Kaibakia v Tabokai [1997] KICA 23; Land Appeal 09 of 1996 (25 March 1997)

IN THE COURT OF APPEAL OF KIRIBATI

LAND JURISDICTION

LAND APPEAL NO. 9 OF 1996

BETWEEN:

AKINETI KAIBAKIA
AND SISTERS
Appellants

AND:

TEBIKAU TABOKAI
Respondent

te of e of Hearing: 20 March 1997
Delivery of Judgment: 25 March 1997

Mr T Teiwaki forAppellantsMr B Berina for the Respondent

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

On 26 April 1994 the Magistrates' Court (Land) at Abaiang heard an application by the present appellants, whose claim was, to quote the words of the record, for "eviction of babai plants from babai pit R3900 Bikenni 2960". The respondent, against whom the claim was made, said that he was not the registered owner of the pit, but that he had planted about 70 babai plants in it. He did not oppose the order sought, but requested 2 months to enable him to remove the plants and asked for a pit to which he could remove them. The magistrates found that the appellants were the registered owners of the pit R 3900, and ordered the respondent to remove all his plants within 2 months.

On 30 January 1995 the magistrates made an eviction order; the application for the order was made ex parte and it appears that the respondent had no notice of it.

The respondent was granted leave to appeal out of time from the order of 26 April 1994. On the hearing of the appeal in the High court, fresh evidence was called for the respondent. It is not disputed that the respondent is the owner of babai pit R 3899. His case was that when he did not oppose the eviction order he was misled by the Babai Pit Register, which he has since found to be erroneous. The pit from which the order evicted him was, he claimed, his pit and not pit R 3900.

The High Court allowed the respondent's appeal. The material before the High Court established clearly enough that there were errors in the Babai Pit Register. In its judgment the court said:

"The register then cannot be relied upon. The names of the owners and hence their title may well be correct. However the physical location of the pits is not correct in the three instances described" (earlier in the judgment) "and on the balance of probabilities in other instances also".

They went on to say that it could not be said with any certainty that the pit from which the appellant was evicted was not in fact his own, and that the magistrates should have compared the register entries with the physical location of the pits on the ground, and would then have been able to expose any erroneous entries in the register and rectify them. They added:

"We are satisfied that the magistrates have the power to rectify the register as to location but not as to ownership".

They remitted the matter to the magistrates for a retrial in the course of which the matters stated in their judgment must be taken into account.

The course adopted by the High Court seems a just and convenient solution in the confused situation revealed by the evidence, which does not show with any clarity where the pits were situated, and does not reveal whether customarily it is possible for one person's pit to be on another person's land.

Mr Teiwaki, who appeared for the appellants, relied on three grounds of appeal.

First it was submitted that the High Court was wrong in stating that the magistrates had the power to rectify the Pit Register as to location. The submission was that the title to a pit conferred by the Pit Register was indefeasible and that to change the location to a pit is to change the title to the pit.

By section 4 of the Native Lands Ordinance, titles to "native lands" registered by the Native Lands Commission as evidenced by a register of native lands are indefeasible. "Register of native lands" is defined by the same section to mean "land owned by a native or natives".

Section 14 of the Native Lands Commission Ordinance gave the Lands Commission power to establish on every island where it sat a Register of Native lands. There is nothing in the words of the Ordinance itself to indicate whether a babai pit was regarded as a native land, or whether a Pit Register was intended to be a Register of Native Lands within the meaning of the section.

By section 64(1) of the Magistrates' Courts Ordinance it is provided (amongst other things) that each magistrates' court shall keep registers and shall thereon register or cause to be registered "(b) titles to garden pits, ponds, fish traps and sea walls constructed with its permission subsequent to the registration of titles by the commission". This provision suggests that garden pits were registered by the commission.

The question whether a Babai Pit Register is a "register of native lands" within section 4 of the Native Lands Ordinance and thus confers indefeasibility on a registered title to a babai pit, is one of importance. We have heard no evidence of custom, and consider that on a question of this kind the Chief Lands Officer, or the Government, should be given an opportunity to be heard before it is decided.

However, assuming that the title conferred by the Babai Pit Register is indefeasible, it remains necessary to determine the location of any particular pit to which the register refers, just as it may be necessary to determine the boundaries of a block of land the title to which is indefeasible. It was within the power of the High Court to remit the matter to the magistrates, so that it could be determined where the respondent's pit, R 3899, was situated.

Since this is an appeal from an eviction order, this conclusion would be enough to determine the matter. However the order of the High Court appears to direct the magistrates to rectify the register as to location if necessary. The Magistrates' Courts Ordinance does not give a Magistrates' Court (Lands) express power to rectify any register: compare section 59, which deals with unregistered titles. However on an appeal in a land matter the powers of the High Court are the same as those which it would have if constituted by a judge sitting alone: section 77 of the Magistrates' Courts Ordinance. This includes the power to give such directions as the court may consider appropriate for the purpose of ensuring that justice is duly administered by the Magistrates' Court (Lands): see section 89 of the Constitution. It follows that the High Court had the power to order the magistrates to rectify the Babai Pit Register, provided that the rectification did not impair the indefeasibility of any title, even if the magistrates, at first instance, had no power of rectification. An amendment as to location would merely fix the situation of a pit without affecting the title to it.

Accordingly this ground of appeal fails.

The second ground of appeal is that the High Court erred in allowing the appeal because the order made by the Magistrates' Court was based on a claim which was undisputed.

It is true that the order was not opposed. Nevertheless it was not a consent order. The respondent did not oppose the order because he believed, mistakenly as he now claimed, that the pit in which his plants were planted was pit R 3900. If he was in fact mistaken, the fact that his mistake led him to offer no opposition to the order sought should not preclude him from seeking to correct the error. Only a rehearing can establish whether his belief was, as he claims, a mistaken one.

The final ground of appeal was that the High Court erred in basing its decision on fresh evidence. The argument in support of this ground, which was based on the proviso to section 34 of the Magistrates' Court Ordinance, is the same as that which was considered and rejected in Bakatai Kibae v Ribaiti Ueantabo, Land Appeal No. 3 of 1996. For the reasons there given, we hold that the proviso to section 34 does not prevent the High Court from receiving fresh evidence when hearing an appeal in a land matter.

The appeal is dismissed.