Tibwere v Taaretiita [2006] KICA 16; Land Appeal 03 of 2006 (26 July 2006)

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

Land Appeal 3 of 2006

BETWEEN:

BUNAUA TIBWERE
Appellant

AND:

ARATAAKE TAARETIITA
Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for Appellant: Taoing Taoaba
Counsel for Respondent: Fleur Hamilton

Date of Hearing: 23 July 2006
Date of Judgment: 26 July 2006

JUDGMENT OF THE COURT

Introduction

[1] The appellant has appealed against the decisions of the High Court delivered on 19 and 20 January 2006.

[2] The appellant and the respondent each applied for leave to bring an application out of time to apply for an order of certiorari challenging decisions of the magistrates’ court in its land jurisdiction relating to land known as Tewintake 751n. In its decision of 19 January 2006 the Chief Justice held that the confusion as to who should be registered as owner over which piece of that land should be cleared up. That he said could only be done by the court considering two 2003 Single Magistrates’ decisions. Accordingly the application to apply for certiorari out of time was granted and leave was also granted to both parties to apply for certiorari orders.

[3] The High Court in its land jurisdiction determined the application the following day 20 January 2006. In its judgment the Court referred to the decision of the High Court in 197/84. It held there were two reasons why the Court had no alternative but to affirm that decision, first because there was no appeal from it and it had stood for over 20 years and secondly because the court should not go against its earlier decision. In accordance with High Court decision 197/84 the decision in CN 87/03 was quashed and the decision in 19/03 left to stand.

The High Court decision 197/84.

[4] The land had been divided into two sections referred to as the eastern half and the western half. The issue arose out of a decision of the Magistrates’ Court in its land jurisdiction in 1956. In that decision the Court had determined that Baraiti should be registered as the owner of the west section and that Tibwere be registered on the west section. As the High Court pointed out either that was a clerical error or it was intended that the west section only was to be divided between the two brothers.

[5] Baraiti Baraiti’s descendant appealed on the grounds that it was his understanding that Baraiti had been given the western half in 1956 and on that understanding he had erected a brick house. The High Court held that Baraiti was correct. It therefore made the following order:-

"We therefore set aside the decision of the court below. We award the western half of Tewintake 751n to Baraiti’s descendant Aritaake and the eastern half to the descendant of Bunaua".

[6] It emerged from the submissions of counsel for the appellant that in essence what she was trying to achieve was a challenge to the decision of the High Court in 197/84. It was her submission that Aritaake was not a descendant of Baraiti Baraiti and that therefore the western half should have passed to the descendants of Baraiti Baraiti’s brother Tibwere Bunaua. She further sought to submit that the decision had been obtained by fraud because it must have been known at the time of the High Court judgment that Aritaake was not a descendant of Baraiti.

Conclusion

[7] The Chief Justice’s decision of 20 January 2006 was correct. The issue the appellants now seek to raise was determined between the same parties or their representatives by the decision of the High Court in 197/84. In accordance with the doctrine of res judicata, the appellants are now estopped from challenging that decision.

Result

[8] The appeal is dismissed. The respondent is entitled to costs to be agreed or taxed.

Hardie Boys JA
Tompkins JA
Fisher JA