Attorney General v Ngatau [2010] KICA 6; Civil Appeal 08 of 2010 (18 August 2010)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTIO
HELD AT BETIO

Civil Appeal No 8 of 2010

BETWEEN:

THE ATTORNEY GENERAL OF THE REPUBLIC OF KIRIBATI
Appellant

AND:

BABARA NGATAU
BWENAUA KAINO MT
KABWEBWENIBEIA YEE-ON MT
NEI BUTINA IEREMIA FOR ISSUES OF
IEREMIA KORIRI
BURETI KORIRI
ATUNATETOKA KAREKE
NABATIKU KORIRI
TEATU KIAKIA FOR KIAKIA TIIKUA
KAMWAMWA URAURA MT MM
RARABUARIKI TAATA FOR ISSUES OF
KUINI KORIRI
BUREIMOA KAIEA MT FOR KAIEA TIOTAAKE
KOIN AKOI
BIO MOTEE FOR ISSUES OF MOOTE TIOTAAKE
MIKAERE ARE FOR ISSUES OF ARE TIOTAAKE
TAOATU BINAUEA MT
Respondents

Before: Tompkins JA
Fisher JA
Williams JA

Counsel: Birimaka Tekanene for appellant
Banuera Berina for respondents

Date of Hearing: 13 and 14 August 2010
Date of Judgment: 18 August 2010

JUDGMENT OF THE COURT

Introduction

[1] There is a piece of land on Butaritari known as Kamakoro/1/4. The proceedings and this appeal concerns ownership of the land and whether, in the events that have occurred, any of the respondents are entitled to remain registered as owners of the land or are entitled to compensation for the loss of what they thought was their interest in the land.

The sequence of events

[2] A convenient starting point is the judgment of Davis J in the Family of the Former High Chief of Butaritari v the Old Men of Butaritari delivered on 14 November 1975.

[3] He records the history of the land. In 1953 the lands were registered in the name of the then High Chief. In 1956 half the lands were registered as "Te Uea" or chiefly lands. In 1963 the Resident Commissioner disestablished the High Chieftanship. After further litigation between the persons concerned it was finally determined that the "Te Uea" lands should be vested in the Crown. This conclusion and others were challenged in the High Court before Davis J.

[4] His conclusion, for reasons set out in detail in the judgment, was that the "Uea" land, by virtue of the royal prerogative, reverted to the Crown. He ordered that the necessary rectification in the register be made accordingly.

[5] The issue came before the court on 7 March 2000 in Attorney General v Nei Tianta Koriri LA 4/1992. We need not detail the issues in that appeal. The court found that the register had never been amended to conform with the decision of Davis J. In the meantime there had been several transactions by which titles to the various pieces of land passed from members of the High Chiefly families to others including some of the present respondents. The court concluded that the order of Davis J should be obeyed and the register amended accordingly. On the course to be adopted the court said:

The republic is estopped from denying the rights which have apparently been acquired as the result of its laches. The republic will continue to be estopped until the register is amended. It is our tentative view, subject to argument in other proceedings should they be necessary (and each case will have to be decided on its own merits) that the republic should pay compensation to those who have apparently acquired rights since 1964, because of the failure to amend the register, from the time of amendment

[6] From that judgment the Attorney General appealed to this court. In its judgment of 5 April 2001 this court upheld the judgment of the High Court except to the extent that the respondent was not entitled to compensation assessed as rent unpaid since 1975.

[7] The respondent in that action commenced proceedings to have the compensation due to her assessed. After hearings on 21 November 2006 and 15 January 2007, the court assessed the compensation at $25,000.00.

[8] The present proceedings came before the High Court on 4 March 2010. The plaintiffs asked for answers to the following questions:

1. The Respondent having delayed in exercising its right under the judgment of the High Court in High Court Civil Appeal No. 1 of 1975 and during the 24 odd years between the date of the judgment of the High Court in that appeal and the action taken by the then Chief Registrar on 14th April 2000 to purportedly give effect to the judgment of the High Court given 24 odd years earlier some of the Plaintiffs have registered their names, as next of kin, after their predecessors in title who were registered between the period 1964 and 1975, did the Chief Registrar have the power to amend the lands register in total disregard of the Lands Court's decisions made after 1975?

2. The Respondent having delayed in exercising its right emanating from the judgment of 1975 and the Plaintiffs, throughout the time and even up to now have dealt with the lands as their own and acted to their detriment in the mistaken knowledge that the lands were theirs, is not the Republic estopped by the principle of certainty of title and by its conduct, from now asserting ownership over the lands?

