Kautu v Rinikarawa [1997] KICA 20; Land Appeal 13 of 1996 (25 March 1997)

IN THE COURT OF APPEAL OF KIRIBATI
LAND JURISDICTION

LAND APPEAL NO. 13 OF 1996

BETWEEN

NARIKI KAUTU
Appellant

AND

MAKIRITA RINIKARAWA
MANUERA TEBWEBWE
TOKIRA TEKARIMWI
N. EMA TENRIA
Respondents

Date of Hearing: 21 March 1997
Delivery of Judgment: 25 March 1997

Mr B Berina for the Appellant

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

The appellant is the owner of land 135e on an island at Marakei. The land is situated on the southern side of a body of water, known as the Baretoa Passage which formerly ran from the ocean to the lagoon, that is from west to east, but which has been completely closed off at the western end by land deposited by the accretion which is the subject of these proceedings. The appellant's land was on the southern side of the passage, and extended to the ocean on the west. Land 135a, which is owned by the respondent Nei Ema Tenria, adjoins the appellant's land, but is to the east of it. On the northern side of the passage are lands 128ka, 128ra and 128ta which are respectively owned by the other three respondents. As a result of the accretion the deposited area spreads across the passage and adjoins the lands of the appellant and Nei Ema on the south and those of the other respondents on the north of what was formerly part of the passage.

The magistrates found, and the High Court accepted, that the accretion began on the appellant's land and went on until it adjoined the lands on the other side of the passage. The question on which side of the passage the accretion began was a matter of dispute, but there is nothing before us which would justify us in departing from these concurrent findings, at least so far as they establish that the accretion moved from south to north. The magistrates gave Nei Ema the whole of the accretion adjoining her land. Perhaps this was done on the basis that part of the accretion commenced on her land. However that may be, it was conceded before us that the only challenge to the decision relating to the accretion to Nei Ema's land rested on an argument relating to an alleged custom, which it is convenient to consider immediately.

The evidence shows that the appellant had a fish trap in the water now displaced by the accretion, and the High Court said that the appellant and his family may well have had customary rights to set fish traps there. It may further be assumed, without deciding, that the appellant had the sole right to set fish traps there, and could have prevented others from doing so. It was argued on behalf of the appellant that this meant that when the water was covered as a result of the accretion, the resulting land belonged to the appellant. It was said that this conclusion was supported by custom, but there was not the slightest evidence of any custom of that kind. The High Court said that "we do not consider it possible to convert a right to set fish traps into a right to a title in land". In the absence of compelling evidence of a custom to the contrary, this must be correct.

It was submitted that there should be a retrial to enable the Court to receive evidence on whether or not in custom it is possible to convert a customary right to fish traps into a title to land. Any such evidence, if it is available, would obviously not be fresh evidence, and it would be contrary to principle to grant the appellant a new trial to allow him to present evidence which he did not seek to tender at the trial.

It follows that the appeal must be dismissed in the case of Nei Ema.

The magistrates divided the remainder of the area due to the accretion by a line drawn in about the middle of the passage, giving the land on the southern side of the line to the appellant, and that on the northern side to the respondents whose lands it adjoins. This decision was affirmed by the High Court.

The appellant submitted that he was entitled to the whole of this accretion by virtue of section 16(i) of the Lands Code the relevant part of which provides as follows:

"If a land accretes naturally towards the sea from an owner's land then the accretion belongs to the landowner upon whose land it accretes ........."

The Magistrates found that the land did not accrete naturally towards the sea, and that section 16(i) did not apply. The High Court agreed, saying that "the accretion was towards lands owned by other persons and was such as to actually adjoin those lands".

Mr Berina, who appeared for the appellant, submitted that the passage was "the sea" within the meaning of the section. We agree with this submission. Before it was closed the passage was a body of water, subject to the tides, and forming a channel between two islands, on one of which was situated the lands of the appellant and Nei Ema, and on the other the lands of the respondents.

The fact is that the land has accreted upon the lands of the respondents as well as on the land of the appellant. In that case, if the accretion was towards the sea within the meaning of the section, and if the words of the section are given their literal meaning, the accretion would belong to the appellant and the respondents. It would then seem necessary to make an apportionment between them. Mr Berina submitted that this would have the absurd result that the land would belong to the appellant until it had almost closed the passage, but that once it had reached the respondents' lands, part of it would become the lands of the respondents, thus divesting the appellant of what was previously his.

This absurd result may be avoided if the proper view is that at least when the accretion has reached mid channel it is accreting, not towards the sea, but towards the land on the other side.

This conclusion would give effect to section 16(i) on its proper construction. If the process of build-up should continue beyond the mid line it will not be towards the sea within the meaning of section 16(i) and the continuation of the build-up will not, at that stage, be the property of any of the existing land owners. However, should it continue to the far bank it will be an accretion to the land on that bank, and will belong to the owner of that land not by virtue of section 16(i) but by virtue of the common law, according to which an addition made to land by accretion belongs to the owner of the land to which it has been added: Southern Centre of Theosophy v South Australia (1982) A.C. 706; 49 Halsbury (4^th. Ed.) pars 294-299. This effect is what the courts below have decided and their decisions should not be disturbed.

For these reasons we consider that the High Court was correct in holding that the boundary between the lands was in the middle of the passage. There was nothing to suggest that the magistrates fell into error in fixing the boundary where they did.

The appeal must be dismissed. Nei Ema Tenria must have her costs but the other three respondents who did not appear are obviously not entitled to costs.

The order of the Court is:

Appeal dismissed.

Appellant to pay the costs of the respondent Nei Ema Tenria fixed at $131.

Vice President
Judge
Judge