Teraoi v Tekarara [2006] KICA 19; Land Appeal 06 of 2006 (26 July 2006)

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

Land Appeal 6 of 2006

BETWEEN:

TAMEA TERAOI
KABUAUA TENANGIBO
IOAKIM TOOMA
Appellants

AND:

TEATAUEA TEKARARA
ARAWATAAKE KABWEBWENIBEIA
ARITI AROBATI
Respondents

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for Appellants: Karotu Tiba
Counsel for Respondents: Banuera Berina

Date of Hearing: 22 July 2006
Date of Judgment: 26 July 2006

JUDGMENT OF THE COURT

1. In CN 96/05, the present appellants brought proceedings in the Magistrates’ Court to have the decision in CN 25/58 and the consequent registration of land into the names of the ancestors of the respondents, set aside because of fraud on the part of one of those persons.

2. The Single Magistrate in CN 96/05 upheld the allegation of fraud, but held also that the earlier decision could not be set aside because s. 4 (2) of the Native Lands Ordinance conferred indefeasibility of title notwithstanding the fraud. From that decision the appellants appealed and the respondents cross-appealed.

3. In giving the judgment of the High Court, the Chief Justice, noting that fraud must be strictly proved, pointed out the very great difficulty of proving fraud after nearly 50 years. He noted that CN 25/58 had been considered in CN 74/64, and no question of fraud had been raised. He concluded, after having read the minutes and the judgment in CN 25/58, that fraud had not been strictly proved. Had it been proved, he said, the decision tainted by it could be reviewed and reversed. So in both respects, the Single Magistrate had been in error.

4. The outcome of the appeal to the High Court was therefore that the Single Magistrate was held to have been right, but for the wrong reasons, and accordingly the appeal was dismissed and the cross-appeal was allowed, with the result that the appellants failed in their attempt to upset the respondents’ title. The appellants have appealed to this Court. There is no question but that the Single Magistrate was wrong on the effect of s.4 (2) of the Native Lands Ordinance, for fraud is the one ground on which the decision of one Magistrate may be overturned by another. The issue in this Court was whether the High Court was right to hold that fraud had not been strictly proved.

5. Where facts are in issue and their assessment depends on the credibility of witnesses, an appellate court should not lightly interfere with findings of fact made by the lower court which has had the advantage of seeing and hearing the witnesses. But where the relevant facts are to be ascertained or deduced from other material, such as documents, the appellate court is in as good a position as the trial court in determining the weight to be given to the material before it.

6. The Chief Justice’s judgment does not indicate the reasons for the conclusion that fraud had not been strictly proved. It has therefore been necessary for this Court to examine, as best it could, the evidence that was before the Single Magistrate.

7. In CN 25/58 the Lands Court ordered a distribution of the lands of the late Nei Taruru Matang on the basis of a family tree presented by Tekarara Neneia, the father of the first respondent. This family tree showed descent not from Taruru Matang but from Taruru Kauntuntarawa, who had two children. One was Nei Taruru who died without issue, and the other was Tetima the parent of Tekarara and others.

8. The appellants claim to be descendants of Taruru Matang, and assert that Tekerara’s claim to descent from Taruru Matang was fraudulent, because he was not descended from Taruru Matang, but from Taruru Kauntuntarawa, as his family tree shows.

9. Ms Iuta submitted that it would be very strange indeed that such a fraud could have been perpetrated before a Lands Court consisting in 1958 of members of the local community, and sought to demonstrate that the explanation lies in the fact that Taruru Kauntuntarawa was also known as Taruru Matang. Moreover, other records before the Court appear to show that the Nei Taruru through whom the appellants have claimed had four children, whereas the Nei Taruru in the respondents’ family tree died childless.

10. All this demonstrates how right the Chief Justice was when he mentioned the difficulty of going back 50 years. There is no question of a time limit, as Mr. Tiba seems to have thought, but simply of the practicalities of the case. It also demonstrates that this is one of those cases where the appellate court was in as good a position as the trial court to assess the evidence, for none of the parties could testify from their own knowledge. Everything turned on documentary evidence.

11. The Magistrate found fraud established by the fact that there was no relationship between Taruru Matang and Taruru Kautuntarawa. But he did not address the really crucial question of how the Land Court in 1958 could have been deceived into thinking that a family tree showing descent from one person could entitle persons descended from another. He had of course considered the same material that Ms Iuta relied on to assert that there was a Taruru Matang who was also known as Taruru Kautuntarawa. No doubt the High Court also considered it, and seems to have been left in some doubt that it was as cogent evidence of fraud as the Magistrate had thought.

12. Be that as it may, the High Court was entitled to look at the evidence afresh, and reach the conclusion it did. That was a decision on the facts, and as an appeal to this Court lies only on a question of law, we cannot entertain an appeal from it.

13. The appeal is therefore dismissed. The respondents are entitled to costs, in a sum to be agreed, or failing agreement to be taxed.

Hardie Boys JA
Tompkins JA
Fisher JA