Korina v Mwemwe [2001] KICA 16; Land Appeal 01 of 2000 (5 April 2001)

IN THE KIRIBATI COURT OF APPEAL
LAND JURISDICTION
HELD AT BETIO, KIRIBATI

Land Appeal No. 1 of 2000

BETWEEN:

BWEREBWERE KORINA
Appellant

AND:

BWEBWENTEKAI MWEMWE
Respondent

Before: Casey JA
Bisson JA
Tompkins JA

Counsel: Mr T Teiwaki for the appellant
Mr B Berina for the respondent

Date of Hearing: 2 April 2001
Date of Judgment: 5 April 2001

JUDGMENT OF THE COURT

[1] This is an appeal against the High Court in its Lands Jurisdiction dated 18 February 2000, in which it set aside the decision of the Single Magistrate in South Tarawa Magistrates Court case 80/97, who had ordered that the respondent be registered along with the appellants over land known as Tabonteaba 799i in Bairiki. The land was formerly the property of their great-grandmother Nei Kaua, and the parties are first cousins. The High Court referred to an earlier decision of the South Tarawa Magistrates Court (46/78 of 10 August 1978) concerning the registration of the respondents to the estate of their father, Mwemwe Kabua, but there was no evidence to indicate that the subject land had been registered in his name as successor to his father, who was registered in 1969. The land register for South Tarawa had disappeared.

[2] The Court derived assistance from its earlier decision in Land Appeal 79/81 and we quote the following passage from its decision now under appeal, altering the references to appellants and respondent to conform with their descriptions in the present appeal:

"That case [79/81] concerned an appeal by Monika Tonana (on behalf of her children, the present [Respondent] against a decision of the Magistrates' Court registering title to the subject land in the name of Toakai, son of Bauro. Bauro is the eldest son of Tekanene, and the brother of both the [Respondent's] father and the [Appellant's] mother. Toakai's argument in that case was essentially that of the [Appellant] in the case presently under appeal. He claimed to be entitled to registration over Tabonteaba 799i as a descendant of Nei Kaua. The Magistrates, unaware of the decision in case 46/78, allowed Toakai's claim. On appeal, the Court were informed of the existence of the earlier case and, more importantly, took the opportunity of inspecting both the old and the new land registers. They were satisfied as to the validity of the [Respondent's] title, granted to them in case 46/78. We can infer from this that the 'new' land register must have revealed a legitimate chain of title from Nei Kaua, through Mwemwe, to the present [Respondent]. The appeal was allowed, the right of the [Respondent] alone to the subject land was confirmed and Toakai's father's name was expunged from the register. Given this result, it is difficult to see how we can possibly come to a different conclusion in this case. The Single Magistrate was bound by the judgment in Land Appeal 79/81, and he fell into error by not following it".

[3] In the amended notice of appeal to this Court the appellant claims that the High Court erred in law in not taking into account that the respondents' title to the land did not in any way affect registration of title of Nei Kaua's other descendants like herself. Mr Teiwaki accepted that the decision in Land Appeal 79/81 was correct at the time, and submitted that while the respondents could prove indefeasibility then, they could not do so when the appellant brought her claim. But this proposition was effectively disposed of in the passage quoted above, in which it is stated that the Court in case 46/78 had inspected the relevant registers and were satisfied with validity of the respondents' title granted to them in that case. The name of another person was ordered to be expunged. The only conclusion we can draw from this is that there was a valid registration of the respondents in 1978 which has enured throughout, and that they are entitled to rely on its indefeasibility in resisting the appellant's claim to be added as an owner.

Result

The appeal is dismissed.

Casey JA
Bisson JA
Tompkins JA