Iabeta v Toatu - Judgment [2002] KICA 9; Land Appeal 01 of 2002 (12 August 2002)

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

Land Appeal No. 1 of 2002

BETWEEN:

KORERE IABETA
Appellant

AND:

TAKINOA TOATU
TIRAE IABETA
KOROKIAE IABETA
Respondents

Coram: Casey JA
Hardie Boys JA
Tompkins JA

Counsel: Katarake Tebweao for appellant
Banuera Berina for respondents

Date of hearing: 9 August 2002
Date of judgment: 12 August 2002

JUDGMENT OF THE COURT

[1] This is an appeal against the dismissal by the High Court in a judgment delivered on the 22^nd March 2002, of an appeal from the decision of a Single Magistrate given on 14 October 1999 (C/N 268/99).

[2] The case concerns the distribution of lands owned by Iabeta Tibau, who died a number of years ago. He left four sons, Toatu, the eldest, Tirae and Korokiae, named as respondents in this appeal, and the appellant Korere. Toatu and Tirae have also died. Takinoa, the first-named respondent, is Toatu's son.

[3] The decision of the Single Magistrate in C/N 268/99 arose from an application by Korere for the division between the four brothers in equal shares of four lands at Bonriki and Betio. Takinoa objected to a division of all four and claimed that one of them, Anraei 569e apparently being the most valuable, should be given to his father for his extra share as the eldest son: Native Lands Code, section 11(ii) (Cap. 61).

[4] The Magistrate recorded that Tirae did not object to this, and neither did Teatata, who was there representing his father, Korokiae. As to the other three lands, the Court considered that each of Tirae, Korokiae and Korere should be given one undivided; as there was enough for them all. This was in accordance with section 11(viii) of the Code, and the Single Magistrate recorded that the parties other than Korere agreed with this course too.

[5] The decision was therefore that Anraei 569e should go to Toatu and one of the other three lands should go undivided to each of the other brothers, as they should agree.

[6] Korere appealed to the High Court against this decision, on three grounds. The first was that the Single Magistrate erred in not considering the fact that some lands are big, some are leased, and some are more fertile. The second was that the Single Magistrate erred in law in giving Anraei to Toatu as his extra share for being the eldest son, when in case BA 55/93 he had already been given another land, Teai 641i, as his extra share. The third ground was that the Single Magistrate erred in deciding how the lands should be distributed when in fact that had already been agreed when Toatu was alive.

[7] When the appeal came before the High Court, its members appear to have been under the impression that an appeal from the Single Magistrate could be brought only on a question of law, and as they saw the decision under appeal as one purely of fact, in a brief ex tempore judgment they dismissed the appeal.

[8] However, an appeal to the High Court is a general appeal: see section 75(1) of the Magistrates' Courts Ordinance 1977 Cap. 52, and Korere Iabeta v Tiina Moniara and Nonouri Takirua, Land Appeal 10/2000, judgment delivered on 3 April 2001. It is an appeal to this Court from the High Court that lies only on a question of law: section 10(1)(b) of the Court of Appeal Act 1980 (Cap. 16B).

[9] The notice of appeal to this Court did not raise this point, but Mr Tebweao representing Korere sought leave to amend the grounds of appeal so as to include it, as well as three other grounds which were in part a modification of the original grounds, and in part new. Mr Berina did not oppose the grant of leave and we grant it accordingly.

[10] Mr Berina endeavoured to persuade us that the High Court decision did no more than hold that the Single Magistrate's findings were all of fact and that there was no basis for differing from them.

[11] But that is far too broad a reading of the decision. We think that the High Court mistakenly held that it could not entertain an appeal on fact. That was an error of law which this Court has jurisdiction to rectify.

[12] What then is to be done. We could refer the case back to the High Court. But as we are satisfied that we can give it finality we propose to do so. In adopting that course we have considered the material in the Record and some very helpful background information given to us by Mr Tebweao and Mr Berina.

[13] We should also mention that Mr Tebweao asked us to receive four affidavits sworn after the High Court decision was delivered, which seek to add further factual material. It is too late to do that. All the relevant facts ought to have been placed before the Single Magistrate. In certain circumstances an appellate court will admit further evidence but the criteria for doing so are not met here. The affidavits cannot be accepted; although we will refer to one matter contained in them for the purpose of background.

[14] This rather unhappy dispute between members of Iabeta Tibau's family has its origin in the application to the Lands Court, BA 55/93, which was brought by the four sons, all then still alive, for the distribution of five of their father's lands. In accordance with their wishes, the Court registered one, Teai 641i in the name of Toatu for his extra share as the eldest, and it registered the remaining four (which of course included Anraei) in equal shares between all four brothers.

[15] Then in January 1997, following the death of Toatu, Korere, representing his brothers, went to the Court (Case 52/97) and sought cancellation of Toatu's titles "because he has died and he is registered alongside us on the properties". The Court duly ordered:

"The name Toatu Iabeta is to be cancelled and be replaced by that of Tirae Iabeta and siblings on all the lands".

