SMEC v Temwakamwaka Landowners [1998] KICA 4; Land Appeal 08 of 1997 (9 March 1998)

IN THE COURT OF APPEAL OF KIRIBATI
LAND JURISDICTION

LAND APPEAL NO. 8 OF 1997

BETWEEN

SMEC
Appellant

AND

TEMWAKAMWAKA LANDOWNERS
Respondents

Date of Hearing: 6 March 1998
Delivery of judgment: 9 March 1998

Ms T Beero for the Appellant
Mr T Teiwaki for the Respondents

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

This appeal is brought from a decision of the High Court dismissing an appeal from a decision of the Magistrates' Court (Lands) at Tabiteuea North declining to strike out the proceedings before it on the ground that it had no jurisdiction to entertain them. The process by which proceedings were instituted in the Magistrates' Court is not included in the record but it appears that the present Respondents, the landowners of Temwakamwaka, have claimed $500,000 to compensate them for damage caused to their land by the Appellant SMEC, an Australian company which was building a causeway in Tabiteuea North and which is indemnified by the Government of Kiribati against any claims arising from the project. It further appears that it is common ground that during construction of the causeway, some employees of the Appellant took gravel from the Respondents' land without first obtaining the Respondents' consent. The Appellant contends that the claim is one in trespass and that the Magistrates' Court had no jurisdiction to hear it.

The appeal was not instituted within the time prescribed by the Rules of the Court of Appeal but the Respondents have not suffered any prejudice for that reason and it is obviously convenient that the question of jurisdiction should be determined before the matter goes to trial, because of the importance of the matter and because witnesses may have to be brought from Australia. The grant of leave to appeal out of time was not opposed.

The jurisdiction of the Magistrates' Court is conferred by Section 23 of the Magistrates' Court Ordinance which gives every Magistrates' Court, amongst other things, jurisdiction in the civil causes and matters for the time being set out in Schedule 1 "and in land causes and matters the jurisdiction for the time being set out in Schedule 3". The expression "land causes and matters" is defined in section 2 of the Magistrates' Court Ordinance to mean, unless the context otherwise requires:

"All causes and matters concerning land, land boundaries and transfers of title to native land registered in the Register of Native Lands and any disputes concerning the possession and utilisation of native land, and includes causes and matters concerning native wills, native adoption, native customary fishing rights, native leases and native paternity, and all matters referred to in Part VI and sections 35 and 36 of the Native Lands Ordinance".

Schedule 1 of the Magistrates' Courts Ordinance provides that every Magistrate's Court shall have jurisdiction to entertain, hear, try, determine and otherwise deal with (amongst other things) any personal suits whether arising from contract or from tort, in which the cause of action arose within the jurisdiction and where the damage claimed is under $3,000, provided that no Magistrates' Court shall have jurisdiction in a matter if original jurisdiction to hear and determine that matter is conferred on a court composed under section 7(4) unless such court is so composed. Section 7(4) requires that in land causes and matters the court shall be composed of 5 magistrates, including at least 3 from a Lands Magistrates' Panel.

Schedule 3 of the Magistrates' Courts Ordinance in clause 3 provides that every Magistrates' Court composed of five members in pursuance of section 7(4) of the Ordinance "shall have jurisdiction to hear, try, determine and otherwise deal with the subject matter of Part VI”. Part VI is headed "Land Causes and Matters". The Part includes sections 57 and 58. Section 57 provides as follows:

"All persons who own or who are eligible to own native lands shall be subject to the jurisdiction of the magistrates' court composed as provided in sub-section (4) of section 7 or deemed to be so composed".

Section 58 provides as follows:

"(1) Subject to sections 31(1) and 33 of the Native Lands Ordinance the court shall hear and adjudicate in accordance with the provisions of the Lands Code applicable or, where the Code is not applicable, the local customary law, all cases concerning land, land boundaries and transfers of title to native land registered in the register of native lands and any disputes concerning the possession and utilisation of native land.

(2) Every attempt to transfer, transmit or otherwise deal with native land except in accordance with the provisions of this section shall be null and void and of no effect".

The Part goes on (in Sections 59-65) to deal with unregistered titles, native wills, native adoption, customary fishing rights, native leases, court registers and paternity.

Sections 35 and 36 of the Native Lands Ordinance, which are also referred to in the definition of "land causes and matters" deal respectively with complaints concerning unlawful occupation of native land and the removal or interference with boundary marks.

The question for decision is whether a Magistrates' Court (Lands) has jurisdiction to hear and determine an action for trespass to native lands when the amount claimed exceeds $3,000.

Trespass consists of an unjustifiable intrusion by one person upon land in the possession of another, and it is a trespass to remove any part of the soil of land in the possession of another. In one sense, of course, an action for trespass to land concerns the land on which the trespass was committed, although the action is based on the wrongful act of the person who committed the trespass. In the High Court it was held that the words of sections 2 and 58 of the Magistrates' Courts Ordinance are plain and unambiguous and should not be given a restricted meaning.

It is well established that in construing a section of an Act, the section should not be read in isolation, but must be read in the context of the Act as a whole. The general provisions of the Act may indicate that the special words of a section are to be given a limited meaning. Having regard to the nature of the land causes and matters which are specifically mentioned in section 2 and Part VI it would seem incongruous to regard personal actions for contract and tort as land causes or matters, even though land was involved. However there are two provisions which support the view that personal actions are not within the jurisdiction of a Magistrates' Court (Lands). In the first place, Schedule 1 specifically confers jurisdiction on Magistrates' Courts in personal actions of contract or tort, but only when the claim does not exceed $3,000. It would be anomalous if a Magistrates' Court in its land jurisdiction could entertain an action in contract or tort involving land if the claim exceeded $3,000. Secondly, section 58 would have the effect that if the Magistrates' Court (Lands) had jurisdiction in the present case it would be required to hear and adjudicate in accordance with the local customary law. So far as counsel have been able to inform us, there is no customary law which governs the assessment of damages in an action for trespass of land, but in any case it cannot be supposed that the Legislature intended that the law to be applied in a substantial action for contract or tort would vary according to the forum chosen.

For these reasons the Magistrates' Court (Lands) had no jurisdiction in the present case.

The order of the Court will be: Appeal allowed. Order of the High Court set aside. In lieu thereof order that the proceedings in the Magistrates' Court of and for the District of Tabiteuea North in Case No. 47/96 be struck out for want of jurisdiction.

Vice President: Gibbs
Judge of Appeal: Conolly
Judge of Appeal: RyanJJ.A