Taibi v Latasi [2021] KICA 7; Civil Appeal 4 of 2019 (1 December 2021)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO

REPUBLIC OF KIRIBATI
Civil Appeal No. 4 of 2019

BETWEEN NEI REE TAIBI APPELLANT

AND LAMA LATASI RESPONDENT

Hearing: 22 November 2021

Judgment: December 2021

Before: Blanchard JA Hansen JA Heath JA
Counsel: Ms T Taoaba for Appellant
Ms K Kabure for Respondent

JUDGMENT OF THE COURT

The issue

[1] This case concerns whether a house plot (No. 20) has been validly allocated by the Betio Area Committee to the appellant, Nei Taibi, and her family on the land known as Temanoku 823. In the High Court, in a judgrnent delivered on 20 September 2019, Muria CJ held that it had not and made declarations that the Committee's allocation of house plot No. 20 was null and void and that there is no house plot No. 20 on Temanoku. From that decision the appellant brings this appeal. The High Court also declared that the respondent, Lama Latasi, does have a house plot (No. 12) on the land.

[2] The outcome of the case turns on whether the appellant family are shown to have retained any interest in Temanoku after certain transactions with the Roman Catholic church in 1969.

[3] We begin by summarising the High Court's factual findings before considering whether they have been shown by the appellant to be flawed.

The High Court judgment

[4] The whole of Temanoku 823 was once owned by Nei Rounamakin. In Case No. 60/50 the Magistrates' Court approved a division into Temanoku 823w/1 (w/ 1) which was vested in Nei Rounamakin's son, Tenoa, and Temanoku 823w/2 (w/2) which was vested in Nei Rounamakin's daughter, Etita. Tenoa was the grandfather of the appellant, Nei Taibi, and Etita was the grandmother of Lama Latasi. So this is a dispute between two branches of the same family.

[5] On 13 March 1957, Tenoa leased the whole of w/ 1 to the Government for a 99 year term commencing on 1 January 1954. In 1969, Nei Taibi's mother, who must have inherited w/ 1 in the meantime, allowed the Catholic Church to construct buildings on w/ 1 (approved in Case 52/69) and then gifted w/ 1 to Father Martin on behalf of the Church (approved in Case 55/69). The parties are at odds over whether the house lot was excluded from that gift. Father Martin subsequently transferred the land he had acquired to the Church (Case 121/69).

[6] The High Court nevertheless found that since that time Nei Taibi's family have continued to live on w/ 1 "without any hindrance from the Government or the Church". Through Nei Taibi they claim that they have a right of occupation of house plot No. 20 said to have been given to them by a house plot permit on 24 December 1955.

[7] The High Court recorded that in Case 212/85 the Church "exchanged" its land (w/ 1 ) with the land of Lama Latasi's "grandmother" [actually her mother] (w/2) but that the latter still retained her own house plot on w/2. The Court also found that Nei Taibi's family were no longer entitled to remain on w/ 1. Muria CJ said that Lama Latasi "who has not sold her house plot 823 w/2 to anybody, now has house plot 823w/1 as well, as a result of the exchange with the Catholic Church". The Court said that the family represented by Nei Taibi had become tenants-at-will of the Church in 1969, which was the situation when Lama Latasi's branch of the family became the owner of w/ 1. So both house plots were registered to Lama Latasi.

[8] Muria CJ said that on 6 September 1997, the Area Committee decided that the family of Nei Taibi needed to apply for a new house plot but he said that apparently no application was ever made, as the Magistrates' Court had noted in case Bailan 104/16. (The judgment and indeed the actual decision itself refers to 1041/16 but ail other documents are numbered 104/16 which we will use).

[9] On 15 March 201 6, however, the Area Committee had proceeded to designate a house plot No. 20 on Temanoku and divided it in half between the two branches of the family. The High Court concluded that the Area Committee was wrong to do this in the light of the history and that the only house plot on 823w/1 and 823w/2 is house plot No. 12 which belongs to Lama Latasi alone. The Court said that it was not surprising that the Magistrate's Court in a challenge to that decision had found in Case Bailan 104/16 that house plot No. 20, as shown on the map before that Court, was "located far away from house plot No. 12". The High Court said that the area Committee could not force Lama Latasi to accept house plot No. 20 on her land. Section 33 of the Local Government Act 1984 was not authority for the Area Committee to create a house plot "and have it inserted onto a person's land without following the proper procedure of ascertaining why there was one house plot No. 20 in the names of two people". Section 33 could not be used to resurrect "what has long been lost".

[10] The Court therefore made the declarations already described.

The difficulties in this appeal

[11] The present case began in the High Court since the Magistrates' Court in Bailan 104/16, though expressing some opinions, had in the end made no decision about the house plots because it believed that it did not have jurisdiction to order the appellant and her family to leave the land. So this appeal is not restricted to points of law, and in fact the decision will depend very much on what this Court makes of the complicated factual history.

