Uouo v Tooki [2008] KICA 7; Land Appeal 8 & 12 of 2007 (20 August 2008)

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

Land Appeals 8 and 12 of 2007

Between:

ABAUA UOUO
FOR ISSUES OF AKOUA RUAIA
Appellants

And:

MEAUA TOOKI FOR ISSUES
OF MWERETAKA TEWWEBWE
First Respondents

And :

ISSUES OF TUTU TEKANENE
Second Respondents

AND:

ISSUES OF NEI TATIKU TAWA
Third Respondents

Before: Tompkins JA
Fisher JA
Smellie JA

Counsel for appellants: Mr Banuera Berina
Counsel for first respondents: Ms Meghann Everett
Counsel for second respondents: Mr Karotu Tiba (abides decision)
Counsel for third respondents: Mr Raweita Beniata (abides decision)

Date of Hearing: 14 August 2008
Date of Judgment: 20 August 2008

JUDGMENT OF THE COURT

Introduction

1. On 14 May 2007 in cases HCLA 8/2007 and 12/2007 the High Court of Kiribati granted an order for certiorari in relation to a 1949 decision of the Magistrates’ Court in CN53/49. The appellants now appeal to this Court against that decision.
   

Background

2. The case concerns land originally held by Mweretaka Tebwebwe. He owned three parcels of land on Tarawa at Terara, Tenekaaba and Natara.
   
3. Mweretaka married twice. His first wife was Nei Naua from whom all the parties to this appeal are descendants. His second wife was Nei Tabita.
   
4. In 1949 the Lands Court in CN53/49 was required to determine the distribution of the three parcels of land among Tem Mweretaka’s grandchildren. Its decision was recorded in a minute as follows:
   

Lands Court

Abaokoro

At 9.00 am

CN 53/49 :The Commissioner of Lands is present in court (Niti???)

Tutu with family members present for their grandfather namely Tem Mweretaka, pertaining to their lands on Tarawa.

Timote: Explains about the three lands of adoption from Tem Matang to Tem Mweretaka namely land Natari, Terekaaba situated at Animarao.

Nei Akoua: Avers that land Terara is a land of adoption given to her father namely Ruaia from Tem Matang.

Finding: Definitely is it a land of adoption given to Tem Mweretaka (sic) but not to Ten Ruaia.

Decision: Land Terara and Terekaba should go to the first spouse and the second spouse should own land Natari in Teaoraereke.

Tutu: Stated that he is not involved in this, to be owned by Akoua’s father but he is not sure about the rest of the family, but to him with sisters, it quite appropriate for them.

Nei Tatiku: Wish to be included with Nei Akoua but the lands court refuse to do so.

Timote: That the name of Ten Antonio (sic) over land namely Natari in Teaoraereke.

That the name of Tebaou with his sister over land Terara and Terekaba.

5. It is common ground that at least one effect of the decision was to give the land in Terara and Terekaaba to descendants of the first spouse, Nei Naua, and the land in Natari to descendants of the second spouse, Nei Tabita.
   
6. What is in dispute is whether the decision stopped at the point that the Terara and Terekaaba land was to go to the descendants of Nei Naua in general (as the respondents contend) or whether the decision went further and specified distribution to particular identified descendants of Nei Naua to the exclusion of all others (as the appellants contend).
   
7. The difference between those interpretations is important because Nei Naua had three children, Nei Ruabo, Ruaia and Tawa, each of whom had issue. The appellant’s case is that the Terara and Terekaaba land was left solely to the descendants of the middle child Ruaia. The respondents’ case is that the lands were left to the descendants of all three children.
   
8. If the appellants are right they keep the land to themselves. If the respondents are right the appellants have to share the land with the lines of descent represented by Nei Naua’s other two children. That has recently given rise to a dispute over the meaning of the decision in CN53/49.
   
9. The dispute has arisen in this way. Ruaia was one of the original three children of Nei Naua. Ruaia had two children, Tebaou and his sister Nei Akoua. The last sentence of the 1949 minute states "That the name of Tebaou and with his sister over land Terara and Terekaaba".
   
10. The appellants interpret that sentence as an order that Terara and Terekaaba were to be distributed to Tebaou and his sister. His sister was Nei Akoua. Nei Akoua was the appellants’ grandmother. They claim to have inherited her portion of the land in line of descent from her. They say that they do not have to share that land with the descendants of the other two children of Nei Naua.
    
11. The appellant’s interpretation of the 1949 minute is the one that has always been acted upon. Six months after the decision, Tebaou was recorded in the Lands Register as the sole owner of the land in Tererara and Terekaaba, presumably holding on behalf of himself and his sister.
    
