Tabunga v Tabunga [1996] KIHC 98; HCLA 043.96 (12 September 1996)

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

HCLA 43/96

BETWEEN:

KAOBOBO TABUNGA
Appellant

AND:

TANIERA TABUNGA
Respondent

JUDGMENT

The appellant applied to the Nonouti Magistrates' Court (Lands) in case No. 19/96 for an order returning the lands Teruarua 389/10 and 389/12 to herself as the issue of Tabwia Natua. She gave evidence that the lands were given by Tabwia Natua to Nei Teabo Tebuabua, who died issueless. The appellant's claim was that because Nei Teabo died issueless the lands should revert to issue of Tabwia Natua, her grandfather. The magistrates' court's decision was as follows:

"This court accept this complaint and from this time, this land, Teruarua must be returned to Tabwia. This is decided as Teabo is issueless. And under this law - Sec. 11(v) Lands Code the land must be reverted/returned to the families of the original owner, Tabwia Natua as N. Teabo is issueless".

Ironically, it was the successful party in the court below who appealed this decision. The appellant's grounds of appeal are that, by virtue of the decision, Teruarua 389/10 reverts back but Teruarua 389/12 does not. The appellant tells us that she is not saying the magistrates were wrong. She is just not happy with the share she received. We are unable to understand how she arrives at the conclusion that the decision has such an effect. The decision appears to us to refer to both parts of the land Teruarua which were in dispute.

The respondent submits that the issue has already been decided by the Lands Commission. He has referred us to a decision of the Lands Commission in case No. 535/50. It is quite clear from the minutes of this case that the disputed lands were not given by Tabwia Natua to Nei Teabo Tebuabua. Tabwia Natua gave the lands to Karawa, who was Nei Teabo's father. Karawa had two daughters, N. Teabo, who was issueless and N. Maria who had 7 children. The decision of the Lands Commission was to register the disputed lands, plus two other parcels, in the names of Nei Teabo Tebuabua and sisters.

The case 535/50 was not specifically mentioned in the lower court. Nevertheless, the respondent did tell that court that there had been several previous court hearings. This should have prompted the magistrates to at least enquire into the circumstances in which Nei Teabo came to be registered as owner.

As it is, the decision of the lower court is completely erroneous. It was based on facts which did not exist and it also sought to interfere with a title registered by the Lands Commission which is indefeasible.

The appellant has clearly failed to show that there is any basis to her grounds of appeal. The respondent has not filed a cross-appeal but, regardless of that, the decision of the lower court cannot be allowed to stand. The appeal is therefore dismissed. The decision of the magistrates' court is set aside and in lieu thereof there will be judgment for the respondent.

The appellant has a right of appeal to the Court of Appeal to be filed within 6 weeks.

THE HON R B LUSSICK
Chief Justice
(12/09/96)

TEKAIE TENANORA
Magistrate
(12/09/96)

BETERO KAITANGARE
Magistrate
(12/09/96)