[12] We have carefully examined the judgment below and all the material placed before us, some of which is confusing to say the least. There are five particular difficulties. The first is in relating the old plans from the 1950s and 1960s to the current position on the ground as shown in a plan used by the Area Committee in 2016 and to the Betio Village Plan. The second difficulty is in working out the locations of the house plots and their numbering. When plots were allocated by permit in the 1950s no indication was given of exactly where they were situated. The third is that the Area Committee's record keeping has left a great deal to be desired. Its master list of house plots and the land on which they are located does not agree with the Village Plan. The fourth difficulty is the cryptic nature of many of the records of the decisions made over the years by the Magistrates' Court. And we must admit to a fifth difficulty for the members of this Court in our lack of familiarity with the Betio Village and our need to depend upon translations of the decisions from the Area Committee and the Magistrates' Court.

A review of the events relating to the house plots

[13] We propose to set out what we have found in the historical record of documentation and decisions before summarising counsel's submissions relating to them.

[14] There is no doubt that Nei Rounamakin owned land known as Temanoku 823 and that in 1950 that land was divided in half between a son, Tenoa, who took W/I and a daughter, Etita, who took w/2. In evidence are separate permits dated 24 December 1955 signed for Te Unimane giving each of them and their families permission to "construct, look after and own a house plot at Betio Village (20) over the land Temanoku". A term of the permit in each case was that it "could not be given to another person". The heading of each permit has a space for the year to which it is to relate but no year is filled in.

[15] There was also a third permit issued by the same authority on 3 February 1959 to Etita and family for "settlement number 12 on the village of Betio". Unlike the other two permits it does not state what land this house plot is on and it is expressed to be "temporary for house plot for 1959".

[16] Although these permits are expressed in annual terms it can be accepted, given that they expressly confer ownership, that they constituted a permanent permission to occupy a house plot subject to observance of the conditions attaching to them. The annual fee stipulated is nominal and there seems to have been no need for steps to be taken to renew the permits in subsequent years. They have always been treated as a form of ownership.

[17] In 1957 the whole of w/ 1 was leased by Tenoa to the Government for a 99 year term running from 1 January 1954. That lease must have been intended to be subject to the annual permit granted after its commencement date but before it was executed. A lease for the same term but commencing from 1 January 1956 was granted by Etita in the same year in respect of the whole of w/2.

[18] We pause at this point to refer to the affidavit evidence of the Secretary of the Area Committee of which the Chief Justice made no mention. The Secretary said that the Area Committee is established by the Betio Town Council under s 33 of the Local Government Act and is mandated by the Council to manage and regulate the allocation of house plots over the area known as "te mwaake", all of which is leased from its owners by the Government. We note that such delegation by a Council of its functions is provided for in ss 33 and 45 and that Schedule 2(b) of the Act authorises the preparation and undertaking and control of schemes for improved housing layouts and settlements, this being a delegatable power. That function has been facilitated by the maintenance by the Committee of a register of house plots.

[19] The Secretary said that the allocation of plots was initiated in the 1950s with the signing of agreements between the then Colonial Government and the individuals who were house plot holders. According to the Secretary these showed the serial number of their plots and the name of the land on which it was situated. We take this to be a reference to the permits though they are signed only on behalf of te Unmane. The Secretary exhibited the Betio House Plots List and a plan showing the location of plots but he said that the Committee had realised that there were inconsistencies between the list and the plan. The Committee had resolved that the list should prevail. Perusal of the list shows that each of Tenoa and Etita had a plot 20 on Temanoku (which is consistent with the permits issued in 1955). There is a plot 12 in a name that seems to be unrelated to the parties. The Secretary said that plot 12 is not on Temanoku. He explained the Committee's 2016 decision: as both parties had plot 20 it was fair to divide it between them.

[20] The next event was on 7 April 1969 (Case 52/69). The Magistrates' Court minute, as translated, refers to "Bequeathing of land to the Priest and to the catholic" and records that Nei Takai (the appellant's mother) went to the Court "to give consent to Catholic Religion do construction on her land Temanoku W3B thus all the properties on the land is free to the Catholic the areas in which the Government has not yet used" (sic). (The "B" is apparently an indication of the soil quality).

[21] What that appears to be saying is that Nei Takai is allowing the church the use of the land that the Government had not already used. But the prior issue of the house plot permits, through te Unimane, contemplating the construction of a house and ownership is prima facie a "use" by the Government, through its delegate.

[22] Then in the Minute of Case 55/69, there is a decision to register Father Martin "on the land 823WB". This must surely be the same land as is the subject of Case 52/69 with the same reservation of areas already used by the Government. Case 121/69 then records the transfer from Father Martin to the Church. It is the case for the appellant that Nei Takai and her family had their home on the house plot at the time of these transactions and continued to live there. The Chief Justice seems to have accepted this. It might seem unlikely in this situation, even assuming the permit did allow it, that she would have intended to give that part of her land and her family's home to Father Martin or that the Church could have expected to receive it through him.

