Tiaeki v Tekaai [2007] KICA 5; Land Appeal 07 of 2007 (30 July 2007)

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

Land Appeal No. 7 of 2007

BETWEEN

TANIMWAKIN TIAEKI
Appellant

AND

BEBETE TEKAAI
Respondent

Before: Hardie Boys JA
Tompkins JA
Paterson JA

Counsel: Mantaia Kaongotao for appellant
Taoing Taoaba for respondent

Date of Hearing: 28 July 2007
Date of Judgment: 30 July 2007

JUDGMENT OF THE COURT

Introduction

[1]. In 1948 in case 465/48 Tonganibeia exchanged his land Tearabungea 657a with land Tewintake owned by Nei Mere. When Nei Mere died he respondent was registered as owner in case 42/62 and confirmed in C/N 133/76.

[2]. The appellant and her family moved onto the land. The respondent took proceedings to evict them. The appellant contested the proceedings, claiming that the registration in 1948 was obtained by fraud. This claim was rejected by the Single Magistrate. The appellant appealed.

[3]. When the appeal came before the High Court on 17 March 2006, the court decided that the Single Magistrate had not sufficiently considered the allegation of fraud and referred the matter back to the Single Magistrate, not for rehearing, but only to consider and make a decision on the allegation of fraud.

[4]. The Single Magistrate did so. In a detailed decision she decided that fraud had not been established and that the appellant should leave the land.

[5]. From that decision the appellant appealed. In a judgment delivered on 23 March 2007 the High Court held that it could find no error in the judgment of the Single Magistrate, that none of her findings was obviously wrong and the appeal was dismissed.

[6]. From that decision the appellant has appealed to this court.

Conclusion

[7]. This appeal cannot succeed. Whether there was fraud at the time of the registration in 1948 is a matter of fact. So any challenge to the High Court’s decision that fraud had not been proved can only involve a question of fact. Appeals to this court from the High Court in its appellate jurisdiction can only be on a question of law. This court does not have jurisdiction to hear the appeal.

[8]. It was submitted on behalf of the appellant that when the matter was referred back to the Single Magistrate for reconsideration, there should have been a full rehearing, and that the absence of a full hearing meant that the appellant was not given an adequate opportunity to be heard. It is apparent from the report of the judgment of the Single Magistrate that she gave careful consideration to the fraud allegation and decided that it had not been proved. This again does not give rise to a question of law, rather it is one of procedure.

[9]. In our decision in the appeal Bukaineti v Tekimwa Land Appeal no 5 of 2007, this court set out what needs to be established to prove fraud. Where, as here, the alleged fraud occurred almost 60 years ago, the task of proving fraud to the required standard becomes almost impossible. We have no reason to doubt that the conclusion of the Single Magistrate that fraud had not been established was correct.

Result

[10]. The appeal is dismissed. The respondent is entitled to costs, to be agreed or fixed by the registrar.

Hardie Boys JA
Tompkins JA
Paterson JA