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Unikannara v Catholic Beterin Ambo [2007] KICA 9; Land Appeal 03 of 2007 (30 July 2007)
IN THE KIRIBATI COURT OF APPEAL
LAND JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI
Land Appeal No 3 of 2007
BETWEEN
KINONOUA UNIKANNARA MT MM
Appellants
AND
CATHOLIC BETERIN AMBO
Respondents
Before: Hardie Boys JA
Tompkins JA
Paterson JA
Counsel: Stephen Earl for appellant
Banuera Berina for respondent
Date of Hearing: 26 July 2007
Date of Judgment: 30 July 2007
JUDGMENT OF THE COURT
INTRODUCTION
- This is an appeal against the judgment of the High Court given on 1 December 2006 on an appeal from the Single Magistrate. The issue
is whether Nei Kaeua sold a piece of land to the Catholic Church (the respondent) or whether she gave the respondent a mere right
to occupy the land.
PRELIMINARY MATTERS
- The appellants, the children of Nei Kaeua, sought leave to bring this appeal out of time, and to have the expenses associated with
the appeal waived. Leave was given on the time matter and there was an order waiving the expenses associated with the appeal.
- In both the High Court and this Court the respondent was described as "Tawerio for Catholic Church, Beterin". Naming Tawerio as a
party was not in compliance with section 6 Religious Bodies Registration Ordinance. An application was made to remedy the situation
and leave was given to substitute the name of an authorised trustee in Tawerio’s stead.
THE ISSUE
- On 4 August 1989 Nei Kaeua signed a document in I-Kiribati, a translation of which reads:
04 April 1989
To,
Your worship, and Magistrate’s court;
I hereby allow part of my land which is from one side of the road down to foreshore of my land, and I also allow Catholic Church to
build a seawall as to reclaim land to settle upon and to own it.
In this agreement, I also allow the Catholic Church to settle upon the land as long as they wish for. If they had enough of it, they
may move to some place else, and by then I should have my land back.
As my agreement wish the Ambo Catholic Church is now completed, I want the Church to pay me the amount of $5,000.00 as for being staying
on my land and I would not claim for further amount from the church later in future.
Signature: | Signed Landowner |
| Signature: | Signed Issue of landowner |
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Signature: | Signed Witness |
| Signature: | Signed Witness |
Although there was no evidence on the point, the Court was told from the bar that both witnesses were members of the Catholic Church.
- In July 1993 a further document was signed. The translation of it reads:
Statement
I Nei Kaeua Kinonoua wish to reveal that the Catholic Ambo parish in AMBO on South Tarawa has paid to me the sum of $5,000.00 (five thousand dollars) as for the purchase of part of the foreshore of my land
namely Etanterawa 744a in Ambo which is south of the road which attached to their reclaimed land.
The sum paid to me on 27th day of July 1993. Before two witnesses, their signatures shown below:
Signed: |
| (1) Witness : | Nei Uua Onikanara signed |
Kaeua |
| (2) Witness : | Nei Borateata Onikan signed |
Names and Signatures shown below are representatives of the Catholic Church on Ambo, and we wish to confirm here that we have given
the landowner namely Kaeua Kinonoua the sum of $5,000.00 on the 27th day of July 1993.
Signed | Signed |
Chairman (Cath, Ambo) Johnny Kulene | Catechist (Cath Ambo) Betero Karotu |
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Signed | Signed |
Vice-Chairman Teikabi Taukaban | Treasurer Nei Miina Kulele |
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Nei Uua Onikannara | Signed |
Nei Borateata | Signed |
Nei Bweaua | Signed |
Kinonoua | Signed |
The sum of $5,000 referred to in the document was paid on or about 27 July 1993. It was the only payment made by the respondent to
Nei Kaeua in respect of the land.
- The issue is, did Nei Kaeua sell the land to the respondent, or merely give it a right to occupy?
THE PREVIOUS JUDGMENTS
- The Single Magistrate considered the respondent’s application to be registered as owner of the land. In a decision given on
28 February 2006 she declined to register the respondent as owner of the land, although it registered it as the owner of the seawall.
The Single Magistrate respected "the intentions of this old woman namely Kaeua when she gave away her land to the Catholic for it
to reside on it up until it wishes to".
- The respondent appealed to the High Court. That Court read the two documents together and held that in doing so the intention is not
difficult to see. On the balance of probabilities the Church should own the land. It quashed the Single Magistrate’s decision
and ordered that the land be registered in the name of the respondent’s trustee.
THE APPEAL
- For the appellants Mr Earl submitted that the intention was not to sell the land because of the statement in the April 1989 document
that "they may move to some place else, and by then I should have my land back". He further relied upon "uncertainty" on the face
of the documents, the conduct of the parties and estoppel.
- Mr Berina for the respondent submitted that the April 1989 document was provided to tell the magistrate that she allowed the Catholic
Church to build a seawall. The July 1993 document evidenced that she had received $5,000 from the Catholic Church for the purchase
of part of her land. That document was clear and did not require clarification. Unlike the April 1989 document which had been acknowledged
by one child of the landowner, the July 1993 document was acknowledged by all her children.
DISCUSSION
- The meaning of a document is to be ascertained by adopting the meaning which the document would convey to a reasonable person having
all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the
time of the contract. The background includes absolutely anything which would have affected the way in which the language of the
document would have been understood by a reasonable person, except the previous negotiations of the parties and their declarations
of subjective intent. Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1WLR 896.
- In the view of this Court the meaning of the July 1993 document is clear and unambiguous. The sum of $5,000 was paid to Nei Kaeua
"for the purchase of part of .... Etanterawa 744a". A purchase of land means to a reasonable person the absolute sale and purchase
of the land and not the granting of a right of occupancy.
- The plain and ordinary meaning of a term in a contract can be given another meaning when considered in context and against permissible
background facts. In this case there is nothing in the context of the rest of the July 1993 which suggests that the word "purchase"
should be given a different meaning. On the contrary the context confirms the meaning. This document, unlike the April 1989 document,
was signed by representatives of the Church as a party and by all Nei Kaeua’s children.
- The background facts do not, in this Court’s view, place a different meaning on the July 1993 document. The April 1989 document
is evidence of the landowner’s consent to allow the Church to build a seawall and to allow the Church to occupy the land. No
money was paid at that time and if it was intended to be part of a contractual arrangement it was never executed. It appears to be
nothing more than a preliminary document evidencing the landowner’s intent at that time. The Church was not a signatory in
the sense of being a party. If it was evidence of Nei Kaeua’s intent at that time, subjective intent can not be an aid to interpreting
a contract.
- It is therefore this Court’s view that the July 1993 was the contractual document, and that it clearly evidences a sale of the
land.
- Mr Earl suggested that the sale may infringe the Native Lands Ordinance because all of Nei Kaeua’s children did not consent to it. There was no evidence before either the Single Magistrate or the
High Court that there were children other than those who signed the July 1993 document. This ground can not succeed.
RESULT
- The appeal is dismissed.
COSTS
- The respondent is entitled to costs. If the parties are unable to agree costs are to be fixed by the registrar.
Hardie Boys JA
Tompkins JA
Paterson JA
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