Kaere v Ioeru [2007] KICA 15; Civil Appeal 08 of 2007 (30 July 2007)

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

Land Appeal No 8 of 2007

BETWEEN:

MOREI KAERE [FOR
ISSUES OF TERAUMWEMWE
MATARO & KAIRO
Appellant

AND

OREMW A IOERU
Respondents

AND

MATANEAI NAARO
[FOR ISSUES OF NAAROBONTETAAKE]
Second Respondents

Before: Hardie Boys JA
Tompkins JA
Paterson JA

Counsel: Taoing Taoaba for appellant
Banuera Berina for first respondent
Karotu Tiba for second respondent

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

JUDGMENT OF THE COURT

Introduction

These proceedings concern the ownership of a piece of land at Buota known as Tabonbuota. The land was owned by Nei Taruru, the mother of Naaro Bonetaake represented by the second respondent. In 1988, by CN 764/88, the North Tarawa Magistrate’s Court consented to the sale of the land to the first respondent. The appellant, representing the descendants of Nei Taruru, applied to the court for an order of certiorari to quash the decision in CN 764/88. The ground in the statement in support alleged that the magistrate acted unreasonably in approving the sale by the first respondent when the first respondent was not the owner of the land. However, in the High Court and in this court the appellant alleged that the sale was fraudulent.
In his judgment delivered on 21 June 2007 the Chief Justice held that fraud was not established. He dismissed the application for certiorari. From that decision the appellant has appealed.

The decision in 74/88

The record of the decision shows the parties as Naaro Letaake, now represented by the second respondents and the first respondent. The record commences by stating that the claim concerns “The obtaining of house plot at the end of Buota.” It continues by recording Naaru as stating:“The obtaining of house plot for Orema Ioeru upon my land at the end of Buota. This is to be given away by means of land purchasing, maybe half acre.” (emphasis added)

The record goes on to record that $600.00 has been paid to Naaru and that the name of the first respondent be registered on the land at the end of Buota.

The decision in the High Court

The Chief Justice set out the history of the sale and recorded the evidence in § 20 of the appellant’s affidavit on which the allegation of fraud was based:

“In fact our father Naaro had fraudulently concealed the fact that the land Tabonbuota was Nei Taruru’s land. He also did not tell us and the other family members about the sale.”

The judgment continued:

“That allegation is certainly not enough of itself to justify setting aside the 1988 decision. Fraud must be strictly proved and this is not strict proof. None of the parties has asked to go to oral evidence. Even though I have sympathy with the applicant and the second respondent (they have made common cause) it all happened nearly 19 years ago. The first respondent has enjoyed title to the land all this time. The principle of certainty of title requires that his title should not now be disturbed. I am not able to exercise my discretion in favour of the applicant.”

Submissions in this court

The appellant advanced three grounds in support of the appeal. Reduced to its essentials, the first ground was that the Chief Justice was wrong in his conclusion that there was no sufficient evidence of fraud. In support the appellant alleged that the second respondent’s father, Naaro Bontetaake, had no right to sell the land to the first respondent. It was submitted that in representing that the land was his, in the passage emphasised in § 4 above, he was not telling the truth. The second ground was that the Chief Justice erred in not considering section 14 of the Native Lands Act Code which provides:

“An owner may sell a land, a pit or a fishpond if his next of kin and if the court, having considered the matter, approve. Before reaching its decision the court should first consider if the lands remaining to the owner after the sale are sufficient for him and his children.”

It was submitted that there was no evidence to show that the appellants, the children of the owner, were notified or were aware of the hearing or that they approved of the sale. Nor is there any evidence to show that the court considered if the lands remaining were sufficient for her and her children. The third ground was that the Chief Justice was wrong in taking into account the principle of indefeasibility of title when it had been held that the principle does not apply in proceedings by way of certiorari.

Fraud

The basis of the allegation of fraud is in § 20 of the second appellant’s affidavit, noted in § [6] above. There is no other evidence. The statement by the deponent is apparently founded on the evidence recorded by the Magistrates in 74/88 in the passage we have noted at § [4] above

In our judgment in appeal 5 of 2007, Utimawa Bukaineti and Anor v Ioteba Tekimwa we set out what is required to prove fraud. Applying those comments to this case, the appellants need to satisfy the court to the high standard required that when Naaro referred to the land as “my land”, he knew that the statement was false and that he made the statement with the dishonest intention of deceiving the court into believing that he was the owner.

The evidence falls far short of what is required. Indeed, some of the evidence suggests that if he did use that phrase, and we are conscious of the fact that the sense may have been affected by the translation, he did not intend to deceive. In the affidavit of the first respondent she deposes:

“ . . . All I know is that Borenga bought the land from Naaro as well in Case No 63/86, two years before I bought part of the same land from him. I also know that Naaro had sold part of the same piece of land to Tekiera in Case No 7/88 before I did. It would seem that Naaro was acting on behalf of Nei Taruru at the time he sold the land to me and to the other buyers before me for she did not do anything to stop him from selling the portions of the land.”

This evidence was not challenged. Further there is evidence that Nei Taruru was living on the land - she died in 2000. The first respondent was also living on the land she had bought, but Nei Taruru never made any complaint. The evidence clearly suggests that Naaro was acting as agent for Nei Taruru, but even if the evidence is uncertain, it certainly does not go anywhere near proving fraud.

Section 14 of the Native Lands Act Code

There is no evidence to show that the court in approving the sale, complied with the section and satisfied itself that the lands remaining to the owner after the sale were sufficient for her and her children.

It is not necessary for us in this decision to decide whether non compliance with the section can in any circumstances render a sale void. Even if it could, it clearly should not in the circumstances of this case. The first respondent was an innocent purchaser for value with no knowledge of any defect in her title, and has remained in possession for almost 20 years, with the knowledge of the appellants. These facts are sufficient grounds for exercising the court’s discretion against the granting of relief.

Indefeasibility of title

In the circumstances as we have found them, particularly the absence of fraud, this issue does not arise. We accept that fraud can overcome the principle of indefeasibility in certain circumstances which, in the absence of fraud in this case, we need not consider.

Result

The appeal is dismissed. The respondents are entitled to costs. We see no reason for the second respondent to have been separately represented – Mr Tiba made no submissions. So the costs to be agreed or fixed by the registrar are to be for one counsel.

Hardie Boys JA
Tompkins JA
Paterson JA