Teteki v Tata [2005] KICA 9; Land Appeal 03 of 2005 (8 August 2005)

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

Land Appeal 3 of 2005

BETWEEN:

BOBAI TETEKI
Appellant

AND:

BWAANI TATA
Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for Appellant: Glenn Boswell
Counsel for The Respondent: Aomoro Amten

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

JUDGMENT OF THE COURT

[1] This is an appeal from a judgment of the High Court, delivered on 3 December 2004, which dismissed an appeal from the decision of a Single Magistrate in CN 136/03, delivered on 7 November 2003.

[2] In that case, the present appellant, representing the issue of Nei Kabao and of Nei Tekaai, all claiming as descendants of Nei Taouea, made claim to land known as Tabontawana 597r. They failed on the basis of res judicata, the Magistrate holding that the issue before him had been heard and determined in case 246/00.

[3] The land had been given in 1948 to Nei Taouea and Nei Terubeiti. When Nei Taouea died, her descendants failed to register their interests. Nei Terubeiti died leaving a will pursuant to which the land was registered in Tata Moanatewa: case 22/74. Later, in case 436/90, the land was transferred to Nei Itinikai Tata. All this was done on the basis that there were no other persons with an interest in or a claim to the land.

[4] Ten years later, in case 246/2000, Ata Burerua, a grandchild of Nei Taouea, sought to recover the land (or perhaps more accurately an interest in it) from Nei Itinikai. The Single Magistrate quite correctly held that he had no power to override the decisions in cases 22/74 and 436/90. He also addressed the question of fraud, in relation to case 22/74. He held, again correctly, that there was no evidence of fraud.

[5] In 2003 the present appellant and another, on behalf of the issue of Nei Kabao and Nei Tekaai, commenced case 136/03 with the objective of establishing the same interest as was sought in 246/2000, namely that of Nei Taouea. The appellants were the issue of Nei Tanene, who was the issue of Taburateroro by his second spouse. The Single Magistrate noted that in the earlier case, 246/2000, the plaintiff Ata Burerua had represented the issue of three people, of whom one was Taburateroro, while the defendants were the same in both cases. Thus not only were the parties to both cases the same, so was the subject matter.

[6] The Single Magistrate dismissed the claim on two grounds, first that one Single Magistrate cannot set aside the decision of another, and secondly that the principle of res judicata applied. As the Magistrate stated:

A claim can only be heard once. If the case has already been dealt with before it can be decided only once and cannot/should not be raised again.

[7] The appeal to the High Court followed, and judgment was delivered on 3 December 2004. The Court dismissed the appeal, affirming the Single Magistrate’s decision that she could not upset the decision in CN 246/00. On that basis, it did not need to consider the different topic of res judicata. The judgment expressed some sympathy with the appellant’s case, for the interest of the issue of Nei Taouea has disappeared without explanation. Yet the Court could not give a remedy in these proceedings.

[8] The appeal to this Court was brought out of time, but Mr Amten consenting, the necessary leave was given.

[9] Mr Boswell’s submissions in this Court were directed at the applicability of res judicata. He acknowledged that the parties in this case are the same as in CN 246/00, and that “the land involved is also prima facie the same”. The reservation expressed by the words “prima facie” seems unwarranted. It has not been suggested that the case involves land other than Tabontawana 597r.

[10] Mr Boswell’s argument was that the issue in the two cases was not the same. Case 246/00 was, he said, a challenge on the grounds of fraud to the transfer of title relating to Nei Terubeiti’s land, while the present case is concerned with the registration of the interest the appellants had received from their ancestor Nei Taouea. But that is not a valid distinction, for the appellant’s purpose in bringing case 246/00 was to establish an interest in the land by virtue of descent from Nei Taouea. And that of course is their purpose in these present proceedings.

[11] However, res judicata clearly applies to the issue of fraud. For that had been determined in case 246/00 against the present appellant. But there has been no adjudication on the entitlement to an interest in the land of the issue of Nei Taouea. They were not parties to the original order, 22/1974, which vested the land wholly in Tata Moanatewa. The decision in 246/2000 did not adjudicate upon their claim, but dismissed it on the basis that to uphold it would be to override the decision in case CN 22/74. This was also the reason for the decision in case 146/03, although the Single Magistrate described it as a case of res judicata. It was, too, the reason for the appellant failing in the High Court.

[12] It is well settled that one Single Magistrate cannot review or upset the decision of another. That principle being the basis of the decisions in both the Lands Court and the High Court, the appellant cannot succeed in this Court.

[13] The result is obviously unsatisfactory. The descendants of Nei Taouea have been deprived of the interest in the land that their ancestor held. The problem arose because the immediate issue of Nei Taouea failed to register their interest after her death. The problem cannot be solved in these or similar proceedings.

[14] The appeal is dismissed. The respondent is entitled to costs, to be agreed or fixed by the Registrar.

Hardie Boys JA
Tompkins JA
Fisher JA