Atauea v Tutokorau [2003] KICA 8; Land Appeal 03 of 2002 (16 August 2003)

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

Land Appeal No. 3 of 2002

BETWEEN:

KAMWEA ATAUEA
FOR TAWAIA TEBATA ISSUES
Appellants

AND:

KIRITAAKE TUTOKORAU MT MM
Respondents

Coram: Hardie Boys JA, Tompkins JA, Penlington JA

Counsel: Kataroke Tebweao for Appellants
Banuero Berina for Respondents

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

JUDGMENT OF THE COURT

This is a land appeal.

In 1963 the Lands Court was seized of an application under No. CN 6/63 by two persons Tawaia and N. Taanti in respect of some lands including Tokaibure 648i in Bikenibeu. The lands were then registered in the name of Nei Kanongnga. The application followed the death of Nei Kanongnga who had died childless. The applicants were the issue of N. Tumea who was a sibling of the deceased. The father of N. Tumea and the deceased was Kanokunamo.

Tawaia and N. Taanti were agreed as to the division of the deceased's lands including Tokaibure 648i. In the event that particular piece of land went to N. Taanti. The Lands Court made an order in terms of the agreed division.

That order was not subsequently challenged on appeal.

The respondents are the children of N. Taanti who is now deceased.

The appellants, as applicants in CNB 216/01, applied to be registered along with the respondents in respect of Tokaibure 648i. In effect the appellants' application was a challenge to the decision of the Lands Court made in 1963. The respondents opposed the application. There was a contested hearing. A single magistrate heard evidence adduced by both the appellants and the respondents.

The case for the appellants was that it was impossible, according to family trees put forward by the appellants, for the respondents to own the land in issue (upon which the appellants wanted to erect a building). The case for the respondents on the other hand was that the ownership of Tokaibure 648i had been determined in the 1963 proceeding and should not be disturbed.

In a reserved decision delivered on 11 October 2001 the magistrate, after noting that the appellants were not parties to the 1963 proceeding ordered that they should be registered in respect of Tokaibure 648i along with the respondents.

The respondents were aggrieved by this decision and appealed to the High Court. In a short judgment the High Court held that the magistrate did not have power to override the earlier decision, which the High Court considered decisive. The High Court noted that the earlier decision had stood for nearly 40 years. The respondents' appeal was accordingly allowed and the decision of the magistrate was quashed.

The appellants now appeal to this court. They complain that the High Court erred in law by failing to take into account that the family trees of the respondents, as put forward by the appellants, do not support their registration in respect of the land in question.

The appeal can be dealt with quite shortly. The effect of the decision of the magistrate in CNB 216/01 was to vary the decision of the magistrate sitting in the same court nearly 40 years ago in CN 6/63. It is our clear view that the magistrate in CNB 216/01 did not have the power to make such a decision. He was sitting in the same court as the magistrates were presiding in 1963. He was not entitled to vary or amend the decision made in the 1953 application. It has stood for nearly 40 years and it has not at any time been challenged on appeal to the High Court. The correctness or otherwise of the family trees tendered in evidence in CNB 216/01 by the appellants was irrelevant.

That was the view of the High Court. We have little trouble in reaching the same conclusion. Responsibly Mr Tebweao for the appellants conceded in response to question from the Court during the oral argument that the magistrate in CNB 215101 did not have the power to act in the way he did.

As the result the order quashing the decision of the magistrate in CNB 296/01 is confirmed and the present appeal is dismissed.

Hardie Boys JA
Tompkins JA
Penlington JA