Biribo v Kirata [2010] KICA 2; Civil Appeal 02 of 2010 (18 August 2010)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO

Civil Appeal 2 of 2010

BETWEEN:

TEAKAMATANG BIRIBO
Appellants

AND:

TARATAU KIRATA
Respondent

Before: Tompkins JA
Fisher JA
Williams JA

Counsel for Appellant: Mantaia Kaongotao
Counsel for Respondent: Banuera Berina

Date of Hearing: 12 August 2010
Date of Judgment: 18 August 2010

JUDGMENT OF THE COURT

Introduction

[1] This is an appeal from a decision of the High Court given on 30 September 2009 in HCCC 199/07. By that decision the Chief Justice quashed a Magistrate's Court decision in CN TTT 105/07. The decision in CN TTT 105/07 had purported to grant the appellants an interest in the subject land.

Background facts

[2] In cases of this kind it would be helpful if counsel would always provide a chronological outline of the background facts, a plan of the subject land, and all relevant family relationships, before turning to the argument. Considerable time was spent in this case, as in others, ascertaining matters which ought to have been common ground.

[3] From what we ascertained during the hearing it appears that the respondent and his family had an interest in a block of land known as Naniman 770. The block was divided into smaller contiguous lots known as 770a, 770b, 770c etc.

[4] At one time the appellant's father, Biribo, had also held an interest in part of Naniman 770. The appellant's father later sold all or some of his interests in the land. The appeal turns on the question whether he sold all of his interests or retained a portion. If he retained a portion, the appellant and his siblings would now be entitled to share in that portion by right of succession. If the father sold all of his interests, there would be nothing left for the appellant and his siblings to share.

[5] On 7 November 2007 the appellant obtained a decision of the Magistrates' Court in CNTTT 105/07 holding that he and his siblings were the owners of a portion of Naniman 770 known as 770a/3ai. The appellant then moved onto that portion of the land.

[6] The respondents say that they had no knowledge of the proceedings or the decision in CNTTT 105/07. When the appellant arrived on the land they brought proceedings in the Magistrates' Court for his eviction.

[7] The appellant responded by bringing proceedings for certiorari in the High Court on 27 December 2007 under HCC 199/2007. On 19 May 2008 the High Court held that although an earlier land list showed the appellant's father, Biribo, as an owner, "a later land list dated 19 March 2008 does not shew Biribo as an owner of any part of land Naniman 770". There was evidence that Biribo "says that all his remaining land is being bought by other people." The Court concluded that "the [appellant] had no interest in the land". In its final conclusion to that effect the Court identified the land in question as "the land the subject of the determination in CN B188/00". This was not a helpful way of defining the land in question for the purpose of the present appeal given that counsel did not produce the decision in CN B188/00. However the reference earlier in the judgment to "Naniman 770" makes it clear that the whole of that land was at issue. There was no appeal from that decision.

[8] Notwithstanding the decision in HCC 199/2007, the appellant stayed on in occupation of a portion of the land. In consequence the respondents continued with proceedings in the Magistrates' Court for his eviction.

[9] On 17 March 2009 in response to the claim for eviction the appellant produced a Certificate of Ownership over the land in Naniman 770a/3a. The decision was based on the Magistrates' Court decision in CN TTT 105/07. The respondents say this was the first time that they had heard of that decision.

[10] The respondents then brought the current proceedings for certiorari in the High Court HCCC 78/09 seeking to quash the Magistrates' Court decision in CN TTT 105/07.

[11] In a terse judgment the Chief Justice held that the decision in CN TTT 105/07 was contrary to that in HCCC 199/07 and could not stand against a contrary decision in the High Court. The decision in CN TTT 105/07 was therefore quashed.

[12] From that decision the appellants now appeal.

The Appeal

[13] In this Court Mr Kaoangatoa sought to show that that portion of the land in Naniman 770 occupied by his client was not affected by the High Court decision in HCCC 199/07. On that basis he argued that the decision in CN TTT 105/07 could stand.

[14] On our interpretation of the decision in HCCC 199/07, the appellant and his siblings were held to have no interest in any part of Naniman 770. Naniman 770 includes that portion of the land occupied by the appellant. It follows that the decision in CN TTT 105/07 was inconsistent with the High Court decision and was rightly quashed. There was never any appeal from the decision in HCCC 199/07.

Conclusion

[15] The appeal is dismissed with costs to the respondent to be agreed or fixed by the Registrar.

Tompkins JA
Fisher JA
Williams JA