3. Should the answer to question 2 be in the negative are the Plaintiffs entitled or not to claim compensation from the Government for the land taxes and the improvements they have carried out on the lands including the planting of coconut trees, the construction of houses, the digging of pits and for any other improvements that they may have carried out on the land?

[9] After referring to its judgment in 2001, the court held:

"We decided that compensation should be paid . . . but added 'each case will have to be decided on its own merits'. The present claim should be decided on its own merits. It would be hard indeed if, after occupying and working their lands – as is deposed in their various affidavits – believing that they had indefeasible title, the plaintiffs would suddenly find themselves and their considerable families with out title and subject to eviction. The merits require that the titles of those who occupied their lands in good faith without notice and for valuable consideration should be recognised rather than the title of the republic."

[10] The court, having indicated its view that the answer to the first question should be "No" and to the second question "Yes", adjourned the hearing to consider what further orders should be made.

[11] Having heard further argument, the court, on 17 March 2010, ordered that those persons who have become entitled to be registered as owners of land on Butaritari between 1975 and 2000 are to apply to the Chief Registrar within three months. Any party aggrieved by the decision of the Chief Registrar may appeal within a month.

The appeal and cross appeal

[12] The appellant's notice of appeal set out several grounds. The grounds that became significant in the course of argument were that the Chief Justice erred in finding that the title of the appellant was not indefeasible pursuant to s 4 of the Native Lands Ordinance and in granting the Chief Registrar an order that allows him to register as landowners those who had been registered as such between 1975 and 2000.

[13] In the course of the hearing, the respondents applied for leave to file a cross appeal. The appellant not objecting, we gave leave. The cross appeal was on the ground that the Chief Justice erred in making the order that he did in that the only way to defeat the titles that had been registered on the lands between 1975 and 2000 is by way of an appeal as set out in s 4 of the Ordinance or by an application for a writ of certiorari.

Submissions

[14] In the course of submissions counsel for the appellant advised from the bar that the Chief Registrar had not sought to register the Republic as owner of any of the lands within the former "Uea" land if the present owner had purchased his or her land for value. Thus the only land affected was land held by descendants of the owners at 1975 who were still the owners or who had acquired their ownership by succession. However counsel later made it clear that the title of all individuals holding or gaining title were now at issue, however acquired.

The appellant

[15] Mr Tekanene originally submitted for the appellant:

• [a] That as s 4 of the Native Land Ordinance provides that title was indefeasible, the appellant acquired an indefeasible title when, in 2000, the Registrar amended the register to show the appellant as the owner of the land.
  
• [b] Any registration done after 1975 is subject to the 1975 decision that declared the appellant to be the owner of the land.
  
• [c] That title was confirmed by the decision of the High Court in 2000, affirmed by this court in its decision in 2001.
  
• [d] The appellant accepted that the respondents have the right to claim compensation for any losses suffered as a consequence of the delay by the Registrar in rectifying the title between 1975 and 2000.
  
• [e] But any claim by the descendants of owners between 1975 and 2000 to be registered as owners of the land is defeated by the indefeasible title obtained by the appellant when the appellant's interest in the land was registered in 2000.
  
• [f] It follows that the Chief Justice was in error when he directed the Chief Registrar to allow persons to apply to be registered as owners in his decision of 17 March 2010.
  

[16] At a resumed hearing before us Mr Tekanene amended his submissions to argue that from 1975 the land became state land, that from that point it no longer qualified as native land capable of registration in the Native Lands Register, and that indefeasibility under the Native Lands Ordinance therefore had no application.

[17] Mr Tekanene went on to concede that in principle estoppel would make the Republic legally responsible for steps taken by an individual in reliance on the state of the Native Lands Register after 1975, that he did not wish to challenge the approach to estoppels taken by this court in Attorney General v Nei Tianta Koriri (5 April 2001) Land Appeal No 4 of 2000, and that in principle the remedial discretion for estoppel was sufficiently broad to include a monetary remedy or an award of all or part of the property in dispute.

The respondent

[18] Mr Berina submitted for the respondents:

• [a] The titles obtained after the 1975 decision are indefeasible in accordance with s 4 of the Native Land Ordinance. Thus the purported registration of the appellant as owner of the land in 2000 can have no effect.
  
• [b] The indefeasible title of the owners can only be challenged either by an appeal against the order of the Magistrates Court registering their interest or by an order for certiorari quashing that order.
  
• [c] The Chief Justice was correct to order that persons claiming to be entitled to ownership should apply to the Chief Registrar to determine their claim with a right of appeal against that determination. This was consistent with the judgment in 2001 that each case will have to be decided on its own facts.
  

