Family of Former High Chief of Butaritari v Old Men of Butaritari [1975] KIHC 1; 1979 KILR 124 (14 November 1975)

1979 KirLR 124

HIGH COURT OF THE GILBERT ISLANDS

Civil Appeal No 1 of 1975

THE FAMILY OF THE FORMER HIGH CHIEF OF BUTARITARI
versus
THE OLD MEN OF BUTARITARI

(DAVIS J.)

Bairiki: 14th November 1975

Civil appeal - native custom - appeal from Senior Magistrate - Native Lands Ordinance (Cap 22) section 26(2) - lands of High Chief - "Te Uea" lands - Native Lands Ordinance (Cap 22) section 4 - High Chief disestablished - by agreement certain quarters divided among Chiefly Family - title indefeasible -Lands Courts Appeals Panel held that vacant ‘Te Uea’ lands should go to Island Council - Senior Magistrate held that such land should go to the Crown - customary law not applicable - English common law applied.

The High Chief of Butaritari had rights over almost all of the quarters on Butaritari and Makin up to 1892 when the Protectorate was established and up to 1922 when, by an agreement between the then High Chief and the Old Men of Butaritari and Makin the rights of the High Chief to receive tribute of food and produce and to appoint and remove Toka were abolished in return for a quarter - share of the majority of the lands on Butaritari. These lands were then registered in the personal name of the then High Chief. In 1953 these lands were registered in, the name of the then High Chief with his brothers and sisters and in 1956 by agreement with the then High Chief and his brothers and sisters approximately half the area of all the quarters were registered as "Te Uea" or Chiefly lands and the remainder registered as High Chief's family lands and divided into three "heads". In 1963, due to a dispute over the likely succession of a woman to the High Chieftaincy the Resident Commissioner disestablished the High Chieftainship. In Lands Case No 66 of 1964 the Lands Court distributed the "Te Uea " lands among the three "heads" of family who had been given the family lands in 1956. The Old Men of Butaritari appealed against that decision claiming that the "Te Uea" lands and the High Chiefly family lands should all be returned to the owners of the lands from which the quarters were originally excised in 1922. The Lands Court Appeals Panel held that the title to the family lands which had been registered by the Lands Commission was indefeasible by section 4 of the Native Lands Ordinance (Cap 22) but held that the “Te Uea” lands should not be divided among the family of the disestablish High Chieftaincy but should revert to the Butaritari Island Council as the only body fulfilling a "local Butaritari state role". On appeal by both parties to the Senior Magistrate he upheld the Appeals Panel on the indefeasibility of the title to the High Chiefly family lands but held that the “Te Uea” Lands should revert, not to the Island Council, but to the Crown. Both parties appealed, with leave of the Senior Magistrate, to the High Court.

HELD:

(1) That titles to land registered as prescribed in section 4 of the Native Lands Ordinance (Cap 22) are indefeasible and that the quarters registered with the three “heads” of the High Chiefly family were thus indefeasible;

(2) That the ultimate title to all lands in the Colony vested, under the prerogative, in the British monarch as Sovereign of the Colony and when, therefore, the office of High Chief of Butaritari came to an end the “Te Uea" lands held by the High Chief not as his private property but in his capacity as High Chief, for the benefit of the people of Butaritari as a whole, by virtue of the royal prerogative, reverted to the crown;

(3) That the lands register should be amended so that “Te Uea” lands which have been transferred to the “heads” of the High Chiefly family should now be registered to conform with this judgment;

(4) That it is for the Crown, to determine what should be done in cases where land registered “Te Uea” has been disposed of by the three “heads” of the High Chiefly family.

Authorities referred to:-
Native Lands Ordinance (Cap 22) sections 4, 4(2), 19(1)(a), 26(2), 26(4)
Commonwealth and Colonial Law by Sir Kenneth Roberts-Wray (1966) 625-636, 557-563
Halsbury's Laws of England, 4th Edition, Vol 8,
Constitutional Law, pghs 892, 1503
Re Mitchell, Hatton v Jones (1954) 2 A.E.R. 246
In re Southern Rhodesia (1919) A.C. 211 @ 231-233.
Amadu Tijani v The Secretary, Southern Nigeria [1921] UKPC 80; (1921) 2 A.C. 399 @ 407-409

Nabuaka Tekenano for the Family
Eritai Bauro with his speaker Tirioro Teakin for the Old Men

DAVIS J:- This is a third appeal, lodged under section 26(2) Lands Ordinance 1956, arising from a decision of a Lands Court in 1964 in Lands Court Case No. 66/64. An appeal was lodged against the decision of the Lands Court in Case No. 66/64 and this appeal was finally head by the Vice-President of the Lands Courts Appeals Panel, under the powers conferred on him by section 11(2) of the Native Lands Ordinance 1956, on the 27th November 1974 - ten years after the original decision by the Lands Court. In his judgment the Vice-President of the Lands Courts Appeals Panel (whom I shall refer to hence-forth as the Appeals Panel) gave the following historical summary of events leading up to the appeal before him.

