Eritai v Tebau [2006] KICA 23; Land Appeal 09 of 2006 (26 July 2006)

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

Land Appeal No 9 of 2006

BETWEEN

AKAMATANG ERITAI & OTHERS
as trustees for the Assembly of God
Appellant

AND

TANRO TEBAU
First Respondent

TEMAREWE TIOTAAKE
Second Appellant

BAKOA IEREMIA as Trustee for
the International Church of God
Third Appellant

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Aomoro Amten for appellant
Karota Tiba for first respondent
Banuera Berina for second respondent
Taoing Taoaba for third respondent

Date of Hearing: 24 & 25 July 2006
Date of Judgment: 26 July 2006

JUDGMENT OF THE COURT

Introduction

[1] The appellant applied for leave to seek a writ of certiorari out of time. We reserved this application and heard the appeal.

[2] The proceedings concerned land known as Tabaonga 655a (“the land”). The appellant claims to be the owner of a portion of the land. The first respondent claims to have been the owner of the land and to have sold half the land to the second respondent and to have given the other half of the land to the third respondent.

[3] The appellant sought an order of certiorari to have a determination of the magistrates’ court quashed and the issue of ownership referred back to the magistrates’ court for determination.

The judgment in the High Court

[4] Although this appeared to be a complex factual and legal case, the judgment in the High Court is notable for its brevity:

This is an application for certiorari. The facts are most complicated. The applicants ask that the case be sent for rehearing: this is strongly opposed by the respondents: for example Mr Berina for Temarewe has asked “send it back for what purpose?” The remedy is a discretionary one. Finally we have decided that rights having been acquired and not challenged until now it is better to leave the matter as it stands. The application is refused”.

[5] An appeal from the magistrates’ court in its land jurisdiction to the High Court is a general appeal. Thus the High court is enabled, and in normal circumstances should, examine the factual and legal issues and make appropriate findings on each. This applies particularly if the facts are complicated. If the judgment on appeal fails to set out the relevant facts, and make the necessary findings, that has two consequences. First, the parties do not have the benefit of the significant factual and legal findings that will enable them to judge whether an appeal should be brought, and if it be brought, whether it should be opposed. This case is a good example. If the findings had been set out in the detail that we have found it necessary to do, it may well be that no appeal would have resulted.

[6] Secondly, if the judgment in the High Court sets out in appropriate detail the necessary factual and legal findings, it greatly facilitates the hearing of any appeal. Because this was not done in the present case, this court has had to spend far longer than it should, delving into what the High Court rightly said were complicated facts.

The sequence of events

[7] In case 31/74 decided on 16 June 1978 the land passed to Kaitangare and his sister Nei Tibe as the descendants of Kaburoro. The following family tree was provided:

1st Respondent

We were not informed whether this transaction was recorded in the land register, but having regard to the later registrations, it seems likely that it was.

[8] In case 480/95 on 14 September 1995 there came before the magistrate an application by Kibau to transfer one half of the land by way of gift to the appellant and one half by sale to Temoai. It appears from the minute that Temoai was present but that Kibau was not – as noted he was “represented by letter”, i.e. we assume that the evidence of both transactions was provided to the court by letter. The minute goes on to fix the boundary between the land gifted to the appellant and the land sold to Temoai.

[9] There are four matters that should be noted about this transaction. First, it is the order on which the appellant relies to support its claim that it is the owner of the portion of the land it is claiming. Secondly, the transaction purports to transfer the whole of the land. Yet the appellant’s sister was a half owner. There is nothing to show she was a party to the transaction. Thirdly, Temoai was not a party to these proceedings nor was he represented. Yet if the contentions advanced by the respondents be accepted, he may prove not to be the owner of the land he thought he was buying. We return to this issue later. Fourthly, and importantly, in breach of the mandatory requirements of s.64 of the Magistrates Court Ordinance, the court failed to notify the entries of this transaction to the native lands registrar and to the Chief Lands Officer. As a consequence the transaction was not registered.

[10] Case CN 500/99 came before a Single Magistrate on 2 November 1999. The first respondent sought to have her name with siblings registered on the land. The Court determined that they and the issues of Kaitangare were to be registered after Kaburoro Kabaua.

[11] Case CN 25/05 came before a Single Magistrate 28 July 2005. It was an application by the first respondent for consent to the sale of what is described as the first respondent’s “plot of land” to the second respondent. The decision of the Court was that the second respondent should be registered upon “the land plot” namely Tabaonga 655a/ia concerning the settlement which will be decided by the landowner. We were advised from the Bar that the price was $10,000.

[12] This transaction was registered. We were provided with a Certificate of Ownership issued by the Land Management Division showing the second respondent registered against the land.

[13] Case CN 38/05 came before a Single Magistrate on 10 September 2005. The first respondent applied for consent to gift what is referred in the minute to be “this land of mine” to the third respondent. The Court was informed that her brothers were aware of this. The Court agreed to the first respondent’s application and made an order in the following unusual terms:

The name of the Church the International Assembly of God shall be registered but should it disburse or this Church no longer exists in the future it shall be returned to the landowner.

[14] The first respondent has deposed in an affidavit filed in the High Court that before she made the application in 1999 in case CN 500/99 she checked in the Lands Office and found that no earlier transaction had been registered over the land. This evidence confirms that the 1995 transactions in case CN 480/95 had not been registered.

[15] In her affidavit she states:

The transactions made in case 25/05 and 38/05 only affected our share of the land but not the share of Kibau over the land.

Therefore the title of [the appellant] over the land ...... by virtue of CN 480/95 only affect the share of Kibau from the land but not our share.

Conclusion

[16] If the land the first respondent sold to the second respondent and gifted to the third respondent is the same as the land Kibau endeavoured to sell to Temoai and give to the appellant in case CN 480/95 the following is the consequence. That latter transaction resulted in Temoai and the appellant acquiring an equitable interest in the land. As that interest was never registered Temoai and the appellant did not become the legal owners. When the first respondent sold part of the land to the second respondent and gifted another part of the land to the third respondent and those transactions were registered that extinguished Temoai’s and the appellant’s equitable interest in the land.

[17] However in view of those parts of the first respondent’s affidavit to which we have referred above and having regard to the omission by the Single Magistrates in CN 25/05 and CN 38/05 precisely to identify the land being sold and gifted it is not apparent from the material before the Court whether the land sold to the second respondent and given to the third respondent is the same as the land sold to Temoai and given to the appellant in CN 480/95. That is an issue that cannot and need not be determined on this appeal.

[18] What is clear is that the second respondent and the third respondent each obtained a legal title to whatever part of the land was sold and gifted in the 2005 transactions. It follows that the appellant’s application for writ of certiorari to quash those transactions cannot succeed.

Result

[19] The appeal is dismissed. We see no reason why the same counsel should not have represented the three respondents. Accordingly there will be an order for costs as for one respondent against the appellant the amount to be agreed or taxed.

[20] Nothing in this judgment can affect the interests of Temoai who, as we have noted, was neither a party to the proceedings nor represented. Hence no estoppel by res judicata can apply if he were to commence proceedings claiming an interest in the land.

Hardie Boys JA
Tompkins JA
Fisher JA