Iererua v Kee [2004] KICA 13; Land Appeal 06 of 2003 (23 August 2004)

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

Land Appeal 6 of 2003

Between

IATAAKE IERERUA MT MM
Appellants

And

MOTI KUM KEE
1st Respondent

And

TEBUKABANE IANIBATA
2nd Respondent

Coram: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Katarake Tebweao for Appellant
Banuera Berina for 1st Respondent
Taoing Taoaba for 2nd Respondent

Date of Hearing: 19 August 2004
Date of Judgment: 23 August 2004

JUDGMENT OF THE COURT

[1] The appellants appeal from a decision of the High Court of 18 July 2003 sitting in its land jurisdiction. By that decision the High Court reversed a decision of the Magistrates' Court of 23 February 1999 in the appellants' favour.

The background

[2] The second respondent was originally the owner of land described as Teere 687 e/21. In 1981 she decided to transfer it to the first respondent. The transfer was effected in two transactions. In the first she sold him a portion of the land in or about 1981. That sale was confirmed by the Magistrates' Court in case number 168/81. She sold him the balance of the land in or about 1982. That sale was confirmed by the Magistrates' Court in case number 96/82.

[3] In 1996 the second respondent brought fresh proceedings in the Magistrates' Court (number 96/96). In those proceedings she sought to have the land returned to her on the ground that the first respondent had not paid the full amount. The Magistrates' Court did not accept her claim. Her appeal from that decision to the High Court was dismissed (HCLA 69/96).

[4] The appellants are the second respondent's children. They were unhappy about the disposition to the first respondent. In 1999 they brought their own proceedings in the Magistrates' Court (number 101/99) challenging the Court's 1981 and 1982 sale confirmations. Their criticism of the confirmations was that the Court had failed to obtain their agreement as the second respondent's children.

[5] The appellants' challenge to the 1981 and 1982 sale confirmations came before a Single Magistrate. He accepted the argument that there had been a failure to secure the children's agreement. Accordingly he set aside the original sale confirmations.

[6] From that decision the first respondent appealed to the High Court sitting in its land jurisdiction. The High Court set aside the Single Magistrate's decision on two grounds. The first was that one Magistrates' Court has no jurisdiction to hear an appeal from, or to review, the decision of another Magistrates' Court. The other was that even if there had been such a jurisdiction, it was too late to exercise it. The High Court pointed out that in the interests of certainty of title, people should know that after the time for any appeal has expired, their title can not be questioned.

This appeal

[7] In this Court the appellant advanced three grounds for the appeal. The first was that the High Court erred in that in a case of this nature the Magistrates' Court must consult the issue of the landowner before confirming the sale. Mr Tebweao pointed out that pursuant to s 14 of the Native Lands Code an owner may sell land only if the owner's next-of-kin agree. He submitted that in this case the next of kin were the appellants, that they had not agreed to the sale, and that the sale should therefore be set aside.

Section 14 of the Native Lands Code provides:

14. An owner may sell a land, a pit or a fishpond if his next-of-kin agree and if the court, having considered the matter, approve. Before reaching its decision the court should first consider if the lands remaining to the owner after the sale are sufficient for him and his children.
    

An owner is free to sell one land and one third of the remainder of his lands received from his father's family and a similar proportion of those lands received from his mother's family. The landowner's next-of-kin retain their rights of inheritance on their remaining lands from their families. This proportion may be exceeded only if half of the next-of-kin of the relevant side of the family agree.

[8] We agree that in terms of s 14 of the Code, the Magistrates' Court could not approve the 1981 and 1982 sales without ensuring (a) that the second respondent's next-of-kin agreed to them and (b) that proper consideration had been given to the question whether the lands remaining after the sale would be sufficient for the second respondent and her children.

[9] As to (a), the appellants' case assumed that the "next-of-kin" whose agreement had to be secured were the second respondent's children. We are less confident that that is necessarily the case. The expression "next-of-kin" is inherently imprecise and is not defined in the Code. It seems unlikely that when it was used in the Code it meant nothing more nor less than the owner's children. Among other things, owners' children will often be infants. In the present case, for example, there were four children of whom the eldest was 18 years of age in 1981. The notion that the agreement of infants had to be obtained seems improbable.

[10] "Next-of-kin" is defined in the Concise Oxford Dictionary as "the closest living relative or relatives". The latter portion of s 14 of the Code suggests that in this context the expression could have been directed to those relatives of the owner likely to inherit the land in due course. But identifying those expected to inherit involves further uncertainty and complexity – see ss 10 and 11.

[11] Given the great importance of native land ownership in Kiribati it might be thought that the procedures for protecting the rights of owners, their families, and their successors, should be strengthened and clarified in new legislation. Fortunately it is unnecessary for us to decide whether, as the appellants contend, these sales could have been approved only with their agreement at the time. The real question is not whether their agreement was overlooked 20 years ago but whether anything can be done about it now in the context of these proceedings.

[12] As the High Court pointed out in the judgment now under appeal, when the matter came before the Magistrate in 1999, the Magistrate had no jurisdiction to inquire into the matter. The jurisdiction of the Magistrates' Court to confirm or refuse the sales ended when that court gave its decisions in 1981 and 1982. One Magistrates' Court has no power to hear an appeal from another Magistrates' Court. Nor can one Magistrates' Court judicially review another Magistrates' Court's decision.

[13] Assuming in the appellants' favour that the 1981 and 1982 decisions were originally open to challenge on the grounds now advanced, the course open to the appellants was to commence proceedings in the High Court to judicially review those decisions. Initially this could have been done pursuant to s 81 of the Magistrates' Courts Ordinance. Arguably it could also have been done pursuant to the High Court's inherent power to control inferior courts through the prerogative writs.

[14] Unfortunately no such proceedings were ever brought. The 12 month time limit in s 81(4) of the Magistrates' Courts Ordinance now precludes any proceedings under s 81. Whether the alternative of proceedings for certiorari remain available is not something which was argued before us and we should express no final view upon it. It is sufficient to note that there is no jurisdiction to intervene in the proceedings as presently constituted. The foundation for the appeals which led to the hearing in this Court was not an application for review but the attempt by one Magistrates' Court to review the decision of another. The High Court was clearly right to overturn that decision. This ground of appeal fails.

[15] The second ground of appeal was essentially a repetition of the first. Mr Tebweao submitted that the High Court was wrong to say that one Magistrates' Court has no power to review the decision of another Magistrates' Court because the second respondent's children were not parties to the 1981 and 1982 proceedings and were therefore unable to appeal from the decisions then given.

[16] The appellants may well have faced obstacles if they had tried to appeal from the 1981 and 1982 decisions but it does not follow that one Magistrates' Court has the power to overturn the decision of another. And a person whose interests are affected by a decision does not have to have been a party to the original proceedings in order to bring fresh proceedings to judicially review the decision. That was the path that had to be considered.

[17] The third ground of appeal was that the High Court failed to take into consideration the hardship which its decision would cause. Mr Tebweao advised the Court that his clients no longer had any land on which to live. We do not question the hardship that this must have caused. Unfortunately it can not be translated into a jurisdiction to intervene in the current proceedings.

[18] All three grounds of appeal having failed, the appeal is dismissed with costs to the respondents as taxed or agreed.

Hardie Boys JA
Tompkins JA
Fisher JA