Bukaineti v Tekimwa [2007] KICA 7; Land Appeal 05 of 2007 (30 July 2007)

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

Land Appeal No 5 of 2007

BETWEEN

UTlMAWA BUKAINETI
TAAMEA TERA0I
Appellants

AND

IOTEBA TEKIMWA
Respondents

Before: Hardie Boys JA
Tompkins JA
Paterson JA

Counsel: Michael Takabwebwe for appellant
Botika Maitinnara for respondent

Date of Hearing: 27 July 2007
Date of Judgment: 30 July 2007

JUDGMENT OF THE COURT

Introduction

[1]. This appeal concerns lands known as Terawabono 541-i, Maeu 622-u, and Tamoa 248-a ("the disputed lands"). The respondent, the appellant in the High Court, is registered as owner of the disputed lands in accordance with the decision of the Lands Commissioner in CN 10/56. In Lands Court case 55/06 the Single Magistrate decided that all the disputed lands should be returned to the original owner Takeiti Temanga on the grounds of fraud. From that decision the respondent appealed to the High Court. The High Court held that there was no sufficient evidence to prove fraud. Accordingly, the decision of the Single Magistrate cannot stand. That decision was quashed.

[2]. From that decision the appellants appealed to this court.

The facts

[3]. The case begins with the decision (undated) of the Lands Court in 10/56. The court decided that, in accordance with the will of Nei Takeiti, the lands Terewabono 541-I, Maeu 622-n, Nawerewere 650-n and Tamoa 748-a should be registered in the name of Ioteba, the respondent in this appeal.

[4]. From that decision the descendants of Nei Takeiti appealed. The appeal came before the Lands Commissioner on 28 November 1956. The children of the deceased challenged the decision of the Lands Court. The Commissioner’s decision decided:

"A great deal of neglect is proved but Temanga should have been nursed by his children and Matang and Ititake by their sister. The respondent [Nei Kaute] did however a great deal and appellants did nothing and the court decision will be confirmed for three lands but one land will be kept for the family.

That land Nawerewere 650-n should be divided into three shares between Nei Tokantekai, Tawewere and Maroniti. The lands which are Terawabono 541-i, Maeu 622-n and Tamoa 748-a to be remained with Ioteba."

[5]. The decision of the Lands Commissioner contains a family tree that shows that Nei Teraennang was married to Temanga and that they had three children, one of whom was the testatrix Nei Takeiti, all of whom had no issue. Two of those present at the hearing were the appellants Tawewere and Maroniti who were Temanga’s nephews, the children of his brothers. Also present as respondent was Nei Kaute, the mother of the present respondent Ioteba, the beneficiary of the will of Nei Takeiti.

[6]. The descendants of Nei Takeiti brought an application to the Magistrates’ Court CNMK 55/06 seeking a return of the three parcels of land given to Ioteba by the decision of the Lands Commissioner. It appears from the record of the proceedings that Iotebwa Tekima (who we take it to be the same person as Ioteba) was not present. The grounds of the claim was that it had been represented to the Lands Commissioner that Matang had died without issue, whereas the plaintiffs in these proceedings claimed that one of his children did have issue. In a lengthy decision dated 22 September 2006, the Single Magistrate decided that the earlier decision had been done "in an illicit co-operation", i.e. fraud, and that the lands in the name of the defendant (the respondent in these proceedings) should be returned to the initial owner namely Takeiti Temanga.

[7]. It was from this decision that the respondent appealed to the High Court. The High Court held that there was insufficient evidence to justify a finding of fraud. Hence the appeal was allowed and the decision of the Single Magistrate was quashed.

Fraud

[8]. We have noted many cases where a party seeks to have set aside a decision made by a court, sometimes years or decades before, on the grounds of fraud. It may be helpful if we set out what is required to be proved for such an allegation to succeed. The person making the allegation must prove that the evidence or statement challenged was a false statement of fact, that the person making it knew it was false and that it was intended that the person or court to whom it was made would act on it. The person making it must have known that the statement challenged was dishonest and morally wrong, and that it was made with intent to deceive.

[9]. The standard of proof required is on the balance of probabilities, but because of the serious nature of an allegation of fraud, there must be strong, convincing evidence that the statement was made knowing it was false and with intent to deceive. Although that may be proved by circumstantial evidence, nevertheless the evidence must be compelling and allow of no other reasonable explanation. Thus fraud is difficult to establish. Many of the cases we have seen in this jurisdiction where fraud is alleged fall far short of what is required to prove it.

Conclusion

[10]. This appeal must fail for three reasons. First, whether or not there was fraud as found by the Single Magistrate is purely a question of fact. An appeal from the High Court exercising its appellate jurisdiction can only be brought on a question of law. As there is no question of law, this court does not have jurisdiction to determine the appeal.

[11]. Secondly, in any event, the decision of the High Court was undoubtedly correct. The allegation was that the Land Commissioner was fraudulently misled by the evidence resulting in the family tree in the decision showing that Matang died without issue, whereas it is now claimed that he did have issue. What is completely lacking is any evidence to show that the representation resulting in the family tree was made fraudulently in the sense discussed above. On the contrary, the strong possibility is that if it were an error it was made innocently. After all, two of Matang’s cousins were the appellants and were present. It is likely that it was they as appellants who gave the information to the Commissioner. There is a total absence of any evidence to show that whoever gave the information to the Commissioner did so knowing it was false and with the intention to deceive.

[12]. Thirdly, the Single Magistrate was purporting to reverse a decision of the Lands Commissioner. He had no jurisdiction to do so. The only way a Commissioner’s decision can be challenged is by an appeal under the legislation giving the Commissioner jurisdiction, which we understand was to another Commissioner. But an appeal will not lie here, as the decision of the Lands Commissioner of 28 November 1956 was itself an appeal from the earlier decision of a different Lands Commissioner. So the only possible remedy is an application to the High Court for a writ of certiorari seeking to set the decision aside, which, for the reasons set out in [11], is almost certain to fail.

Result

[13]. 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