[16] There has been some confusion over whether this order affected Teai 641i. The material before this Court does not contain a description of the lands in respect of which Korere made his application, but it seems clear that by the words "registered alongside us" Korere was not asking for Toatu's title to Teai 641 to be cancelled, but only to those in which they all had an interest. Moreover, to have asked this in respect of Teai 641i would have been to renege on the agreement the four brothers had made following their father's death; and it may well have been beyond the jurisdiction of the Single Magistrate.

[17] When Korere's application 268/99 came before the Single Magistrate Takinoa asked for Anraei to be the extra share for his father, as the eldest. Korere cross-examined him, asking if he knew about Teai; and Takinoa's answer was that he did not. Korere did not pursue the matter further. And so the Single Magistrate did not know about it either.

[18] In one of the affidavits Korere asked the Court to admit for this appeal, Korere deposed that before the hearing in October 1999 he had been to some pains to find the order in 55/93, but had not been successful. Unfortunately he does not seem to have told the Single Magistrate even this. But at the hearing of the High Court appeal, there was reference to it, although no application was made to admit evidence about it. Counsel for Korere submitted that as Toatu had already received his agreed share as the eldest son the Single Magistrate should not have awarded him Anraei in addition. The Chief Justice interposed to ask why not, as the Code does not say how big the oldest's should be.

[19] But then in his submissions to the High Court Mr Berina contended that decision 52/97 had deleted Toatu's name from the title to Teai and that fact justified the decision of the Single Magistrate to award him Anraei as his extra share. In this Court, however, Mr Berina took a different approach, saying that if in fact Teai is still registered in Toatu's name – and there is some uncertainty about that – Takinoa was not aware of it, and was willing to share it with his father's other brothers.

[20] If it be the case that Teai remains registered in the name of Toatu alone, and that was a mistake, then there may well be means of rectifying it, should that be necessary.

[21] That however would not satisfy Korere, who, we are told, sees the case as a test of family honour and proper respect for elders. He is strongly of the view that the right and proper thing is to return to what was originally agreed in 1993, as modified in 1995, leaving Teai with Toatu, and bringing Anraei into the distribution sought in 1999.

[22] If that were done, there would be four lands to be divided between the four brothers, and in accordance with section 11(viii) of the Native Lands Code, Toatu would receive one of them. Whether or not that one was Anraei, the result would still be that Toatu receives two lands and the others one each: on the face of it, and without any knowledge of value and desirability, the situation that now pertains.

[23] The High Court decision did not specifically deal with the matters we have been discussing although they were largely canvassed in submissions and comments by the Court as the case proceeded. In the judgment, they were all gathered together in the conclusion that they were matters of fact; and as such were beyond the Court's jurisdiction. The judgment made one other point, in answer to a complaint that the Single Magistrate did not take account of the fact that some of the lands were leased. The judgment pointed out that the Single Magistrate could only act on the evidence before him.

[24] We now turn to the four grounds of appeal as amended. The first, the question of jurisdiction, we have already dealt with. The second is that the High Court misconstrued the decision in case 52/97 by holding that it cancelled or annulled the decision in case 55/93. The High Court made no finding about that. We have already expressed our understanding of the decision in 55/93, namely that it dealt with the lands other than Teai. We suspect that it could not have done otherwise given the form of the application and the principle of indefeasibility: see Bwerebwere Korina v Bwetenekai Mwemwe, Land Appeal 1/200, 5 April 2001, and Tebuto Kauongo and Others v Ruonamakin Ria and Others, Land Appeal 6/2000, 3 April 2001.

[25] The third ground is that in interpreting section 11(c)(ii) of the Code the High Court did not take into account the surrounding facts. This we take to be a reference to the leases over some of the lands, mentioned above. Again, there is no specific mention of this point in the judgment, but the issue is plainly one of fact, and there is nothing to show that the Single Magistrate did not have regard to all the facts as they were placed before him.

[26] The fourth ground is that the High Court did not take into account that Teai had not been taken out of Toatu's name as was claimed to have been the result of 52/97. This matter, too, was not specifically mentioned in the judgment, again no doubt because it was seen as a question of fact.

[27] Whether the Single Magistrate would have made a different order in relation to Anraei had he been adequately informed about Teai we do not know. But it appears that even if the Single Magistrate had been fully informed, and yet had come to the same conclusion, the High Court would have upheld him. For in the course of counsel's submissions, the Chief Justice pointed out that the size of the eldest son's share was not limited by the Code, and was purely a factual matter within the reasonable exercise of the Single Magistrate's discretion.

[28] In short, we have not been persuaded that the Single Magistrate was in error so as to justify the High Court interfering with his decision, or this Court referring the case back to the High Court.

[29] We have reached that conclusion independently of Mr Berina's intimation as to his client's attitude with respect to Teai. Nonetheless it is an important concession for that family to have made, and will, we hope, help to restore relationships which have soured over this dispute.

RESULT

[30] For the reasons we have given, we uphold the decision of the High Court, but on different grounds from that which it gave.

The appeal is therefore dismissed.

Casey JA
Hardie Boys JA
Tompkins JA