Kaitangare v Nataua [2006] KICA 24; Land Appeal 10 of 2005 (26 July 2006)

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

Land Appeal No 10 of 2005

BETWEEN

BAURO KAITANGARE MTMM
APPELLANTS

AND

ISSUES OF TEARAWAIA NATAUA
RESPONDENTS

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Fleur Hamilton for appellant
Taoing Taoaba for respondent

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

JUDGMENT OF THE COURT

[1] The nature of the issue between these parties was set out in the following passage in the judgment of the Chief Justice delivered on 6 October 2005:

"Before the Single Magistrate the respondents [the appellants in this court] challenged the decision made in CN 110/49 that Tearawaia should be registered over the plot Taruti in Teaoraereke. That decision stood until the respondents took proceedings in CN 108/04. The respondents argued that Tearawaia had not been entitled to registration. They did not shew fraud only that the "registration was made in an unsatisfactory and irregular way" to quote from the judgment of the Single Magistrate. The Single Magistrate accepted the argument of the respondents that the Court in 1949 had made a mistake and gave them judgment."

[2] The Chief Justice held that in the absence evidence proving fraud, the Single Magistrate could not upset the decision of the Magistrates’ Court that had been made 50 years before. He quashed the decision of the Single Magistrate. From that decision the appellants have appealed to this court.

[3] When the appeal came before this court, counsel advised the court that the parties had reached an agreement on the terms of a consent order. Their draft order is attached to this judgment.

[4] We agree that the draft or is an appropriate order to make with one exception. Paragraph 4 is inappropriate in that proceedings are not to be commenced in the magistrates’ court since, under paragraph 1 of the draft, the matter is remitted to the magistrates’ court for determination.

[5] After discussion with counsel, paragraph 4 of the draft is deleted and the following substituted:

That if the appellants do not take active steps to pursue that matter in the magistrates’ court within three months of the date of this order, the determination previously made in the magistrates’ court shall remain undisturbed.

Hardie Boys JA
Tompkins JA
Fisher JA