Bare v Kanoanie [2006] KICA 22; Land Appeal 09 of 2005 (26 July 2006)

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

Land Appeal 9 of 2005

BETWEEN:

BATERIKI BARE
Appellant

AND:

TERIKI KANOANIE
Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for Appellants: In Person
Counsel for Respondents: Banuera Berina

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

JUDGMENT OF THE COURT

[1] This is an appeal from a judgment of the High Court in its lands jurisdiction quashing an order of a Single Magistrate who had varied an earlier decision of another Single Magistrate.

[2] The Chief Justice commenced his judgment with this succinct statement of the facts as he saw them:

In 1991 N. Teriki who had paid $320 to the then owner Nakekea went to the Court with Nakekea and had the land Tearinibai 134-I transferred to her name from the name of Nakekea (NT 19/91). It appears that the present respondent Bateriki had also paid Nakekea money, $3,000 and thought the land was his. In 2003 Bateriki took the proceedings from which this appeal comes to overturn the 1991 decision and have the land registered in his name in place of N. Teriki, his mother-in-law. Instead of doing that the Single Magistrate divided the land between the appellant and respondent in proportion to the moneys each claimed to have paid to Nakekea. N. Teriki has appealed.

[3] The only circumstance in which one Single Magistrate may overturn or vary an earlier decision of another Single Magistrate about the same land is where there has been fraud. That word had not been used in the Lands Court, but at the hearing of the appeal to the High Court Mr Berina argued that his client’s case was nonetheless based on fraud, in that the present respondent knew that the appellant had purchased the land and yet, behind his back, had registered the land in her own name. The High Court however held that there was no evidence of fraud.

[4] The amended notice of appeal, states as its ground, necessarily formulated as a question of law:

The High Court erred in law in setting aside the findings of the Lands Court of Abaokoro in that the Lands Court was justified in finding that before she registered her name the Respondent was aware that there was a sale to the Appellant when she had her name registered and therefore the Lands Court was entitled to make an order to the effect that the Appellant was to be registered a co-owner of the land.

[5] In his submissions, Mr. Berina reduced this to the simple proposition that the appellant had successfully proved to the satisfaction of the Lands Court that the respondent had fraudulently registered her name over the land.

[6] The evidence before the Magistrate was far from clear. The respondent, who is the appellant’s mother-in-law, said that in the 1970s, while the appellant was living in Banaba, she had agreed with Nakekea to buy the land from him for $3,000, and had paid part of it by instalments. Later, after the appellant had returned from Banaba, Nakekea apologized to her and said that the appellant had made an agreement with him to buy the land and had paid him some money. Nonetheless, the record of NT19/91 shows that Nakekea informed the Magistrates that he was selling the land to the respondent for $3,000. And the respondent in her evidence said that after the Court had made the order in her favour, she told her daughter Aritaake, the appellant’s wife, and Aritaake was very angry. "I appeased my daughter because I was not aware of their payment to Nakekea."

[7] It seems that Nakekea received the full price, but each party claimed to have paid it. The respondent also spoke of making a payment of $320, while the appellant had also paid another $1,000, and although that was apparently for the purchase of another piece of land from Nakekea, these were the amounts that prompted the Magistrate, who was unable to decide whose money the $3,000 was, to make the two-thirds, one third division of the land in issue in this case.

[8] In the course of his judgment, the Magistrate observed: "It would seem in view of this old lady that she is aware of Bateriki and Aritaake’s sale to [counsel agree that this is a mistake – it should be "purchase from"] Nakekea in her answers to the questions." This is what was said:

Q: who purchased it first?

A: I did

Q: have you any knowledge of Bateriki’s purchase?

A: he had just informed Nakekea

[9] This exchange, and the Magistrate’s observation, are the foundation for the appeal. As already mentioned, the word fraud was not used in the lower court, but Mr. Berina’s response to that was that although the appellant, a layman conducting his own case, did not use the term, that was the gist of his case; as indeed it had to be if he were to succeed in defeating the title the respondent had acquired under NT19/91. Further, the Magistrate could not in law have made the order he did unless he had found the respondent had acted fraudulently.

[10] But the High Court disagreed. The Chief Justice, after observing that fraud must be strictly proved, said that it had not been proved at all: "there is no evidence that N. Teriki acted fraudulently."

[11] This appeal, which is necessarily limited to questions of law, turns on the proper role of an appellate court where there is a challenge to findings of fact at first instance. Where those findings are dependent on the credibility of witnesses, the appellate court must be slow to differ. But this case did not raise any questions of credibility, but rather depended on an assessment of uncontradicted but confusing evidence. The Magistrate relied on an acknowledgment by the respondent, but that must be assessed in the light of all the evidence. Fraud means dishonesty, an intention to cheat. If this respondent was the first to whom Nakekea had agreed to sell, and had paid some of the purchase price, then she may well have considered she was entitled to ownership, notwithstanding any knowledge she had of what the appellant had arranged and done. The Magistrate did not look at the case in that way, and so made no assessment of the respondent’s intentions or motives. The High Court’s conclusion that there was no evidence of fraud must be looked at in that light, and in that light cannot be said to have been beyond its competence as an appellate court.

[12] The appeal is therefore dismissed. The appellant must pay the respondent’s costs in a sum to be agreed or failing agreement to be taxed.

Hardie Boys JA
Tompkins JA
Fisher JA