Changes in the legal status of the land

[20] Before proceeding further we would summarise the history of the land from a legal perspective as follows:

1. The Native Lands Register created under s 64 of the Magistrates' Court Ordinance was and is the sole record of legal title to native land. Interests in native land derived from succession, purchase, or court order, remain mere equitable interests unless and until entered on that Register.
   
2. By 1963 the land now in question was entered in the Register as "Te Uea" which for present purposes meant that the High Chief of Butaritari and the members of his family were the registered proprietors, albeit holding the land for the benefit of the community as a whole.
   

100. When the High Chieftanship was disestablished in 1963 the land vested in the Crown by default. From that point on the Crown had the equitable interest in the land. Although the High Chief and his family members were still shown on the Native Lands Register, they continued as mere trustees for the Crown. They no longer held any equitable interest in the land.
     

4. From 1963 the land in question ceased to be native land. Pursuant to s 2 of the Native Lands Ordinance "native land" means land owned by a native or natives. The definition of "native" is incompatible with ownership by the Crown or the Republic. Therefore the appearance of native land on the Native Land Register after 1963 was in fact illusory. There was no longer any native land to which the Native Lands Ordinance could attach.
   
5. The 1975 decision of Davis J merely recognised the situation created in 1963. Davis J ordered that the Register be rectified so that it would no longer show the High Chief and his family members as holders of the legal title to the land.
   
6. The Crown, later the Republic, failed to rectify the Register as directed. Consequently the High Chief and his family members continued to be shown on the Register as if they were owners even though the land had in fact passed to the Crown.
   
7. Over the next 25 years further individuals and their families purported to derive interests in the land by way of succession or purchase from the High Chief and his family members. In fact the High Chief and his family members lacked any equitable interest in the land capable of being alienated to others. In ignorance of the 1975 decision of Davis J, the Magistrates' Court directed registration of new interests which it wrongly understood had been acquired by successors and purchasers. The purported new interests were duly entered in the Register.
   
8. A number of people then took steps in reliance upon the false assumption that the High Chief and his family members, and their successors in title, were absolute owners of the land. Improvements were carried out. Purchase prices were paid. Taxes were paid.
   
9. In 2000 the High Court ordered that the Register be rectified to remove the individuals still recorded as owners. Pursuant to that decision the Register was duly rectified. The legal title of those already recorded on the Register as owners was extinguished.
   

[21] With that background the questions to be answered are (i) whether the respondents can now rely upon indefeasibility of title under s 4 of the Native Land Ordinance, and (ii) whether in principle the respondents have a remedy in estoppel and if so how any estoppel remedy is to be implemented. We now consider each in turn.

Indefeasibility under s 4 of the Native Land Ordinance

[22] Section 4(2) of the Native Land Ordinance provides:

When the court has, under the powers conferred upon it by section 64(1)(a) of the Magistrates' Court Ordinance, approved the transfer of any native land as a result of causes arising subsequent to the proceedings of the Commission on the island concerned, and such transfer has not been varied on appeal, the title thus obtained as evidenced by the necessary rectification of the court register recording the new title to the land, in the register of native lands shall, subject to section 8(2) of the Land Registration (Tarawa and Tabiteuea) Ordinance 1969, be indefeasible.

[23] Mr Berina submitted that this subsection protected the legal title gained by all or some of his clients between 1975 and 2000.

[24] Indefeasibility of title under land registration systems has never been absolute. Under each land registration system it is necessary to determine the qualifications to indefeasibility. In this decision we do not purport to determine the full scope of qualifications to indefeasibility under s 4 of the Native Lands Ordinance of Kiribati. We have not heard full argument on that topic. However if mere entry on the Register conferred full and absolute indefeasibility, this alone would be fatal to the respondents' case given that the Republic is currently shown on the Native Lands Register as the registered proprietor. Clearly statutory indefeasibility is subject to implied qualifications.

[25] In our view indefeasibility could not prevent a court from examining the circumstances in which the current registered proprietor came to be registered. We say nothing in this judgment as to the position of subsequent purchasers. However if the transaction, dealing, court order, or administrative act, that gave rise to the current registration is the very one that is under challenge, the Court must be able to examine its validity. It cannot be the case that the title of persons purporting to acquire land by invalid means is irreversible once they achieve registration.

[26] Mr Berina was therefore right to acknowledge at least two qualifications to indefeasibility, even though not spelled out in s 4. He accepted that legal title could be defeated by way of appeal or certiorari. We agree. Furthermore appeal or certiorari are merely the procedural vehicles by which legal title is changed. It is the substantive grounds upon which legal title will be changed that matter.

