Tabeata v Bonto [2015] KICA 8; Land Appeal 03 of 2015 (19 August 2015)

IN THE KIRIBATI COURT OF APPEAL
LAND JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Land Appeal No. 3 of 2015

BETWEEN

ATANTEATU TABEATA
APPELLANT

AND

ERENA BONTO
RESPONDENT

Before: Paterson JA
Blanchard JA
Handley JA

Counsel: Taoing Taoaba for appellant
Teetua Tewera for respondent

Date of Hearing: 14 August 2015
Date of Judgment: 19 August 2015

JUDGMENT OF THE COURT

INTRODUCTION

1. This is an appeal from a decision of the High Court sitting in its Land Jurisdiction on an appeal from the Magistrates' Court. The High Court panel comprised the Chief Justice Sir John Muria and two magistrates.
   
2. The Magistrates' Court in Marakei in case CN 54/14 was asked to explain the phrase "house plot at Ukiangang 3/u" which appeared in a decision of the Lands Court given on 6 August 1993. That decision reads:
   

"Judgment

This Court confirms the following allocation: Tabeata's house plot at Ukiangang on the eastern side of the road, Kabureita at the western side of the road, Atanibwebwe at Bakatere and Ataniborau at Tebangaki. It is evident as well that Atanteatu's registration over Ukiangang on the eastern side of the road is not opposed as well".

3. In case CN 54/14 the Marakei Lands Court, comprising five magistrates was asked to explain the phrase "house plot at Ukiangang" as used in the 1993 decision. At the end of the hearing on 9 May 2014 the Court adjourned the case to 22 May 2014 for judgment. In doing so it noted it would "need to thoroughly interpret case minutes ..... especially a case minute for 3/93".
   
4. The judgment given on 22 May 2014 reads:
   

"Judgment

This Court affirms that CN 3/93 is for house plots only at the eastern side of the road at Ukiangang 3/u, house plot only but not the whole land. For proving this fact, please refer to Book 4 page 27 to 28 Land Register for Tamaiti Boborau, grandparent of both the defendant and the plaintiff".

THE HIGH COURT JUDGMENT

5. The appellant's submission in the High Court was that the Land Court in CN 3/93 decided that the appellant was to be registered over all that part of Ukiangang 3/u which was on the eastern side of the road. It was the respondent's position that only a portion of the land on the eastern side of the road was allocated to the appellant and that the allocation was for a house plot.
   
6. The members of the High Court considered the I-Kiribati version of the decision in CN 3/93 and concluded that the English translation of the last sentence of the decision in CN 3/93 is not quite reflective of the I-Kiribati version. In the Court's view a more accurate translation of the decision in CN 3/93 is:
   

"The following allocation is hereby confirmed. Tabeata at Ukiangang at the eastern side of the road, Kabureneita at the western side of the road, Atanibwebwe at Bakatere and Aaniborau at Tebangaki. It is evident that the registration of Atanteatu's house plot at Ukiangang on the eastern side of the road is not contested".

7. On the basis of this translation the High Court determined that the appellant's interest in Ukiangang 3/u was not in all the land on the eastern side of the road but only over a plot where she could build her house and settle. Thus the Court was satisfied that the decision in CN 54/14 was correct and dismissed the appeal.
   
8. Another ground of appeal in the High Court was a challenge to the respondent's standing. This challenge was unsuccessful and was not pursued in this Court.
   

APPELLANT'S CASE

9. There are alternative grounds of appeal in the notice of appeal but in substance they are very similar. The two grounds are:
   
   • (a) The learned Chief Justice erred in law in dismissing the appeal without considering the whole minute of 3/93 that gave rise to the decision;
     

In the alternative;

(b) The learned Chief Justice erred in law in failing to consider the whole minute of 3/93 in order to understand the real meaning of the judgment.

10. By way of background, case CN 3/93 involved the family agreeing on the distribution of the estate and effects of Tamaiti Boborau, the grandfather of both the appellant and respondent, who had died intestate. The hearing was adjourned more than once to allow the family to unanimously agree on the distribution.
    
11. The appellant relies upon a statement by Kabureita, the respondent's brother, where he is recorded as saying:
    

"In my understanding of the Court's explanation I agree that Tabeata would own the whole eastern side of the road and Atanibwebwe is still at Bakatere and this woman Ataniborau will still be at Tebangaki".

It is submitted that the other family members agreed with this statement.