12. In 1960 Tebaou and Nei Akoua divided the land between them, Tebaou taking sole title to some of the land in Tererara and Terekaaba and Nei Akoua taking sole title to the rest. That was approved by the Magistrates Court in CN25/60 and the Land Register noted accordingly.
    
13. When Nei Akoua died her land was inherited by her son, Abaua Uouo. Distribution to him was approved by the Magistrates Court in CN4/75 and the Land Register noted accordingly.
    
14. When Abaua Uouo died the land was inherited by his children, the current appellants. Distributions to that effect were approved by the Magistrates Court in CN718/95 and the Land Register noted accordingly.
    
15. On the strength of those distributions the descendants of Nei Akoua have from time to time sold portions of the land to unrelated third parties. This included sale of some to the Catholic Church whose headquarters now stand on land purchased from that source.

The High Court Proceedings

16. In 2007 the first respondents brought certiorari proceedings in the High Court to quash the original decision in CN53/49. The other parties were joined as affected parties. All are descendants of Tem Mweretaka. The contest was between descendants of Ruaia, the middle child of Nei Naua, and the descendants of her other two children, Nei Ruabo and Tawa.
    
17. When the proceedings came on for hearing before the Chief Justice in 2007, Ms Grover, counsel for the first respondent (all references are to status as appellant or respondent in this Court) proposed that the court make a declaration in favour of the respondents. The declaration she proposed was to the effect that the decision in CN 53/49 went no further than to distribute the lands in Terara and Terekaaba to the issue of the first wife without restriction to named descendants.
    
18. Mr Earl, counsel for the third respondents said that he supported that approach. Mr Tiba, counsel for the second respondent, said that he abided the decision of the court. The Chief Justice then turned to Mr Kaongotao, counsel for the appellants, to ascertain his position. The following exchange resulted:
    

KAONGOTAO: According to the instructions of my client he said that the distribution has been done according to the issues and in fact Your Honour there’s a long list of issues, telling me that it could be –

COURT: Do you or do you not accept what Ms Grover has put?

KAONGOTAO: Sorry?

COURT: Do you accept what Ms Grover has put that there’s been a mistake in the transcribing from the minutes of the court to the register?

KAONGOTAO: We’ll rely on what the court –

COURT: Good. Thank you. It looks – I must say that I think those ticks are very – and one would expect the decision to be at the end. The person who put the minutes as you say it almost certainly did but now two things arise from it. First what do you want me to do and secondly have I the power to do it?

19. After further discussion between the Chief Justice and Ms Grover the matter was adjourned so that she could prepare a draft order.
    
20. The appellants say that during that adjournment they discussed the matter with Mr Kaongotao who realised his mistake in failing to actively press their case before the Chief Justice. Consequently when the case resumed later that day the following exchange ensued:
    

COURT: What have you managed to do?

GROVER: Your Honour I’ve drafted some consent orders. Mr Earl my learned friend for the third respondent has agreed but the other two parties I believe have now withdrawn their submissions.

COURT: What?

GROVER: I’m not sure.

COURT: No you can’t do that.

TIBA: No Your Honour I’m not really withdrawing but what I’m doing is to confirm my instructions from my client.

COURT: No this morning you said you’d abide by the decision of the court and that’s it.

TIBA: But whatever the Court’s direction goes to I have no objection.

COURT: Are you the same Mr Kaongotao?

KAONGOTAO: Yes Your Honour but I wish to notify the court the effect of the order that it could make a difference because the land has been sold out, some part of the land.

COURT: Lets see. Now what’s your objection to it?

KAONGOTAO: It could make a difference to what had been done in the register.

COURT: But this morning you said you’d abide by the decision of the Court.

KAONGOTAO: Yes but I think the court would interpret –

COURT: You what?

KAONGOTAO: It was the court would interpret the minutes.

COURT: What do you want me to do?

KAONGOTAO: I think what Tutu and Tatiku and Timote said should be – because in my understanding the Commission decided that the first spouse should own land Terara and Tenekaba and the second spouse should own Natari in Teaoraereke but what Tutu and Tekanene said were considered at that time also that they should not be included in – they should not have a share in those lands and that’s what the register made according to what this –

COURT: What variation do you want in the draft order, if any?

KAONGOTAO: I would object to the order.

COURT: What do you want to do instead?

KAONGOTAO: I think what the minutes said should be done according to like what the lands –

COURT: Why this morning did you say you’d abide by my decision?

KAONGOTAO: I did not understand at the first place because I thought it was this court to make an interpretation of what the land commission said and how relevant the other parties said.

