Timi v Kaitangare [2005] KICA 10; Land Appeal 08 of 2005 (8 August 2005)

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

Land Appeal 8 of 2005

BETWEEN:

TERETIA TIMI
Appellant

AND:

BETERO KAITANGARE
Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for Appellant: Glenn Boswell
Counsel for Respondent: Banuera Berina

Date of Hearing: 5 August 2005
Date of Judgment: 8 August 2005

JUDGMENT OF THE COURT

Introduction

1. This is an appeal from a land jurisdiction decision of the High Court of 1 July 2005 quashing the decision of a Single Magistrate. The Magistrate had found that certain land belonged to the appellant who in consequence was entitled to evict the respondent. The High Court reversed that decision, holding that the respondent was the owner.
   

Background

2. It is common ground that the appellant and her brothers initially owned the disputed land. In about 1970 the respondent and his two associates began using the land pursuant to an arrangement made with the appellant’s brother, Biribo. The respondent provided Biribo with a motorbike and, with his associates, was permitted to build a “club” building on the property. He has lived there ever since. He has also been running a business there, initially with his associates and then on his own.
   
3. Recently the appellant decided that it was time for the respondent to start paying rent. When this was put to the respondent he refused, contending that he owned the property. In his view the original transaction with the appellant’s brother, Biribo, was more than a mere licence to occupy; it was an outright sale in return for the motorbike. To resolve the dispute the appellant brought the current proceedings for his eviction.
   

Proceedings in the Magistrates’ Court

4. In the Magistrates’ Court the issue was considered to be whether the 1970 transaction was a sale or a mere licence to occupy. On that issue the Single Magistrate was faced with conflicting evidence. The only witnesses were the appellant, the respondent, and Nei Teaeae, the daughter of one of the respondent’s associates.
   
5. The appellant’s evidence was that the motorbike was merely a gift received after the respondent had established a business on the property. After inquiries she considered the 1969 value of the motorbike to be $200. She denied that her brother had ever sold the property.
   
6. The respondent’s evidence as to whether he established the business before or after the handing over of the motorbike was equivocal. He said that the arrangement with the appellant’s brother involved his “settling” on the property which we take to be a reference to a sale. In contrast with the appellant, he said that at the relevant time the motorbike was worth $900 and the land only $500 to $600. He produced to the Court a document which he claimed was a record of the sale. He was himself a Single Magistrate of the Magistrates’ Court. He agreed that he had taken no steps to register his title but said in effect that he had not thought this to be necessary given his possession of the written agreement.
   
7. The evidence of Nei Teaeae did not ultimately advance the matter either way. Although she started out saying that she had witnessed an oral agreement to sell between the appellant and respondent she ended her evidence in uncertainty over the whole matter.
   
8. The situation faced by the Single Magistrate was therefore this. The appellant and her siblings were registered as the owners. It was effectively for the respondent to rebut the state of the title by showing that, notwithstanding the title, he was the beneficial owner pursuant to a valid and binding agreement to sell. He could do this only by convincing the Magistrate that his account of the transaction was to be believed and that the document he produced represented an agreement to sell.
   
9. It was with that background that the Magistrate said this:
   

The court finds that the land the Respondent is settling over is presently registered under the Plaintiff namely Teretia Tiimi and Siblings. The Respondent has not been registered over it. It is shown that the Respondent has been over the land for 30 plus years, why then has he neglected to register his name following the agreement.

From here and the court finds that the Respondent has no power to settle on the Plaintiff’s land.

Perusal of the agreement shows that it was between Biribo and Brothers and members of the club. It is shown that they approved the erection of the club. Betero’s name is not shown and nor is Betero and the club mentioned.

10. The Magistrate ordered the respondent to vacate the land within three months. From that decision the respondent appealed to the High Court.
    

Proceedings in the High Court

11. In its decision on appeal the High Court noted the unavailability of the agreement produced as an exhibit in the Magistrates’ Court. It had since been lost. Nevertheless the Court reversed the Magistrate’s decision on the critical question of fact. For this it relied upon essentially four grounds.
    
12. First, the High Court said “We are told the motorbike was worth about $900 and the land at that time about $500 to $600 ... If the intention were not to sell the land why was the consideration so big?”
    
13. Secondly the Court said “why has the appellant been permitted to live and carry on business on the land, apparently undisturbed, for 35 years?”
    
14. Thirdly the Court noted that if the arrangement had been no more than a licence to occupy “it was apparently an arrangement without end.”
    
15. Fourthly it considered that the Magistrate had based her decision upon the appellant’s neglect to be registered as owner. As to that point the High Court said that the appellant’s neglect was “careless but we do not think more than that: it is not decisive”.
    
16. The High Court concluded that the 1970 transaction amounted to a sale, that the respondent had been the equitable owner of the land ever since, and that in consequence the respondent was entitled to be registered as owner of the land.
    

The appeal

17. The first ground of appeal was that the High Court erred in law in reversing the Magistrate on a matter of credibility.
    
18. We accept Mr Berina’s submission that the Magistrate made a finding of credibility against the respondent. Once it is viewed against the evidentiary conflict we have described, the Magistrate’s rhetorical question “why then has he neglected to register his name following the agreement” could have had only one purpose. The purpose must have been to indicate the Magistrate’s rejection of the respondent’s account of the 1970 transaction. The rejection was evidently based on the conclusion that his account could not be reconciled with his subsequent conduct.
    
19. We also accept Mr Berina’s point that whereas the Magistrate saw the 1970 document, the High Court did not. The Magistrate’s description of the document, and in particular the sentence “It is shown that they approved the erection of the club”, strongly suggests a licence to occupy, not a sale. If it had been a sale, the respondent would not have required the vendor’s approval to the erection of a club.
    
20. Second appeals to this Court are limited to questions of law:
    

s 10(1)(b) of the Court of Appeal Act. There is no question of law in this case. The High Court has approached its task as an appellate court on a legally erroneous basis. An appellate court must attribute particular weight to the advantage of the court at first instance on matters of credibility. That was overlooked. The principle was particularly important in this case given the further advantage this Magistrate had in seeing the critical document upon which the respondent relied, an advantage denied to the High Court.

21. In our view the error of law here was the misapplication of the principles upon which an appellate court should review findings of fact made at first instance. We need only add that the attention of the High Court does not appear to have been drawn to the conflict in the evidence as to the value of the motorbike. Nor is it clear why the High Court attributed more significance to inaction on the part of the appellant than inaction on the part of the respondent, a particularly surprising approach given the respondent’s role as a Magistrate.
    
22. The second ground of appeal was that the High Court overlooked the effect of s 14 of the Native lands Ordinance. Section 14 stipulates that an owner may sell land only if his next of kin agree and if the court finds a sufficiency of remaining land for the owner and his children.
    
23. The appellant was Biribo’s next of kin. Not even the respondent suggested that she had consented to the sale. Nor has any court ever considered sufficiency of land for the purposes of s 14. This too was an error of law on the High Court’s part.
    

Conclusion

24. The appeal is allowed with costs to the appellant as agreed or taxed. The order that the respondent be registered as owner is quashed. The order that the respondent vacate the land within three months is reinstated with the variation that the three months will run from today.
    

Hardie Boys JA
Tompkins JA
Fisher JA