Atera v Taketau [2008] KICA 4; Land Appeal 3 of 2008 (20 August 2008)

In the Kiribati Court of Appeal
Land Jurisdiction
Held at Betio
Kiribati

Land Appeal No 3 of 2008

Between:

ISSUES OF TEBIRI ATERA
Appellants

And:

TERIBUA TAKETAU MT MM
Respondents

Before: Millhouse P
Tompkins JA
Fisher JA

Counsel: Mantaia Kaongotao for appellants
Banuera Berina for respondents

Dates of Hearing: 15 &18 August 2008
Date of Judgment: 20 August 2008

JUDGMENT OF THE COURT

In case No. 56/69 the Tamana Magistrates’ Court distributed the remaining undistributed five lands of the late Atera Ruka. They were to be registered in the name of Tebiri who, the Court was told, was Atera’s eldest child.

In High Court land appeal 186/84 the Court, presided over by
J R Jones CJ, dismissed an appeal from an unsuccessful attempt to upset the 1969 distribution. The Court said:-

We are an appeal court but there is no appeal before us from those cases in the 1960’s and it is now too late to appeal those cases which are so old. Special leave has to be given to appeal after 21 days. We have not been asked to give leave, nor would we give leave to appeal such old cases, except in the most unusual circumstances, which do not apply here.

We are now considering an appeal from the decision in High Court land appeal 89/87. The High Court, by then presided over by
V O Maxwell CJ and sitting in Tamana, on 13 February 1989, allowed an appeal from the decision of the magistrates in CN 56/69. The ratio of the decision:-

Tebiri is the son of one Tebiri the respondent’s husband. Tebiri the elder died before Atera. The respondent’s case is that her husband Tebiri was adopted as a son. There is no record of such adoption before the court in 1969. And neither the magistrates nor the respondent mentioned this fact in the records of case 56/69.

We therefore cannot understand why the magistrates decided to register Tebiri junior on Atera’s lands.

Instead of merely quashing the decision in CN 56/69 and sending it back to the magistrates for rehearing, the Court made a distribution of its own, giving the lands to the appellant in the case before it, Nei Teribua Taketau with brothers and sisters. The Court did not mention the earlier decision in CN186/84.

The appellants in this case ask us to grant leave to appeal out of time from the decision, to allow the appeal and restore the distribution made in the original CN 56/69.

We were at first concerned with our power to grant leave out of time. Upon reading the Court of Appeal Act and the Rules we are satisfied we have the power.

Rule 6 made pursuant to the Court of Appeal Act:

6. Subject to these Rules, the High Court Rules shall apply to proceedings in and before the Court of Appeal in civil causes or matters.
   

Order 60 rule 3 made pursuant to the High Court (Civil Procedure) Rules 1964:

3(1) Subject to the provisions of Rule 2 of this Order no appeal shall be brought after the expiration of fourteen days in the case of an appeal against an interlocutory decision or of three months in the case of an appeal against a final decision, unless ...... the Court shall enlarge the time.

Mr Berina for the respondents immediately took the point that the Court has no jurisdiction to hear an appeal. When the decision was given in February 1989 there was no right of appeal from that decision.

Section 79 of the Magistrates’ Court Ordinance as it was in 1979:-

Subject to the provisions of this or any Ordinance or rules of law an appeal shall lie against any judgment or decision of the High Court in any criminal or civil appeal other than a land cause or matter in such cases and in such manner as may be prescribed by law.

It was not until an amendment in 1990 (assented to by the Beretitenti on 9 January 1991) that the words "other than a land cause or matter in such cases" were deleted from the section, giving a right of appeal in land matters.

In February 1989 when the High Court decision was given there was no appeal: the title of the appellant became indefeasible. Did the 1990 amendment give the appellant a right of appeal when there had been none in 1989? Did the 1990 amendment have retrospective effect?

The general rule is that the statute does not have retrospective effect.

Perhaps no rule of construction is more firmly established than this – that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. (Per Wright J, In re. Athulmney, 1898 2 QBD 547 @ 551-552 cited in Maxwell on Interpretation of Statutes, 11th edition @ 205).

[The principle is echoed in section 19(b)(c) of the Interpretation General Clauses Ordinance.]

If retrospective, the amending statute, the 1990 amendment to the Magistrates’ Court Ordinance, would have impaired an existing right. It would have taken away the indefeasibility of title of a successful party in a land matter from the moment of judgment (because there had previously been no appeal from the decision). As well it would have given a new right, the right of appeal in a land cause or matter. Substantive rights: one lost, one gained: not merely procedural. In accordance with principle the amending Act operated prospectively but not retrospectively.

There could never have been an appeal from the decision in High Court land appeal 89/87. This appeal to us is incompetent and fails.

We should add that even if the Court did have jurisdiction to entertain it, the appeal would have failed: time within which to appeal would not have been extended. For two reasons. First, we cannot believe that the appellants could not have become aware of the 1989 decision before 2004 (when the deponent Ritiata Tebiri says he first became aware of it) and could not have taken action before they did. Secondly the principle of certainty of title requires that a decision made nearly 20 years ago should stand. The delay has been far too long for time to be extended.

Finally. The parties in HCLA 89/87 from which this appeal comes were:

Nei Teribua Taretau	Appellant
and
Nei Winete Tebiri	Respondent

The parties in this appeal are:

Issues of Tebiri Atera	Appellant
and
Teribua Taketau mt mm	Respondent

On the face of it the persons bringing this appeal have no standing as they were not parties in the original proceedings.

It appears from the affidavit of Ritiata Tebiri, however, that the appellants are the issue of Tebiri Atera: their mother was Nei Winete Tebiri, the respondent in HCLA 89/87. Mr Berina did not question the capacity of the appellants to bring the appeal.

In accordance with the long standing practice of the Court to allow the issue of a deceased litigant to continue proceedings, we accept the capacity of the appellants to bring the appeal.

The appeal is dismissed.

Millhouse P
Tompkins JA
Fisher JA