“Before 1922, the year in which Lands Commissioner A.F. Grimble established a Lands Commission at Butaritari and Makin [under the Native Lands Commission Ordinance (Cap. 20 of the 1952 Revised Edition of the Laws of the Gilbert and Ellice Islands repealed by the Native Lands Ordinance 1956)], the High Chief had rights over the majority of lands: these were undivided and were worked by Rorobuaka (Workers) subject to the overlordship of Toka (aristocrats) appointed for the various estates by the High Chief upon his command or at the direction of their Toka; they produced food also for their Toka and themselves. Rorobuaka were normally left undisturbed on their lands but were subject to the overlordship of their Toka who were appointed by the High Chief but could be changed at the High Chief’s pleasure.

After the establishment of the Protectorate in 1892 moves were begun to limit the High Chief's powers over land and eventually in 1922 by agreement between the Old Men of Butaritari and Makin and High Chief Kaiea II the rights of the High Chief to receive tribute of food and produce and to appoint and to remove Toka were abolished in return for a quarter share of the majority of lands. These quarters were registered by Grimble under Kaiea’s name; in 1953 Lands Commissioner Roberts registered them with Kaiea mt mm with brothers and sisters); in 1956 by agreement with High Chief Koriri the half-brother of High Chief Kaiea), Nei Meri for the issue of Nei Tabanou [the sister of High Chief Kaiea] and Kaiea Tiotake for the issue of Nei Kuin [the half sister of High Chief Kaiea] about 448 of the quarters ( about half of the total area of all of the quarters) were registered Uea (High Chief) as Crown or State lands for the use of the High Chief in his position as High Chief, and the other 200 or so (also about half of the total area, were awarded to the High Chief’s family in three shares for the three “heads” of the family [i.e. Nei Tabanou, High Chief Kaiea’s sister, and High Chief Koriri and Nei Kuin, the half-brother and half-sister of High Chief Kaiea].

In December 1963 the then Resident Commissioner disestablished the High Chieftainship after a dispute about the succession amongst the Old Men of Butaritari and Makin. In 1964 in Case 66... the Lands Court... distributed the registered Uea Lands amongst the three “heads” of family referred to above."

2. The Old Men of Butaritari appealed against the decision of the Lands Court claiming that as the High Chieftainship had been disestablished all the quarters registered with the three “ heads” of the High Chiefly family, as well as those registered “Uea” (i.e. as High Chiefly State lands) should be returned to the families of the owners of the lands from which the quarters were originally excised in 1922.

3. The Appeals Panel found as a fact that the titles to the quarters registered with the three "heads" of the High Chiefly family were indefeasible by virtue of section 4 of the Native Lands Ordinance 1956 which, insofar as relevant, provides as follows:-

"4 (1) Subject to the provisions of this section, titles to lands-

(a) registered by the Commission as evidenced by a Register of Native Lands ... shall ... be indefeasible."

4. Insofar as the lands registered "Uea" were concerned, however, the Appeals Panel set aside the decision of the Lands Court that these lands should be distributed amongst the three "heads" of the High Chiefly family. The Appeals Panel came to the conclusion that the High Chiefly family had no claim to these lands and that they should vest in whatever authority on Butaritari had taken the place of the High Chief which the Appeals Panel found to be the Butaritari Island Council. The Appeals Panel also rejected the claim of the Old Men of Butaritari to a reversionary interest in the quarters registered “Uea".

5. The High Chiefly family appealed to the Senior Magistrate's Court against the decision of the Appeals Panel under section 26(1) of the Native Lands Ordinance 1956, claiming that the land registered "Uea" should remain with them as decided by the Lands Court in 1964.