[27] It is clear law that if registration had been obtained by means of a Magistrates' Court decision that was invalid due to lack of jurisdiction or denial of natural justice, the High Court can quash the Magistrates' Court decision and make consequential orders for rectification of the Register. Indefeasibility under s 4 is no obstacle to that course, at least if the current registered proprietor is the one who had acquired title by means of the impugned decision. It is unnecessary to comment upon the position of subsequent purchasers in this judgment.

[28] In the present case at least those Magistrates' Court decisions made after 1975 conferring new interests on descendants of the High Chief and his family were made without jurisdiction. There were three reasons for this:

10. From 1963 the equitable interest in the land lay with the Crown, and later the Republic, even though that interest had not been perfected by registration.
    
11. From 1963 the land in question was no longer subject to s 4 of the Native Lands Ordinance because it no longer constituted Native Land.
    

50. The Magistrates' Court decisions conflicted with a binding decision of the High Court.
    

[29] Accordingly when the High Court directed that the register be rectified in 2000, it was both implementing the 1975 decision of Davis J and, by necessary implication, quashing the contrary decisions of the Magistrates' Court and the administrative steps taken to implement those decisions in the meantime. It might have been clearer if the Court had expressly quashed the intervening Magistrates' Court decisions but that was a necessary consequence of the Court's direction to rectify. It follows that the 2000 rectification to substitute the Republic for the existing registered proprietors was valid.

[30] Our conclusion is that indefeasibility does not assist the respondents.

Estoppel

[31] The principles applicable to equitable estoppel are now well established in common law jurisdictions generally. Equitable estoppel confers on the Court the jurisdiction to grant a remedy to a claimant who has acted in reliance upon the defendant's apparent assurance or representation in circumstances where it would be unconscionable to allow the defendant to resile from the understanding that resulted. The assurance or representation may be express or implied and may be inferred from mere conduct. There is a broad discretion as to the nature and extent of the remedy. It may take the form of money or an award of all or part of the property in dispute: see, for example, Gillies v Keogh [1989] NZCA 168; [1989] 2 NZLR 327 (CA); Commonwealth v Verwayen (1990) 95 ALR 321 (HC of A).

[32] It is unnecessary for us to analyse the way in which estoppel principles apply to the circumstances surrounding the failure to rectify the register before 2000 in the present case. That exercise has already been carried out in Attorney General v Nei Tianta Koriri supra. The conclusion there reached was that in principle estoppel is available as a basis for individuals who had acted in reliance upon the apparent state of the title to make a claim.

[33] We agree with the High Court that in the present case it is likely that all or some of the respondents will have acted to their detriment in reliance upon the state of the Register. Improvements they carried out to the properties between 1975 and 2000 is the most likely source of an estoppel but we would not rule out other steps taken in reliance upon the state of the Register.

[34] As previously noted, the choice and extent of a remedy for equitable estoppel is discretionary. The most important considerations are likely to be the nature of the representation made to the claimant, the extent of the detriment suffered by the claimant in reliance upon that representation, and the value of any improvements to the property made in reliance upon the representation. The process could never be an exact one. However we would expect there to be at least some broad correspondence between the value of the improvements effected, or loss suffered, by the claimant, on the one hand, and the value of the remedy provided by the Court, on the other.

[35] Clearly that exercise could only be attempted in relation to any given claimant by separately considering the circumstances of that claimant. Where we would differ from the High Court is that on the available evidence we do not think it possible to say whether any of the claimants is entitled to a remedy and, if so, what value the remedy should have measured in monetary terms or the form it should take. Nor do we think that the appropriate jurisdiction to determine the individual claims is an application to the Chief Registrar. The current proceedings began in the High Court. It is now for the High Court to consider the case for each claimant to determine (i) whether the Republic is liable to that claimant in estoppel, (ii) what overall value that claimant deserves to receive and (iii) whether the remedy ought to take the form of money, property or some other form.

Result

[36] Both the appeal and the cross appeal are allowed. The orders of 17 March 2010 to rectify the Register and have individual claims determined by the Chief Registrar are quashed.

[37] The respondents will now need to file a statement of claim in the High Court particularising the basis upon which each respondent advances his or her claim to an equitable remedy in estoppel and the form and value of the remedy sought. It will be for the High Court to give directions as to the procedure to be followed thereafter.

[38] There being a measure of success for both sides there will be no order for costs.

Tompkins JA
Fisher JA
Williams JA