Kibae v Ueantabo [1997] KICA 19; Land Appeal 03 of 1996 (25 March 1997)

IN THE COURT OF APPEAL OF KIRIBATI

LAND JURISDICTION

LAND APPEAL NO. 3 OF 1996

BETWEEN

BAKATI KIBAE & ORS
Appellants

AND

RIBAITI UEANTABO & ORS
Respondents

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

Mr T Teiwaki for the Appellants
Mr D Lambourne for the Respondents

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

The appellants claim to be registered as co-owners, with one Tokanang (the predecessor of the respondents) to certain lands Boura and Tabweang on Makin. In both cases the lands register shows Tokanang mt mm as the owner of ³/₄ interest, the remaining ¼ belonging to the chief and his family. However 2 documents, produced from the archives, and forming exhibits A1 and A2 in the proceedings, show the names of Ribaua Bauro and Nakibae Bauro as claimants to these respective lands, and show the name of Tokanang as the existing owner. It is clear that these documents were working papers of the Native Lands Commission and that they show the names of Ribaua Bauro and Nakibae Bauro as claimants to the lands.

On 23 March 1995 the appellants applied to the Magistrates Court (Lands) at Makin to be registered as co-owners of the lands which they claimed had been registered by Ribaua Bauro on behalf of her brothers and sisters (including her brother Nakibae) in 1953. Ribaua Bauro was one of the elders of the appellants. They claimed that they did not know why their names did not appear in the Land Register. The magistrates decided that the land record should remain as it was until authority was given regarding registration pursuant to s.59 of the Magistrates' Courts Ordinance.

The matter came on again before the Magistrates' Court (Lands) at Makin on 20^th November 1995. The magistrates had before them a letter from the Lands Office of 3^rd August 1995 which referred to Exhibits A1 and A2 and asked the court to enter the names of Nakibae Bauro and Ribaua Bauro in the Land Register in accordance with s.59 of the Magistrates' Courts Ordinance. The respondents requested an adjournment to seek further information but this was refused. After a short hearing the magistrates held that the lands should be registered in accordance with the letter of 3^rd August 1995.

On 4^th December 1995 the Chief Lands Officer again wrote, this time saying that the names of Nakibae and Ribaua were registered as claimants, not owners. He asked the court clerk to leave the owners as they were before he wrote his earlier letter, and said that it was the responsibility of the inheritors through Nakibae Bauro mt mm and Ribaua Bauro to appeal to the High Court to be registered. This letter was received too late for the magistrates to act on it.

It is clear that the Land Register shows Tokanang Timau mt mm as the registered owner of the relevant interest.

The respondents appealed to the High Court, which held that Ribaua and Nakibae were not registered, and that s.59 gave no authority to rectify the register if it contained a mistaken entry. Accordingly the High Court allowed the appeal and set aside the order made by the magistrates on 20^th November 1995.

The High Court received evidence called by both parties as to the practice of the Native Lands Commission. It was submitted before us that the High' Court had no power to receive this evidence. Reliance was placed on the proviso to s.34 of the Magistrates' Court Ordinance in support of this submission. Section 34 gives judges of the High Court an original jurisdiction concurrent with that of magistrates, but the proviso goes on to state that "the judges of the High Court shall not have any first instance jurisdiction in respect of land causes and matters". This, it was said, prevents a judge from receiving further evidence in a land appeal. That however is not the effect of the proviso, which is simply designed to prevent a judge from hearing a land matter in the first instance. The proviso says nothing regarding the evidence that may be received on an appeal.

A second ground of appeal was that the High Court wrongly received in evidence the letter of 4^th December 1995 from the Chief Lands Officer. However the decision of the High Court was not based on the letter which is not even mentioned in the judgment of the Court.

The substantial ground of appeal was that the proper inference to be drawn from exhibits A1 and A2 was that the claims of Ribaua Bauro and Nakibae Bauro were not disputed, and should have been registered. The failure to register them was, it was said, a mistake which the magistrates' court could rectify under s.59 of the Magistrates' Courts Ordinance. That section provides as follows:

"The court may, subject to the approval of the Chief Lands Officer, register or cause to be registered in the register of native lands any title to native land which it finds to have existed at the time of the inquiry by the Commission held on the island but which was not registered by the Commission:

Provided that no judgment or order of the Commission shall thereby be revised or revisited"

This section should be read in the light of s.4 of the Native Lands Ordinance which, subject to an immaterial provision, states that titles to native lands registered by the Commission as evidenced by a register of native lands shall be indefeasible. If the Commission has registered one person as the owner of a parcel of land, the title of that owner will not be indefeasible if a magistrates' court can find that some other title to that land which existed at the time of the Commission's inquiry was not registered and can register that other title. If the other title is not that of a co-owner, but of an absolute owner, the existing title, so far from being indefeasible, will be entirely displaced.

These considerations lead inescapably to the conclusion that s.59 is not intended to apply to land to which a title is already registered. This conclusion is supported by the proviso to s.59, since if the Commission has ordered that one person should be registered as owner, the order will be revised or revisited if another person is registered as owner or co-owner. In other words, s.59 can be applied only where no title has been registered but the court finds that a title did exist.

We may add that we are by no means satisfied that the Commission did mistakenly omit to register Ribaua Bauro and Nakibae Bauro, but in the view that we have taken of the effect of s.59 it is unnecessary to decide that question.

The High Court rightly decided that the magistrates had no power to make the order that they did.

The appeal is dismissed.