6. The respondents in the appeal before the Senior Magistrate's Court stated that they were content with the decision of the Appeals Panel that the lands registered "Uea" should vest in the Butaritari Island Council, but they again claimed that the quarters registered with the three "heads" of the High Chiefly family should revert to the families of the owners of the lands from which those quarters were originally excised in 1922. The learned Senior Magistrate substituted for the decision of the Appeals Panel that the lands registered "Uea" should vest in the Butaritari Island Council as the authority on Butaritari which succeeded to the state role of the High Chief a decision that the lands registered "Uea" should vest not in the Council for reasons set out in the judgment but in the Crown as "bona vacantia" on the disestablishment of the office of High Chief.

7. The learned Magistrate rejected the claim raised at the hearing of the appeal before him by the Old Men of Butaritari to the quarters registered with the three "heads" of the High Chiefly family. He confirmed the finding of the Appeals Panel that the registered titles of the High Chiefly family to these lands was indefeasible by virtue of section 4 of the Native Lands Ordinance 1956.

8. The High Chiefly family appealed against the decision of the Senior Magistrate’s Court that the land registered “Uea” vested in the Crown, and the Old Men of Butaritari appealed against the learned Magistrate’s confirmation of the decision of the Appeals Panel that the title to the quarters registered with the three “heads” of the High Chiefly family was indefeasible by venture of section 4 of the Native Lands Ordinance 1956.

9. There are therefore two sets of appellants in the present appeal to this Court: first, the High Chiefly family represented by Nabuaka Tekenano and secondly, the Old Men of Butaritari represented by Eritai Bauro appearing with his speaker Tirioro Teakin.

10. I explained at the outset of the hearing that there was no question in this appeal of my reversing the decision of the Appeals Panel, confirmed by the Senior Magistrate's Court, that the titles to the quarters registered with the three "heads" of the High Chiefly family were now indefeasible by virtue of section 4 of the Native Lands Ordinance 1956. In spite of this admonition Eritai Bauro and his speaker Tirioro Teakin addressed the Court at length on this point. I have listened carefully to their submissions. The law is, however, quite clear that titles to land registered as prescribed in section 4 of the Native Lands Ordinance 1956 are indefeasible. The Appeals Panel has found as a fact that the titles to the quarters awarded to the three "heads" of the High Chiefly family were registered in accordance with section 4, and they are therefore indefeasible. Accordingly I, like the learned Senior Magistrate, confirm the decision of the Appeals Panel with regard to these lands.

11. In the Senior Magistrate's Court Eritai Bauro expressed himself as satisfied with the decision of the Appeals Panel that the lands registered "Uea" should vest in the Butaritari Island Council ( see page 2 of the record of the proceedings in the Senior Magistrate's Court on the 11th February 1975). He confirmed this in the present proceedings and on its being explained to him that the Senior Magistrate had found that the lands should vest in the Crown he stated, as I understood him, that he was not dissatisfied with that decision.

12. Accordingly it remains to consider the claim of the High Chiefly family that the lands registered "Uea" should be distributed amongst the three "heads" of the High Chiefly family as found by the Lands Court in Case No. 66 of 1964.

13. At the outset of his address to the Court Nabuaka Tekenano for the High Chiefly family urged that this matter should be dealt with under customary law as was done, he said, by the Lands Court in 1964. It seems quite clear to me, however, that this is a matter which falls outside the scope of customary law on Butaritari. The agreement entered into by High Chief Koriri with the Lands Commissioner in 1956 whereby part of the lands previously registered with the High Chief "with brothers and sisters" should be registered "Uea" was, as I understand it and as appears to have been found by both the Appeals Panel and the Senior Magistrate, an entirely new concept not covered by customary law. It must therefore in my view be dealt with under the principles of the common law of England applicable in the Gilbert Islands by virtue of the Gilbert and Ellice Islands Order in Council 1915 and succeeding Orders in Council.

14. In the course of his address Nabuaka Tekenano contended that the lands registered "Uea" in 1956 should be inherited according to custom by the next-of-kin of the High Chief. He maintained that the High Chieftaincy did not end with the disestablishment of the office of High Chief by the Government in 1963; that a new High Chief was elected in 1963 to succeed to the High Chieftaincy but that the election was not approved and that consequently the office of the High Chief was brought to an end. But he contended that the last High Chief's next-of-kin should have inherited the lands registered "Uea" just as they would the High Chief's private lands. He pointed out that as a result of the Lands Court's decision in 1964 the lands registered 'Uea" had been distributed amongst the three "heads" of the High Chiefly family; that he understood that the titles to these lands had been registered in the names of the members of the three "heads" of the High Chiefly family and that since 1964 land tax had been paid by the three “heads” of the High Chiefly family on the lands previously registered “Uea”. How then, he asked, could these lands now be taken away from them?