COURT: It looks pretty obvious that –

KAONGOTAO: Yes it’s obvious but I have some cases which also the minutes of the Commission.

COURT: Where are they? Why weren’t you prepared? This case was listed for hearing –

KAONGOTAO: It was my misunderstanding in the first place.

COURT: You can’t blow hot and cold. I put out a memorandum about that only this morning in another case. If you say one thing in court you stick with it. You give an undertaking you can’t go back on it later on.

KAONGOTAO: That’s what happened Your Honour but I’m afraid of the decision if the register was changed according to what the decision changed because it took almost 60 years and the land commission had made a registration according to what Timote and Tatiku said.

COURT: But isn’t that very obviously an error?

KAONGOTAO: An error.

COURT: Shouldn’t an error be corrected?

KAONGOTAO: What do you mean Your Honour?

COURT: If somebody makes a mistake the mistake has got to be corrected.

KAONGOTAO: Yes.

COURT: Isn’t that what we’re doing?

KAONGOTAO: I think there was no error.

COURT: You don’t think there was any mistake at all?

KAONGOTAO: Yes.

COURT: I see. So what do you want me to do?

KAONGOTAO: I think the land register this time should comply with –

COURT: Should stand?

KAONGOTAO: Yes.

21. Following further discussion with Ms Grover and Mr Earl, the Chief Justice adjourned. The effect of what he said was that he would add to Ms Grover’s draft to show that it was an order for certiorari and that it would impact upon the land register in a meaningful way.
    
22. In due course the Chief Justice issued an order in the following terms:
    

ORDERS AND DECLARATION

Application for order of certiorari granted.

Order that case No. 53/49 be removed into this Court.

Declare

(1) That the judgment of the Lands Commission in CN 53/49, previously noted as 164/49, is to be upheld in the terms as it was pronounced by the Lands Commission, namely that:

(a) the lands Terara 721a and Terekaaba 757i are to be registered in the names of the issues of Mweretaka Tebwebwe’s first spouse; and

(b) the land Natari 794t is to be registered in the names of the issues of Mweretaka Tebwebwe’s second marriage.

Order:

(2) That all relevant public documents be amended to reflect paragraph 1.

23. The appellants now appeal from that order.
    

Preliminary points on appeal

24. Four preliminary matters need to be disposed of before turning to the substantive grounds for the appeal.
    
25. First, the appellants applied for an order joining the abovenamed second and third respondents as parties to the appeal. We agree that they should be joined and direct accordingly.
    
26. Secondly, the appellants applied for an order staying execution of the order of the High Court pending the determination of this appeal. That application is now otiose and is dismissed.
    
27. Thirdly, the judgment appealed from appears to be a declaration as to the meaning of CN 53/49. Strictly speaking certiorari is not the remedy for achieving that end. However Mr Berina sensibly recognised that the same result could have been achieved by either combining certiorari with mandamus or by making a declaration. Consequently he does not take any point as to the form in which the remedy was expressed.
    
28. Fourthly, Ms Everett submitted that as this was a second appeal, s 10(1)(b) of the Court of Appeal Act confines the appellants to questions of law. However proceedings for certiorari and their judicial review equivalents are not appeals. They are original proceedings in the High Court. Consequently this is a general appeal under s 10(1)(a) of that Act.
    

The substantive appeal

29. The appellant’s substantive grounds of appeal can be summarised as (a) procedural error in the High Court and (b) failure to take into account relevant considerations when exercising the remedial discretion. We will address each in turn.

Procedural error in the High Court

30. We accept Mr Berina’s submission that in the High Court the appellants were denied a proper opportunity to canvas the evidence and argument against the remedy granted.
    
31. The passages we have quoted suggest that the then counsel for the appellants initially appeared to abide the decision of the court. The Chief Justice was understandably critical when that counsel later reversed his approach.
    
32. However there were a number of reasons for allowing the appellants to depart from the attitude which their counsel had suggested. To begin with the transcript suggests that his concession was less than enthusiastic. Secondly a counsel is entitled to withdraw a concession made earlier in a trial subject only to costs and procedural measures such as recalled witnesses or adjournments to protect other parties. Thirdly, no formal order was defined or sealed before counsel signalled his change of heart. Fourthly, counsel’s lack of authority can in appropriate circumstances constitute a ground for setting aside even a sealed consent order.
    
33. The result of this misunderstanding was that the appellants were denied the opportunity to advance the arguments which were pursued for the first time in this Court.
    
