Tekaiwa v Taroro [1997] KIHC 32; HCLA 034.94 (29 May 1997)

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

HCLA 34/94

BETWEEN:

RIOTETI TEKAIWA
Appellant

AND:

NAMANOKU TARORO
Respondent

Appellant represented by Iote Malua
Mr D Lambourne for the Respondent

HCLA 88/96

BETWEEN:

IOTE MALUA
Appellant

AND:

NAMANOKU TARORO
Respondent

Appellant in person
Mr D Lambourne for the Respondent

Date of Hearing: 27 May 1997

JUDGMENT

Although allocated two case numbers, this is actually just one appeal. Rioteti Tekaiwa wrote various letters indicating he was going to bring an appeal and accordingly the file HCLA 34/94 was raised. Rioteti never went so far as to file any grounds of appeal. He has since appointed his brother Iote Malua to represent him. Iote Malua filed the grounds of appeal in HCLA 88/96.

In case No. 3/95 Iote (the appellant) applied to the Kuria Land Magistrates' Court for the land Aontekeang 117a to be registered under his father's name Tekaiwa.

Iote's evidence was that the land had been owned by Taroro, the respondent's father. Taroro was committed to prison in Tarawa for failing to pay tax on the lands he owned in Kuria. Taroro needed money and so he offered to sell the subject land to Tekaiwa. The sale was made and in 1953 Tekaiwa travelled to Kuria, located the land and built a house on it. Tekaiwa lived on that land until he died some time in the 1980s. Although Tekaiwa paid land tax on the property his title was never registered because the Presiding Magistrate on Kuria in those days was not on good terms with Tekaiwa and created difficulties when Tekaiwa tried to register his land.

In the lower court, the respondent conceded that there had been a sale between Tekaiwa and Taroro. However, the respondent's case was that the whole issue between Tekaiwa and Taroro had already been decided by the magistrates' court in 1962 in case No. 95/62.

The lower court obtained the record of case No. 95/62 from the archives. The title of the case was "Kaetan te Bo-Aba Aontekeang 117a) ("Correction of Land Purchase Aontekeang 117a"). The parties in that case were Taroro and Tekaiwa. After hearing the case in 1962 the magistrates decided as follows:

"The Court has unanimously decided that Tekaiwa be given £25 as per Taroro's submission when saying he must pay back Tekaiwa's money. Tekaiwa must be given £25".

The lower court decided that the issue before them was the same issue that was before the magistrates' court in 1962. That being so, the lower court declared that it had no jurisdiction to overturn the 1962 decision. The lower court concluded that since there had been no appeal against the 1962 decision, it was binding on the issue of Tekaiwa and on the issue of Taroro.

It is this decision of the lower court which is now under appeal. The appellant brings his appeal on these grounds:

"1. Upon the grounds that his father paid for the land.

2. His father paid the appeal fee on time".
   

As to the first ground, it has never been contested that the appellant's father paid money for Taroro's land. This was considered by the magistrates in the 1962 case. However, the magistrates in that case refused to approve the transfer from Taroro to Tekaiwa and ordered Taroro to refund Tekaiwa's money. The appellant tells us that Tekaiwa refused to take the money back, but that is immaterial.

The appellant's second ground of appeal is that his father paid the appeal fee in time. To support this he produced a copy of a letter dated 27^th September 1963 written by his father to "the members of the Land Court" and "The Government at Kuria". From our understanding of the letter, Tekaiwa approached the Lands Court on the 25^th September 1963 about his dispute with Taroro, alleging that Taroro had cheated him and had taken back his land under the Lands Commission on the 7^th September 1963. Tekaiwa acknowledged that he was told by the Land Court that the Lands Commission had already dealt with the matter so the Land Court could not deal with it. Tekaiwa goes on to claim that he gave "the Lands Scribe" the money for his appeal but the money was not accepted and he was told to take the appeal to the members of the Land Court. The only other reference to an appeal is later on in the letter when Tekaiwa says: "I request a copy of my letter be sent to the Lands Commission since the receiving of my money was opposed for me to file an appeal".

The appellant's father does not seem to have done anything more about appealing the decision in case No. 95/62 from that letter in 1963 until his death in the 1980s. It appears from his letter that after the 1962 decision, Taroro's title was registered by the Lands Commission. Such title would therefore be indefeasible. It may be that Tekaiwa eventually accepted that fact and perhaps that is one explanation of why he did not take any further steps to file an appeal.

The fact remains that the 1962 decision was never appealed. The effect of that decision was to extinguish any interest Tekaiwa had in the land. By virtue of that decision Tekaiwa had no title to the land because he failed to obtain the approval of the court to the transfer from Taroro to himself as required by law.

In the absence of any appeal, the magistrates' court was quite correct in holding that it had no jurisdiction to overturn the 1962 decision.

We might add that if the appellant's father was correct when he said in his letter that Taroro's title had been registered by the Lands Commission then that title would be indefeasible, so that any subsequent appeal by the appellant's father would have been futile.

It follows that the appeal must fail and is dismissed accordingly.

The appellant is advised that he has a right to appeal to the Court of Appeal within 6 weeks.

THE HON R B LUSSICK
Chief Justice
(29/05/97)

TEKAIE TENANORA
Magistrate
(29/05/97)

BETERO KAITANGARE
Magistrate
(29/05/97)