Buraua v Tenamata [1996] KIHC 88; HCLA 097.92 (31 July 1996)

IN THE HIGH COURT OF KIRIBATI
HELD AT MARAKEI
(BEFORE THE HON R LUSSICK C.J.)

HCLA 97/92

BETWEEN:

UKITINO BURAUA
Appellant

AND:

KAIREITI TENAMATA
MANUERA
Respondents

Mr D Lambourne for Appellant
1st Respondent deceased
2nd Respondent in person

JUDGMENT

The persons shown on the notice of appeal as respondents are in fact appellants. Together with the named appellant they applied to the land magistrates' court in case 53/92 to cancel the registration of the title of Bwebweniman to the land Maungatabu 263-r.

According to counsel for the appellant the person who should have been named as respondent was Baitika. He was not originally a party to the proceedings below but was summoned to appear by the land magistrates' court. However, he failed to answer the summons.

The court below decided that it had no jurisdiction to deal with the matter because the transfer to Bwebweniman had already been registered and his title was thus indefeasible.

The appellant relies on the following grounds of appeal.

"(1) I wish to appeal against the registration of Bwebweniman's name on plot Maungatabu as it has no court minute to prove the registration.

(2) In the register we found out that he got Maungatabu from his father Barouea. When we look up Barouea's folio we saw that Barouea has no lands on plot Maungatabu. Therefore the register is wrong in claiming Bwebweniman's land to be obtained from Barouea as Barouea is not legally registered on plot Maungatabu".

Counsel for the appellant submits that the entry in the land register of the transfer to Bwebweniman shows that he received the land from his father Barouea. The entry also refers to a folio evidencing the father's title, but an inspection of that folio reveals that the father had no title to transfer. Had the lower court dealt with the case, there was evidence to prove that the registration was fraudulent.

Under section 64(1)(a) of the Magistrates' Courts' Ordinance Cap. 52 a magistrates' court is required to keep a register of all transfers of titles to land approved by the court.

By virtue of section 4(2) of the Native Lands Ordinance Cap. 61 the new title becomes indefeasible upon registration of the transfer in the register of native lands. Section 4(2) is in the following terms:

"4(2) When the court has, under the powers conferred upon it by section 64(1)(a) of the Magistrates' Courts Ordinance, approved the transfer of any native land as a result of causes arising subsequent to the proceedings of the Commission 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(a) of the Land Registration (Tarawa and Tabiteuea) Ordinance 1969, be indefeasible".

It is important to note that a title attains indefeasibility only when it derives from a transfer which has been approved by the court under section 64(1)(a) of the Magistrates' Courts Ordinance and is registered in the register of native lands.

"Transfer" means the passage of a right from one person to another (Osborn: A Concise Law Dictionary 5th Edit.). Where one person purports to give to another a right or title which he does not possess then what takes place cannot be described as a transfer because, in reality, no right or title has ever changed hands. The registration of such a transaction would therefore be void since there was never anything to register. The mere fact that an entry of such a transaction has been made in the register cannot be deemed to be evidence of a transfer that never existed. Such a transaction would not pass any title and so the question of indefeasibility does not arise.

In the present case it is also claimed that the transfer was not approved by the court. Approval of the court is one of the requirements for indefeasibility under section 4(2). If what was registered was not a transfer or was not approved by the court then the registration is of no legal effect.

In cases where the registration is a nullity, a magistrates' court would be entitled to order that the register be rectified by deleting the entry complained of.

In the present case we think that the magistrates' court should have dealt with the matter and, if satisfied on the evidence that the registration was fraudulent, made the appropriate order to correct the register.

The appeal will therefore be allowed. The decision of the magistrates' court is set aside and the case is remitted for rehearing. The magistrates' court is directed to summon the next of kin of Bwebweniman to appear at the hearing. If they fail to appear then the magistrates' court is to appoint a person to appear for them in accordance with Rule 28 of the Magistrates' Courts Rules.

THE HON R B LUSSICK
Chief Justice
(31/07/96)

TEKAIE TENANORA
Magistrate
(31/07/96)

BETERO KAITANGARE
Magistrate
(31/07/96)