Makin Island Council v Kareke [2003] KICA 6; Land Appeal 05 of 2003 (16 August 2003)

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

Land Appeal No 5 of 2003

BETWEEN:

MAKIN ISLAND COUNCIL
Appellant

AND:

BWEBWETAAKE KAREKE
BURETI KORIRI MT MM
Respondents

Coram: Hardie Boys JA Tompkins JA Penlington JA

Counsel: Birimaka Tekonene for Appellant
Banuera Berina for Respondents

Date of hearing: 13 August 2003
Date of judgment: 16 August 2003

JUDGMENT OF THE COURT

This appeal from a judgment of the High Court in its Land Jurisdiction turns on a very short point.

In 1 November 2002 a Single Magistrate sitting as the Makin Island Magistrates Court had before him the confirmation of a lease between the Makin Island Council and Nei Moneti Manitaake over land Tekinimakin 140. It appears that there is a dispute as to ownership of part of the land. The respondents claim a one quarter interest in it, but they were not present at the hearing, although they had informed the Court of their claimed interest.

The matter was not disposed of on that day but was adjourned pending the Court's determination on what the Chief Justice called another, related matter, but which we understand from counsel was the ownership dispute. The Magistrate ordered that all interested parties should be notified of the further hearing. The further hearing took place on 9 March 2003 before five magistrates. It was brought on at the instance of the parties to the proposed lease, but the respondents were not notified of it. Only the lease parties were present. The Court, if it was not in fact aware of what had occurred the previous November was certainly not informed of it. It nonetheless made the order that had been sought.

On appeal to the High Court by the present respondents, and again in this Court, counsel for the Council relied on regulation 5(2) of the Native Lands Leases Regulations under the Native Lands Ordinance. This states:

Where land is held by joint owners the signature of one joint owner shall be binding on all joint owners and the payment of rent to and acceptance by one of the joint owners shall be sufficient discharge for the lessee.

The High Court held that although this provision stipulates that the signature of one joint owner is enough, the regulation does not imply that the Court need consider only the views of one joint owner. That is clearly correct. The High Court judgment concluded "The Court should have taken into account the views of all landowners, the more so when an order had been made previously that all should be notified of the further hearing". It therefore quashed the decision of the Magistrates Court and referred the matter back to it for a fresh hearing.

Mr Tekanene emphasised the practical difficulties of obtaining the views of all the landowners, when there may be a great many of them. Regulation 5(2) is intended to obviate that difficulty when it comes to execution of the lease. But there is force in Mr Berina's argument that ownership of the land must be conclusively established before a lease can properly be confirmed, and one owner authorised to sign on behalf of them all.

However that may be, the crux of the matter is that the Court in March 2003 proceeded in disregard of the directive of the Single Magistrate in November 2002.

The land proposed to be leased forms part of the runway of the Makin Island airstrip and has been used as such for 10 years. It is obviously desirable to formalize the matter promptly if only to ensure that the landowners receive the rent to which they are entitled. What was done in March 2003 was obviously an attempt to bring the matter to finality. But it was not a well-judged attempt, for Court directives cannot simply be disregarded for the sake of convenience or expediency.

We agree with the judgment of the High Court and the appeal is therefore dismissed.

Hardie Boys JA
Tompkins JA
Penlington JA