12. It is further submitted that the context of the Court minute in 3/93 does not support the interpretation of the decision which is contended for by the respondent.
    
13. The submission in respect of the decision of the Magistrates in CN 54/14 is that they failed to consider the minute of the hearing in CN 3/93 in its totality and therefore gave an incorrect interpretation of the decision in CN 3/93.
    
14. The same complaint is then directed against the High Court. In summary it is submitted that the High Court failed to interpret the decision in CN 3/93 against the statements made by family members as recorded in the minute, and this led to it erring in the interpretation it came to.
    
15. A further submission made on behalf of the appellant is that some other Magistrates' Court decisions since 1993 do not support the decisions of the High Court.
    

DISCUSSION

16. There are three matters raised by counsel which need to be mentioned for the sake of completeness. First, the respondent submitted that the appellant was present in 1993 and if the decision was incorrect she should not have waited for twenty years before attempting to have it interpreted. The Court has not taken this submission into account in coming to its decision. While the delay is surprising there may have been good reasons for it which werenot put in evidence.
    
17. Ms Taoaba sought to obtain assistance from other Magistrates' Court cases. It is noted that these cases are of little assistance, were not binding on the Magistrates' Court in CN 54/14 and have no precedent value in the High Court.
    
18. The appellant placed some reliance on the family tree. It is not possible to draw any conclusions from this for three reasons. First, some of the "distributions" went to some of the children of the deceased and some to grandchildren. Some children and some grandchildren did not benefit. Secondly, there is no evidence before the Court as to the size or value of properties "distributed". Thirdly, it is not apparent why some children and grandchildren benefited and some did not. One inference which can be drawn is that these factors favour an interpretation that the decision in CN 3/93 was referring to house plots. However, it has not been necessary for the Court to draw this inference incoming to its decision.
    
19. The decision in CN 3/93 has now been considered by two Courts. The first Court comprised five I-Kiribati speaking magistrates. Then the High Court comprised two such magistrates. Thus seven out of the eight judicial officers who have interpreted the 1993 decision are familiar with the I-Kiribati language.
    
20. For the appellant to succeed it is necessary for her to persuade this Court that the seven magistrates erred. She seeks to do this by submitting that when the 1993 minute is considered as a whole the interpretation given by these two Courts is not correct.
    
21. There is no indication that either the Magistrates' Court or the High Court did not consider the minuteinits entirety. The appellant's counsel's written submissions to the High Court did not suggest that the Magistrates in 2014 had not looked at the minute "as a whole". This Court does not accept that a judicial officer with the Chief Justice's experience would interpret the decision without considering the complete minute of the 1993 case.
    
22. When the English version of the minute is considered this Court cannot come to the conclusion that the decision appealed from was incorrect. There are what appear to be inconsistent statements in it. It appears from the narrative that members of the family were not in total agreement. For example, one member said, "I don't agree with that for he has a house plot, that portion will be left as N. Ataniborau's place". There is a reference to "a space at the eastern side of Babetara's house" and another family member said "I do believe what Atanteatu said for she had registered over her current house plot".
    
23. This Court acknowledges the difficulty of interpreting a decision given in I-Kiribati language from an English translation of it. It is however comforted by the fact that seven experienced Kiribati magistrates have agreed on an interpretation of the decision in CN 3/93.
    
24. A relevant principle is that an appellate court should normally decline to review the evidence for a third time if there are concurrent judgments of two courts on a pure question of fact. See the Privy Council decision of Devin v Roy [1946] AC 508. As that case noted the practice is not a cast iron one but the practice will only be departed from in unusual cases such as where there has been a miscarriage of justice or some violation of a principle of law or procedure.
    
25. This appeal can only be brought on a question of law and the correct interpretation of the 1993 decision is a question of law. However, in determining that question similar factual findings have been made in two concurrent courts on the meanings of the text in the I-Kiribati language.
    
26. For the reasons given above, it is the view of this Court that the appellant has not established that either the Magistrates' Court in 2014 or the High Court erred in coming to their decisions. Further, and independently there is no reason for this Court to review for a third time the concurrent factual findings of the Courts below.
    

DECISION

27. The appeal is dismissed.
    
28. The respondent is entitled to costs of $500 together with disbursements to be fixed by the Registrar if the parties are unable to agree.
    

____________________________
Paterson JA

____________________________
Blanchard JA

________________________
Handley JA