Takeieta v Onorio [2016] KICA 12; Land Appeal 2 of 2016 (17 August 2016)

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

Land Appeal No. 2 of 2016

BETWEEN

ARIANE TAKEIETA
APPELLANT

AND

AHLING ONORIO
RESPONDENT

Before:
Blanchard JA
Handley JA
Hansen JA

Counsel: Banuera Berina for appellant
Taoing Taoaba for respondent

Date of Hearing: 12 August 2016
Date of Judgment: 17 August 2016

JUDGMENT OF THE COURT

[1] This appeal from the decision of the High Court is concerned directly with the boundary between the appellant’s land Banounou 640i to the west on the Betio side and Banounou 640e to the east on the Temaiku side. It is also concerned indirectly with the western boundary of the appellant’s land which forms the eastern boundary of Teai 641a on the Betio side.

[2] The decision in Case No. 40/97 of the Land Court constituted by a Single Magistrate fixed the western boundary of the appellant’s land in a case brought against his predecessor in title by his neighbours on the western side. His neighbour on the eastern side was not a party to those proceedings and did not appear.

[3] In the 1997 case the magistrate fixed the western boundary of the land now owned by the appellant at 132 feet from what was then thought to be the eastern boundary of that land. However, as we have said, the present respondents were not parties to that decision and prima facie were not bound by that magistrate’s finding about the location of this boundary. However the appellant claimed in the Courts below and continued to claim in this Court that CN 40/97 fixed the eastern as well as the western boundary of her land because the latter was measured from what was considered to be the former.

[4] The appellant also relies on the decision of Millhouse CJ in case HCCC 110 of 2010 in which certiorari was granted to quash the decision of a Single Magistrate in CN 120/08. That Magistrate had purported to fix the eastern boundary of the appellant’s land in proceedings in which the appellant was not named as a party and of which she knew nothing at the time. The appellant later brought certiorari proceedings in the High Court in which the respondent was joined as a party and the decision of Millhouse CJ is binding on both parties to this appeal.

[5] The then Chief Justice referred to the proceedings in CN 120/08, which had denied the present appellant natural justice or procedural fairness, and continued:

“The new determination was contrary to the determination of the boundary made in CN 40/97. Apparently the Single Magistrate did not know about it or ignored it. [Counsel then appearing for the now respondent] concedes that the 1997 decision must prevail. The application is granted and the decision on CN 120/08 is quashed”.

[6] In the present case the Land Court ruled that the now respondent was not bound by the decision in CN 40/97. The decision of the Chief Justice in the certiorari proceedings HCCC 110/10 was referred to but the Magistrate held that it did not require the Court to find that it bound the now respondent and compelled a decision in favour of the now appellant. The appellant appealed to the High Court which affirmed the decision of the Land Court for substantially the same reasons. The appellant then appealed to this Court.

[7] In our judgment the Courts below were correct and the appeal must be dismissed. The Land Court was not bound to fix the common boundary between the land of the appellant and the land of the respondent in accordance with the decision in CN 40/97. The respondent was not a party to that decision, was not notified of those proceedings and took no part in them. The operative decision in CN 40/97, the thing actually decided (the res judicata), was the location of the appellant’s western boundary. The decision did not purport to fix the eastern boundary although the Court’s reasons were based on its location assumed or found.

[8] The relevant principles were explained by Dixon J in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 533 who said that issue estoppel only applied to findings which were fundamental to the prior decision:

“The difficulty .... is to distinguish the matters fundamental or cardinal to the prior decision .... or necessarily involved in it as its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment ......”

[9] The Land Court could have arrived at the location of the western boundary in more than one way. Measuring it at 132 feet from the eastern boundary was not the only way this could have been done. None of the various ways of fixing that boundary were legally indispensable for the conclusion.

[10] In any event nothing the Land Court decided in CN 40/97 could bind the respondent. It was not necessary for the respondent to bring certiorari proceedings in the High Court to have the decision in CN 40/97 quashed because that decision did not fix or purport to fix the western boundary of the respondent’s land. The decisions to that effect of the High Court and the Land Court were correct.

[11] The position is not quite so clear in respect of the decision of the High Court in HCCC 110/10. The now Chief Justice and the magistrates disposed of Mr Berina’s argument based on this decision by saying that it:

“affirmed the boundary fixed in CN 40/97, the parties to which were different and the land subject matter were also different”.

[12] The operative decision of the High Court in HCCC 110/10 was to quash the decision of the Land Court in CN 120/08. That decision was supported by the following findings by the then Chief Justice:

“The applicant .... was not notified of the determination and took no part in it. She learned only later .....”

[13] As appears from the earlier passage in his reasons quoted at [5] above, the then Chief Justice went further and purported to decide that the relevant boundary had been fixed by CN 40/97. We held above that it is not legally correct but res judicata in general and issue estoppel in particular apply to prior decisions whether they are right or wrong: Mulkerrins v Pricewaterhouse Coopers [2003] UKHL 41; [2003] 1 WLR 1937, 1941 HL;
Watt v Ahsan [2007] UKHL 51; [2008] 1 AC 696,708.

[14] However not everything in the reasons of the Court for an earlier decision attracts an issue estoppel. The estoppel only applies to those issues which support the actual operative decision of the Court. Judicial obiter dicta and subsidiary findings do not support an issue estoppel. Dixon J explained the principle in Blair v Curran at 532-3:

“Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded ... matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation”.

[15] The reasons of Millhouse CJ do not identify the legal basis for his decision. It could have been the denial of procedural fairness to the now appellant, it could have been the binding force of CN 40/97, or it could have been both. Certiorari was available to quash the decision for want of jurisdiction because of the denial of procedural fairness to the now appellant. However certiorari can also issue to quash a decision for error of law on the face of the record: R v Northumberland Compensation Appeal Tribunal ex parte Shaw [1952] 1 KB 339 CA.

[16] We are prepared to assume, for present purposes, that the reasons of the Land Court in CN 120/08 form part of its record, but those reasons do not refer to the earlier decision in CN 40/97 and do not purport to treat it as legally irrelevant. There was therefore no error of law on the face of the record.

[17] Accordingly the operative decision in HCCC 110/10, which was fully supported by the reasons of the then Chief Justice, can only have been lack of jurisdiction due to the denial of procedural fairness by the Land Court. The observations of the then Chief Justice about the effect of
CN 40/97 do not support his operative decision and were judicial obiter dicta which cannot support an issue estoppel.

[18] The appeal is dismissed with costs.

____________________________

Blanchard JA

____________________________

Handley JA

____________________________

Hansen JA