Ieuoua v Tokataake [2007] KICA 1; Land Appeal 12 of 2006 (30 July 2007)

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

Land Appeal 12 of 2006

BETWEEN:

TERIRIBWE IEUOUA
Appellant

AND:

WILLIE TOKATAAKE
Respondent

Before: Hardie Boys JA
Tompkins JA
Paterson JA

Mantaia Kaongotao for Appellant
Berenike Iuta for Respondent

Date of Hearing: 25 July 2007
Date of Judgment: 30 July 2007

JUDGMENT OF THE COURT

INTRODUCTION

[1]. This is an appeal from a decision of the High Court given on 25 August 2006, when in its appellate jurisdiction it dismissed an appeal against the decision of a Single Magistrate which confirmed the respondent as the owner of land at Anteuri.

[2]. Counsel for the appellant made an oral application for leave to bring this appeal out of time. The respondent did not object to this application and leave was given accordingly.

BACKGROUND

[3]. The High Court in a decision given on 14 January 2003 quashed a decision of a Single Magistrate (made in action 2/2002). In doing so it reserved the right of the respondent in that action (the appellant in this appeal) to take another action against the appellant (the respondent in this action) relating to the ownership of the land Anteuri.

[4]. The appellant and others, in accordance with the right reserved in the High Court judgment of 14 January 2003, brought new proceedings in the Magistrates’ Court (TT 1/03). In a judgment given on 7 June 2003 the Magistrates’ Court concluded that the registration of the respondent, Willie Tokataake, "over the land Anteuri is correct in law". The judgment of the magistrate on 7 June 2003 stated that various matters had been referred back to it, but the copy of the judgment of 14 January 2003, produced to this Court, suggests that nothing was actually referred back to the magistrate, but that the right of the appellant to bring a further action was preserved. Nothing turns on this point.

[5.] The appellant appealed to the High Court from the Single Magistrate’s decision given on 7 June 2003. In his notice of appeal, the ground for appeal was stated:

The learned Single Magistrate erred in law in holding that she is bound by s4 of the Native Lands Ordinance and therefore cannot correct the ownership for land Anteuri without considering that in law she had the power to do so should she find that fraud is involved.

No reason was given for the delay of nearly three years in filing the notice of appeal.

[6]. The High Court began hearing the appeal on 2 June 2006. On that day it issued the following memorandum:

MEMORANUM

This is an attempt to upset a decision by the Lands Commission in 1948. The Single Magistrate found against the appellant on the ground that she had no jurisdiction to order an alteration to the Land Register. The question of fraud had been raised by the appellant but the Single Magistrate did not make any finding on it. The only possibility of success for the appellant would be to prove conclusively – a heavy onus – that there had been fraud in 1948.

We therefore return the case to the Single Magistrate to make a direct finding on the issue of fraud. Unless the Single Magistrate finds fraud conclusively proved then the appellant must fail.

We shall await the report of Single Magistrate Tirita.

[7]. The Single Magistrate replied to the memorandum in the following terms:

In regards to the requirement of my finding, as to whether there is fraud or not, I’m most pleased to reveal here that during the hearing of this case and from evidence laid before court and found that it wasn’t enough for me to prove that there was an act of fraud being committed by the respondent, as for these reasons below:

1. I am not satisfied by the plaintiffs that thee was fraud done in regards to their lands, as they did not clarify it in their evidence.

2. Their evidence is not enough to clarify as to what was the fraud, and it is their obligation to prove fraud.

3. This in regards to the registration of the King’s name, they did not know how come the King’s name being registered and as well as this court as there is no evidence from their side, from the respondent’s side he doesn’t know anything as only their old people.

The main reason why I am in favour of the respondent because the evidence of the plaintiff is not enough to make it clear to this court as to what was an act of fraud been committed the respondents.

[8]. On receipt of the Memorandum from the Single Magistrate the High Court reconvened on 25 August 2006. A judgment was given ex tempore that day. It referred to the reply of the Single Magistrate and then said:-

The Single Magistrate’s report is quite conclusive.

Ms Taoaba has asked for time to take instructions but we can see no point in that.

The appeal is dismissed.

THE APPEAL

[9]. Notwithstanding the grounds in the Notice of Appeal, there was only one ground which could be considered by this Court. It was whether the Single Magistrate had a duty to hold a new hearing to determine whether there had been fraud, when she received the Memorandum referred to in paragraph 6 above and before she provided her reply detailed in paragraph 7 above. An alternative way of stating the ground, is whether the High Court was entitled to rely on the Single Magistrate’s reply, notwithstanding that she had not convened a further hearing to consider the issue of fraud.

[10]. Mr Kaongotao for the appellant submitted that a new hearing was required to determine the issue of fraud. This would have given the parties, especially the appellant, an opportunity to submit new evidence and make submissions on the issue of fraud. Fraud could then have been proved strictly. The basis of the submission was that the appellant had not been given the opportunity to establish fraud. Counsel was unable to indicate what evidence existed to establish fraud, apart from making inferences from events which occurred and were matters of record.

DISCUSSION

[11]. The appellant had the opportunity to produce evidence in support of the fraud allegations in the hearing before the Single Magistrate in 2003 (TT 1/03). The transcript of the submissions and hearing in May 2003 do not contain evidence of fraud. The respondent in giving evidence said, "I know the land belongs to my father, and an error has been done". It is unclear to this Court when the alleged fraud is said to have occurred. It could be as early as 1948 or as late as 1983. In her judgment of 7 June 2003, the Single Magistrate noted the appellant’s claim that "there has been fraud done". She knew of the allegation when she concluded that the registration of the respondent over the land was correct under the law. If fraud was an issue the appellant’s right to argue this issue was at the hearing in May 2003. Evidence in support of fraud should have been adduced at that hearing. A perusal of the record establishes, that while fraud was undoubtedly raised in submissions, no credible evidence upon which a finding of fraud was led at the hearing.

[12.] Against this background it was not strictly necessary for the High Court to seek the views of the Single Magistrate in June 2006. The appellant had had the opportunity of raising fraud before the Single Magistrate in May 2003, had done so, but had not produced any credible evidence in support of the allegation. The High Court on 2 June 2006 would have been within its rights to have dismissed the appeal at that stage.

[13]. In the circumstances the Single Magistrate was not obliged to hold a further hearing. Not only was she not requested to do so, but also, if she had done so, the appellant would have achieved a rehearing as a consequence of an appeal. As it was, she had all the material before her that was likely to be relevant to the issue.

[14]. Whether or not it was necessary to request the report from the Single Magistrate, the report only reinforced the inevitable. The appellant had not in his case before the Single Magistrate adduced evidence which remotely indicated fraud. That was his opportunity to do so and he was unable to establish fraud.

RESULT

[15]. For the reasons given this appeal is dismissed.

COSTS

[16]. The respondent is entitled to costs. If the parties are unable to agree costs they are to be fixed by the registrar.

Hardie Boys JA
Tompkins JA
Paterson JA