15. As regards Nabuaka Tekenano's contention first, that the High Chieftaincy did not end or was not properly ended in 1963 and secondly, that as a result of the Lands Court's decision in 1964 the lands registered “Uea” had been distributed amongst the three heads of the High Chiefly family and had been registered in their names, I should point out, that it is not open to this Court to decide whether or not the office of High Chief was properly brought to an end in 1963: that was an act of the Government of the Colony at the time and it does not arise as a question for consideration in this appeal. Secondly, there is no evidence before me that when the lands registered "Uea'' were distributed amongst the three "Heads" of the High Chiefly family as a result of the Lands Court’s decision in 1964 the titles to these lands were in fact registered in the names of the three "heads" of the High Chiefly family as alleged by Nabuaka Tekenano. But even if this is the case, it is quite clear that such registration may be varied should an appeal against the decision of a Lands Court make this necessary.

Section 19(1) of the Native Lands Ordinance 1956 provides as follows:-

"19(1) The Court (i.e. a Lands Court) shall keep registers in the form prescribed by the Governor and shall therein register or cause to be registered:-

(a) all transfers of titles to land approved by the Court;....."

Section 4(2) of the Ordinance provides as follows:-

"4(2) When the Court has, under the powers conferred upon it by section 19(1)(a), 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 under section 25 or 26, the title thus obtained as evidenced by the necessary rectifications 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 (which provides for the correction of omissions and errors found in the registers prepared under the Ordinance), be indefeasible.”

16. If therefore at the conclusion of this appeal presented under section 26 of the Native Lands Ordinance 1956 this Court upholds the decision of the learned Senior Magistrate that the title to the lands registered “Uea” is vested in the Crown, it is clear from section 4(2) of the Ordinance, as read with section 26(4) (which empowers the Court to make such orders or give directions consequential to its judgment as may be necessary), that this Court may order that the registration of the “Uea” lands in the names of the three “heads” of the High Chiefly family should be varied to conform with the decision of the Court in this appeal.

17. It remains to determine whether the learned Senior Magistrate was correct in finding that the title to the lands registered "Uea" vested in the Crown.

18. In his judgment the learned Senior Magistrate found as follows:-

"I can only interfere with the decision of the Appeals Panel if I find that the law has been mistakenly applied and I have no power to enter further into any dispute about the facts surrounding this case. I am satisfied that the Appeals Panel was correct in drawing a clear distinction between the lands which in 1956 were registered in the names of the then heads of the High Chief's family and the lands which were registered “Uea”. The former lands were clearly to be held by the persons concerned according to the normal laws and customs of land ownership. They would in every respect belong to those families with the same rights of disposal and succession attaching to any registered title to land. But the lands registered “Uea” were clearly intended to be different. If they had been intended as lands belonging to the High Chief as his ordinary property they would obviously have simply been registered in his name (as was a proportion of the lands registered at the same time). These lands were not so registered and it must have been intended that these lands were to be held by the person holding the office of "Uea" from time to time, and, I think it follows, to be held by him to be occupied and used in his capacity as “Uea” of Butaritari and not solely for the benefit of himself and his family. As “Uea” he would hold lands for the benefit of the people as a whole.

What then follows when the office of “Uea” ceases to exist? I agree with the Appeals Panel that the land can not simply revert to the family of the former High Chief. That would be to treat this land as though it were simply the ordinary property of the former High Chief and as I have said above I am satisfied that that was not the true position. This land had ceased to be ordinary family property when it was registered "Uea" in 1956. The Appeal Panel decided that it should look for the successor to the former "Uea" and it held that the successor now fulfilling 'a local Butaritari state role' was the Butaritari Island Council and that the Council therefore succeeded the former ‘Uea’ as the owner of these lands.

In my opinion that finding by the Appeals Panel exceeds the powers that the Courts have in deciding this case. What the Appeals Panel has done, and this certainly may have merit as a practical measure, is to look for the person or body who will most nearly fulfil the role of the “Uea” in his former capacity as registered owner of the lands. But that is to assert a power of appointment to title and no court has power to do that unless duly so authorised. The Butaritari Island Council can only have acquired a right to title of these lands either by grant of some kind or by operation of law. There is no such grant and I can think of no operation of law by which the Butaritari Island Council can be said to have succeeded to the land rights of the former 'Uea'. Such succession could only result from legislation in the clearest terms and there is none.