[23] In Case CN 78/73, after a review of the previous cases, the Court in its judgment said that "Father Martin with the Catholic church is to own Plot w/2 and Nahama Maheu [Lama Latasi's mother] on the plot w/ 1". This might possibly be a reference to the house plots, and certainly that is the way it seems to have been understood by the Magistrate in Bailan 104/16 in 2017, but as the house plot of w/2 was not affected, it would seem more probable that in this context the house plot on w/ 1 was also not involved.

[24] Next, in Case CN 82/85, it is minuted that Nei Naama (another version of Lama Latasi's mother's name) was selling to the Catholic church "823 w/2 at the ocean side that used to be leased by the Government with Betio Village".

[25] Then followed CN 212/85, an exchange between Nei Naama and the Church. This transaction is said by the respondent to have passed ownership of the house plot on w/ 1 to Nei Naama because the Church owned it as a result of the transactions in Case 55/69 and 121/69.

[26] In 1997, according to Lama Latasi, the family of Nei Taibi asked Nei Naama to be allowed to build on the house plot of w/ 1 but were refused; that they then built their house despite being told not to. If that is truly the case, the appellant's family would previously have had no house on Temanoku which seems unlikely. There is a minute of the Area Committee at that time telling Nei Taibi to apply for another house plot. It appears that she did not do so. An eviction attempt by Nei Naama failed because the Magistrate who ordered it did not possess the necessary jurisdiction as he was "no longer a Magistrate".

[27] That state of affairs with Nei Taibi and her family remaining in possession continued until March 2016 when the Area Committee looked into the matter again and made a decision to divide the land in dispute between the two branches oi the family (consistently with the permits for two house lots numbered 20 in 1955). It did this by reference to a plan prepared for it by a surveyor that depicts the two areas with frontages of 18.25m each to the main road next to the classrooms of St Patrick's College, the nearer to the College marked as "Tenoaa House Plot" and the other "Etita House plot". The Committee's minutes refer to "House plot of Etita and Tenoa plot no. 20" which is to be divided into two, half each, as shown in the plan. That would reflect the position as it undoubtedly was until 1969. It is to be observed that an earlier plan (p.88 of the Appeal Booklet) showing w/ 1 and w/2 gives a frontage for w/ 1 of 18m; and the frontage for w/2 on that plan, though it does not have a measurement, appears to be of the same length.

[28] It was this subdivision decision by the Area Committee in 2016 which has led to the present case. It was initially brought in the Magistrates' Court (Bailan 104/16) by Lama Latasi, again seeking the eviction of Nei Taibi and her family. The Magistrate set out the Court's understanding of the history of the property. The Court said that in Case 121/69 Nei Taibi's mother had "sold out the whole land", ie the whole of w/ 1 to Father Martin and that it was clear from Case 121/69 that the defendant family "no longer possessed any power over their land in [w/ 1] when they sold out the whole land to the Catholic".

[29] The Magistrate recorded that the defendant (Nei Taibi) said that the house plot was not included but the minutes of the Area Committee in September 1979 had said that Nei Taibi needed to apply for a new house plot. Reviewing the evidence the Magistrate concluded that its decision (seemingly the decision in 2016) had been made without carefully considering where that house plot would be located. There follows an inconclusive and frankly very puzzling passage about the Committee's need to "comply with its decision" (in 1997) that Nei Taibi must apply for a new house plot. But no guidance is given as to where that house plot should be save that, as the High Court noted, it is stated by the Magistrate that house plot No. 20 is located far away from house plot No. 12 "the distance from no. 12 [which plainly is considered by the Court to be the house plot of Lama Latasi] starts from the exterior compound of the St Patrick College Takoronga side and No. 20 (the Nei Taibi house plot) is from Nonouti Betio Maneaba".

[30] The Magistrate then addressed a separate problem, namely that in the Court's view because of the Government's lease the owner of the house plot had no right to effect an eviction from the land. (We interpolate that this opinion must be doubted). As the land was leased by the Government the Court said that it had no authority to entertain the matter and that the High Court had such authority The application for eviction was accordingly dismissed and the present respondent then proceeded to bring her application before the High Court with the result described above. We have already summarised the High Court's decision in above.