34. Ms Everett submitted that the arguments were in fact pursued in the passages we have quoted above. We do not think that that dialogue was any serious substitute for full argument of the appellants’ case. Certainly it did not include the issues that follow later in this judgment. Whether counsel for the appellants would have been alive to all the significant arguments must remain a matter of speculation. The fact is that as he was denied that opportunity we will never know.
    
35. That would be a sufficient basis for allowing the appeal but standing alone it would justify no more than remission to the High Court for a rehearing. For the reasons that follow we think that our decision should go further by ruling out certiorari and its judicial review equivalents once and for all.

(b) Failure to take into account relevant considerations

36. The High Court orders were founded on the Chief Justice’s conclusion that the decision in CN 53/49 was materially confined to dividing the land between the unspecified descendants of Nei Naua and the unspecified descendants of Nei Tabita. He concluded that all subsequent entries in the Land Register and decisions of the Magistrates’ Court confining distribution to Tebaou and Nei Akoua and their descendants were based on a misinterpretation of the original decision.
    
37. For reasons we will come to shortly, that conclusion must be open to serious question. However we see the principal focus as the way in which the Court ought to have exercised its remedial discretion once it had come to that conclusion.
    
38. The principal points counting against the grant of any remedy were as follows:
    
    1. Approximately 60 years have elapsed between the original decision and the High Court’s intervention.
       
    2. Within months of the original decision, entries were made in Land Register on the strength of the decision. Many have since followed. The principle of certainty of title demands that those entries be now respected.
       
    100. The Magistrates Court has approved distributions in 1960, 1975 and 1995 on the strength of the original decision. The relevant land is held solely in the name of the appellants. To achieve anything, the respondents would have to have brought certiorari proceedings to quash those decisions. Without such proceedings, the challenge to, or interpretation of, the original decision was an empty exercise.
         
    4. The appellants’ family has sold portions of the land to third parties. Those third parties have paid for the land and spent time and money on improvements. Innocent third parties could suffer if full effect were given to the respondents’ interpretation of the original decision.
       
    5. For nearly 60 years the appellants’ and their family have conducted their lives on the assumption that they had sole title to the relevant land.
       
39. Because of the procedural misunderstanding these matters do not appear to have been brought to the Chief Justice’s attention. In combination we see them as fatal to a remedy.
    

Was there a mistake in the subsequent interpretation of CN 53/49?

40. In case the respondents feel aggrieved that they have been denied the opportunity to correct an obvious mistake, we should add a comment about the meaning of the decision in CN 53/49.
    
41. With the encouragement of the respondents, and a lack of effective opposition from the appellants, the Chief Justice was persuaded that the only decision made by the Lands Court that day was to be found half way through the recorded minute. It followed that the person who transcribed the minute into the Land Register, and all subsequent Magistrates, were mistaken in their assumption that the second half of the minute also contained an operative decision.
    
42. We can see a ready alternative. Certainly the decision labelled as such part way through the minute divided the land between the first wife, Nei Naua, and the second wife, Nei Tabita. However neither wife was present at the hearing. Those present represented their descendants. The second half of the minute appears to be concerned with a distinct question, namely which of those descendants would actually take the land. It culminates in the naming of particular individuals as the recipients, namely Ten Antonio in the case of the second wife’s descendants and Tebaou and his sister in the case of the first wife’s descendants.
    
43. In support of that interpretation are these points:
    
    1. As the Chief Justice pointed out, a decision is usually placed at the end of minutes. In this case there was a decision part way through the minute but that does not lessen the expectation that one would also be found at the end.
       
    2. As the Chief Justice also pointed out, the Kiribati word for decision, "Tia Mote", would be easily mistaken by the scribe for "Timote". That is the word introducing the last two sentences of the minute.
       
    100. The respondents’ interpretation would make the second half of the minute otiose – why go on to record something after the first decision unless it was also intended to be of legal consequence?
         
    4. It is recorded part way through the second half of the minute that the Lands Court refused Nei Tatiku’s wish to be included with Nei Akoua. Nei Tatiku was a descendant of Tawa, the third child of Nei Naua. The Court’s refusal is consistent with the appellants’ interpretation and irreconcilable with that of the respondents.
       
    5. The Commissioner of Lands was present at the court hearing. He also signed the subsequent entry in the Lands Register endorsing the appellants’ interpretation.
       
44. At the very least, there must be a strong argument that the decision in CN 53/49 has been correctly interpreted all along.
    

Conclusion

45. The appeal is allowed. The High Court decision of 14 May 2007 is set aside.
    
46. The first respondents must pay the appellants costs to be agreed or taxed.
    

Tompkins JA
Fisher JA
Smellie JA