I have come to the conclusions that the law does not point to any successor in title to the lands formerly held and registered in the name of the "Uea". The "Uea" has ceased to exist and as I have tried to explain above I am satisfied that there is no reversionary interest held by the family of the former "Uea". No successor appears to have acquired these rights of ownership either by grant or by operation of law. In the result I find that ordinary title to these lands was vacated when the office of "Uea" ceased to exist.

I am bound therefore to consider the principles applying to title to land when no person appears to be entitled to it. In the circumstances of this Country, which constitutionally is a colony of the United Kingdom, I am satisfied that ultimate title to all land is held by the Queen in her capacity as sovereign power in this territory. Such authority as exists appears to point unanimously to that conclusion in a ‘ceded’ colony (which this has been since 1916) (see Roberts-Wray, Commonwealth and Colonial Law 1966) pp 625-636 and the cases there cited). I therefore hold the title embodies certain obligations which govern the use of the land for the benefit of the people of Butaritari. I would expect in any event that land would be so used. But that is not a matter which arises on this appeal. I have no sufficient information to support an informed opinion, and I have not given it more than a passing mention... "

19. I can do no better than to quote these paragraphs from the Judgment of the learned Senior Magistrate in extenso as in my view they are unimpeachable.

20. On the cession in 1919 of the islands to the British Crown by the Native Governments of the Gilbert Islands and on the consequent establishment of the Gilbert and Ellice Islands Colony by the Gilbert and Ellice islands order in Council 1915, which came into operation on the 12^th January 1916, the royal prerogative ipso facto extended to the Gilbert and Ellice Islands (see Sir Kenneth Roberts-Wray's “Commonwealth and Colonial Law”, pages 557-563, and Halsbury's Laws, 4th Edition, Volume 8, Constitutional Law, paragraph 892, on the extent of the royal prerogative, paragraph 1503 on “bona vacantia” and the authority cited thereunder of Re Mitchell, Hatton v. Jones [1954] 2 A.E.R. 246). Consequently what Roberts-Wray describes (at page 636) as the radical or ultimate title to all land in the Colony vested under the prerogative in the British monarch as Sovereign of the Colony (see also In re Southern Rhodesia [1919] A.C. 211 at pages 231-233 and Amadu Tijani v. The Secretary, Southern Nigeria [1921] UKPC 80; [1921] 2 A.C. 399 at pages 407-409). When, therefore, in 1963 the office of High Chief of Butaritari came to an end the "Uea" lands held by the High Chief not as his private property but in his capacity as High Chief or the benefit of the people of Butaritari as a whole, by virtue of the royal prerogative reverted to the Crown.

21. Accordingly I confirm the decision of the learned Senior Magistrate that title to the lands registered "Uea" in 1956 and distributed as a result of Lands Court Case No. 66 of 1964 among the three "heads" of the High Chiefly family is held by and is at the disposal of the Crown. If, therefore, as a result of Lands Court Case No. 66 of 1964, the lands registered "Uea" have been transferred to the three "heads" of the High Chiefly family and registered in their names, it will now be necessary, as a result of the present decision, to amend the register so as to conform with this decision, and I order that the necessary rectifications in the register be made accordingly.

22. In the course of this hearing I have been informed (and it so appears from the judgment of the Appeals Panel) that during the ten-year period between the hearing of Lands Court Case No. 66 of 1964 and the hearing of the appeal from the Lands Court's decision by the Appeals Panel in 1974 some of the Lands registered "Uea" and distributed amongst the three "heads" of the High Chiefly family have been disposed of. The Appeals Panel in awarding title of the lands registered "Uea" to the Butaritari Island Council gave the Council an option within one year of the judgment of the Appeals Panel to repurchase any lands so disposed of. This order was, of course, cancelled as a result of the decision of the learned Senior Magistrate in the first appeal from the Appeals Panel to the Senior Magistrate's Court. I make no order similar to that of the Appeals Panel. In my view it will be for the Crown to determine what should be done in cases where land registered “Uea” has been disposed of by the three "heads" of the High Chiefly family or, having been disposed of, have been repurchased by the Butaritari Island Council under the option to do so granted to it by the Appeals Panel in November 1974.

23. Mr Nabuaka Tekenano has also stated at this hearing that the three “heads” of the High Chiefly family have paid land tax on the lands registered “Uea” distributed amongst them as a result of the Land Courts decision in 1964. If this is the case, consideration will no doubt be given by the appropriate authorities to the refunding of such tax to those who paid it.

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