Ieita v Kamoi [2005] KICA 14; Land Appeal 06 of 2005 (8 August 2005)

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

Land Appeal No 6 of 2005

BETWEEN

RARATU IEITA
APPELLANT

AND

TOKANIKAI KAMOI
RESPONDENT

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Banuera Berina for appellant
Glenn Boswell for respondent

Date of Hearing: 4 August 2005
Date of Judgment: 8 August 2005

JUDGMENT OF THE COURT

[1] In 1956 the respondent then two years old was registered as owner of land known as Abaiti 454m. It may be 454a: it is not clear from the record. It had previously been owned by Boibuebu, an ancestor of the appellant. The respondent’s evidence was that she was given the land by her adoptive parents.

[2] In 2001 the appellant brought proceedings (CN 37/01) in the Lands Court to set aside the registration, alleging it was a fraud committed by the respondent’s late father, who at that time was Secretary for Lands. The relationship of the respondent or her adoptive parents to Boibuebu is not at all clear, and is of no importance in this appeal.

[3] Much of the hearing in the Lands Court was devoted to family trees. The evidence of fraud was limited to the inferences the appellant asked the Court to draw from the fact that the respondent’s father was Secretary for Lands and the respondent’s doubtful connection to the family of Boibuebu. The Court’s judgment was this:

The complaint was not granted because of these reasons:

- The Land was not Respondent’s land, but it was a Land of Adoption.

- The Complaint should be aimed to the Landowners who have connections with Boibuebu.

- It must stay as it is and must aim to the Landowners who have connections with Boibuebu to lodge their complaint.

- It is hard to dissolve this because it was from 1956, the time of Commission.

[4] Unless the last of these reasons was intended to refer to the allegation of fraud the judgment did not deal with that, but only with what was in essence a conclusion that the appellant had sued the wrong party.

[5] The appellant appealed. In the High Court counsel for the respondent acknowledged that the Magistrates were probably wrong to have concluded that the wrong party had been sued. But that concession could not assist the appellant unless fraud could be established. As to that, the Court said:

An allegation of fraud is a serious matter and must be proved to the satisfaction of the court. That is a heavier onus than on the balance of probabilities. It was up to the appellant to bring evidence of fraud. That was not done. On the evidence before the magistrates they could not have found that there had been fraud in the 1956 case. Their decision should stand.

[6] We agree. The Magistrates ought to have made a clear finding on the allegation of fraud. But their failure to do so can assist the appellant only if there were evidence strongly pointing to fraud. There was none. All there was was innuendo.

[7] In this Court, Mr Berina could put his case no higher than this, that the fact that the respondent’s father held the particular office he had at the time his daughter’s interest was registered, was enough to establish a prima facie case of fraud.

[8] We do not agree. As the High Court observed, an allegation of fraud must be supported by strong and clear evidence. Innuendo, even suspicion, is not enough. This requirement is even more important in a case such as this, when the transaction in question took place almost 50 years ago, and there is no one to rebut the allegation. The respondent’s father is deceased and she herself was at the time a very small child.

[9] The appeal is therefore dismissed. The appellant must pay the respondent’s costs including all proper disbursements, the amount to be agreed or fixed by the Registrar.

Hardie Boys JA
Tompkins JA
Fisher JA