Nakau v Kabwebwenibeia [2004] KICA 15; Land Appeal 01 of 2004 (23 August 2004)

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

Land Appeal No. 1 of 2004

BETWEEN:

KABOTAU NAKAU
TETABO MARANIA
Appellants

AND:

ARAWATAAKE KABWEBWENIBEIA
EMI BOB
Respondents

Coram: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Jennifer Troup for the Appellants
Aomoro Amten for the Respondents

Date of Hearing: 20 August 2004
Date of Judgment: 23 August 2004

JUDGMENT OF THE COURT

[1] In 1947 the Land Commission registered four lands in the name of N. Rannatu the great great grandmother of the respondents. By virtue of section 4(1) of the Native Lands Ordinance her title was indefeasible, as is the title of the present respondents who have been registered through succession from their father, N. Rannatu's son.

[2] N. Rannatu's predecessor in title was Temate, the ancestor of the appellants and in 2002 the appellants brought proceedings in the Magistrates' Court to have the respondents' title set aside on the grounds that she had obtained registration by fraud, in that she had justified her claim by producing a false family tree.

[3] When these proceedings came before the Single Magistrate in January and July 2002 he heard evidence from both sides, but it appears that he did not decide the matter on the facts, but rather on the grounds of the indefeasibility of the respondents' title.

[4] The appellants appealed but were slightly more than four months out of time and so had to apply for an extension. The matter came before the High Court on 24 April 2003. In its judgment delivered that same day, the High Court saw the case as an appeal against the Land Commission's decision in 1947, and refused leave to appeal so far out of time. Understandably, it considered a 55 year delay far too long. The appeal was therefore dismissed.

[5] The appeal to this Court was filed five weeks out of time, but
Mr Amten agreed to the necessary extension. Accordingly, leave to appeal out of time is granted.

[6] The grounds of appeal are in essence that the High Court failed to appreciate that the appeal before it, and the application for extension of time, were from the decision of the Single Magistrate of 25 July 2002, and not from the Land Commission decision in 1947. That it did so was doubtless in part at least because in opening his case counsel then acting for the appellants told the Court in opening his case "I understand the entire purpose of this appeal is to appeal against the Land Commission". In a sense that was true, but it was very misleading.

[7] The issues canvassed in this Court went far beyond that simple point, because as a second ground of appeal Ms Troup submitted that the High Court had not appreciated that the essential issue in the case is whether the respondents' title is the result of fraud. If that can be established, then of course the Land Commission decision can be set aside: see for example Aaron Teitikai and Others v Alice Bwebwentaratai, High Court Land Appeal 39 of 2001, judgment delivered 5 December 2003.

[8] Looking at the judgment of the Single Magistrate, it is clear that he understood fraud to be the issue, but it is not entirely clear whether he held that it had not been established. We do not think it appropriate for this Court to go into the merits. That is properly for the High Court to determine or, if it so decides, for the Single Magistrate to reconsider.

[9] This appeal is limited to the refusal to extend time. Clearly that was based on a misunderstanding. The application for extension should be considered on its correct basis.

[10] Ms Troup suggested that we should take the metaphorical bull by the horns and send the case straight back to the Magistrate. We are not prepared to do that. It properly is for the High Court to consider the merits if it decides to extend time.

[11] The appeal is therefore allowed. The matter is remitted to the High Court to reconsider the application to extend time and, if it grants it, to consider the substantive appeal.

Hardie Boys JA
Tompkins JA
Fisher JA