Government for a period of 99 years from 1 January 1959. The lease gives the approximate area as 1.66 acres, and the agreed rental as £5.10.2 per annum

There has been an accretion to the land. The Government allowed two persons to settle on the accreted land. The appellant sought in the South Tarawa (Lands) Court to have these persons evicted. She sought also compensation for their occupation of the accreted land. The basis of her case was that she had leased 1.66 acres to the Government at the rent stipulated for the lease of that extent of land; that any addition to that extent of land would attract further rent which had not been paid; and she was therefore entitled to re-enter the land. Her claims were allowed by that Court. An appeal to the High Court was however upheld. The learned Commissioner referred to s.12 (2) of the Native Lands Ordinance which was introduced by the Native Lands (Amendment) No. 2 Act 1983 on 12 August 1983. It provides:

"Subject to subsection 12(3) and to any specific provision to the contrary in a lease or sublease, the extent of land leased by a lease or sub-lease shall be deemed to and shall include any accretion of land after the commencement of the lease or sub-lease as the case may be, and conversely any erosion after the commencement of the lease or sub-lease as the case may be, diminishing the extent of' the land, shall be disregarded".

It was accepted by the parties before the learned Commissioner that s.12 (2) applied to leases entered into before the commencement of the Act. He held that the effect of s12 (2) was that the accretion was part of the lease, and that as the correct rent had been paid according to the lease the lessor, had no right of re-entry. Accordingly he allowed the appeal.

On the appeal to this Court it was not contested that the accretion formed part of the lease to the Government. The only question raised was as to the effect of s12 (2) on the liability of the lessee to pay rent for the land it had by accretion. In Clause 3 of the lease, it is provided:

"The Landowner and tenant that at intervals of seven years from the date of the agreement, the rate of rent shall be reconsidered between them in the light of the economic values then obtaining and shall be revised as may, be considered necessary. If they are unable mutually to agree to a revised rental, they agree to submit the matter to the District Commissioner for arbitration and to accept his award".

This provision has been superseded by the Rent Review Ordinance which came into operation in 1974. Section 4 (2) of the Ordinance provides that the rent reserved by an existing lease which commenced before the period of 5 years immediately preceding the day the Ordinance came into operation shall, notwithstanding any provision in the lease to the contrary, be reviewed by agreement between the parties on that day and thereafter at intervals of five years. Section 5 provides for a reference of the matter by the parties to the magistrates' court in the absence of agreement between them. This provides machinery for the parties to this lease to review the rent reserved by the lease, which includes any accretion to the land which is leased, and to have the matter determined by the magistrates' court if they are unable to agree. It is however clear that in this case the learned Commissioner was correct in saying that the lessee had no right of re-entry as the rent reserved by the lease had been paid by the lessee. That rent is payable for the land leased to the lessee as it is extended by accretion or diminished by erosion.

The appeal is dismissed.

Gibbs V.P, Connolly and Ryan JJ.A