Submissions for appellant

[31] Ms Taoaba submitted that the Chief Justice failed to take into account that the sale by the appellant's grandmother to Father Martin was only of land that had not been allocated as a house plot and the appellant's grandfather had been allocated a house plot on his own land long before the allocation made by the Area Committee in 2016. The Chief Justice had misunderstood the effect of Cases 52/69, 55/69, 121/69 and 78/73. The minute of 52/69 referred to Temanoku 823w, not Temanoku 823w/1 and the land to which it related was the area "not yet used by the Government". The Government had used a portion to allocate a house plot to Tenoa to live on. Nei Taibi's family was not selling Tenoa's house plot since the family was living on it and still does not. The house plots allocated to the respective elders were able to be seen on the map at p.88 of the Appeal Booklet in the area marked as "Betio Village Area" and had frontages to the road of 18m, which compared well with the frontages of 18.25m shown on the Area Committee's map used in 2016. The allocation in 2016 was not made from the respondent's share but was of the area occupied as a residence by the appellant's family.

[32] Ms Taoaba also pointed out that a house plot permit is not transferrable. As to the permit for house plot No. 12, it was specified as a temporary permit and it did not show the location of the land, whereas the two permits for house plot No. 20 said that each was on Temanoku. There was therefore no proper basis for the declarations made by the High Court.

The respondent's submissions

[33] Ms Kabure also took us carefully through the decisions of the Magistrates' Court and the Area Committee, submitting that there had not been an exclusion or reservation of the house plot from the gift to the Church and that it was included in the exchange with the respondent's mother. That was the reason why in 1997 the Area Committee considered that the appellant must apply for a new house plot. Counsel drew attention to a letter of 15 August 1991 from the Chief Lands Officer to the Chief Registrar of the High Court. It said that by cases 55/69 and 121/69, Tenoa had bequeathed his land to Father Martin (actually that was done by Nei Takai) and that as a result of subsequent transactions the respondent's mother, Nei Naama, was the legal landowner of w/ 1. On the Betio Village map house plot No. 12 is shown in the name of Tie Maheu who was Etita's brother and died issueless. It is, Ms Kabure submitted, situated on the respondent's land Temanoku 823w. Therefore, on the whole of the evidence the Chief Justice did not err in granting the declarations.

Our conclusions

[34] We can state our conclusions briefly because they have in large part been foreshadowed in our review of the materials.

[35] It is clear that prior to 1969 there were two house plots numbered 20 on Temanoku, belonging to Nei Taibi's family (on w/ 1) and Lama Latasi's family (on w/2). They were situated in the positions now shown on the plan used by the Area Committee in 2016 and can also be identified as areas within the "Betio Village Area" adjacent to the road to the wharf on the map at p.88 of the Appeal Booklet.

[36] For four reasons we consider it to be most unlikely that Nei Taibi's mother made a gift to Father Martin and the Church of her house plot and that it was lost to the appellant family in 1969 before Nei Naama's exchange of land with the Church. We conclude that it was not part of that exchange. First, a permit was not transferable, at least without the consent of the body which then administered the village housing scheme, and there is no record of such consent. Secondly, the gift was restricted to areas of w/ 1 that the Government had not yet used. But in granting the permit for the house plot authorising the building of a home, the Government had used that part of the land. Thirdly, the family of Nei Taibi had already built on the house plot and had their house there, as the Chief Justice found. It is highly unlikely that Nei Takai would have given away the home where she and her family lived. It is also questionable that the Church would have accepted such a gift if it left the family without a home. And, fourthly, the family continued to live in the house, as the Chief Justice said, without hindrance from the Government or the Church. The challenge to their right to do so appears not to have arisen until the 1990s and to have been successful then because the Area Committee misunderstood what had occurred because of the obscurity of its record keeping and the minutes of the Magistrates' Court's decisions, including the problem of the numbering of the house plots.

[37] We consider, on the other hand, that in 2016 when the Area Committee reconsidered the matter with the benefit of a survey, its decision confirming the appellant's entitlement to house plot No. 20 on Temanoku should not be disturbed.

[38] It can be accepted that Lama Latasi's grandmother, Etita, was in 1959 granted a second permit, at least temporarily, for a house plot No. 12 but in 1959 it would surely not have displaced or duplicated house plot No. 20 on w/ 1 which was already allocated to the appellant's family, nor would it have related to the respondent's family's house plot No. 20, unless the latter was simply renumbered. But there is no trace elsewhere of any such renumbering. The Area Committee's list, which it regards as more accurate than the map of the village, does not show a house plot 12 on Temanoku in the name of the respondent's family. Like the Committee we find the plan difficult to reconcile with anything else in the evidence. Ms Kabure also relied upon the Chief Lands Officer's letter in 1991 but that seems to have related to w/ 1 generally and does not specifically mention house plots.

[39] For these reasons we have concluded that on the totality of the evidence it was not open to the Chief Justice to make the declarations now under appeal and that he should have dismissed the respondent's application.

Orders

[40] Accordingly, we allow the appeal and set aside the declarations made in the High Court. The respondent must pay the appellant's costs in both courts to be taxed if not agreed upon.

Blanchard JA

Hansen JA
Heath JA