Baroia v Tekaai [1997] KIHC 33; HCLA 013.97 (1 June 1997)

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

HCLA 13/97

BETWEEN:

BAROIA & OTHERS
Appellants

AND:

TUABO TEKAAI
Respondent

Mr D Lambourne for the Appellants
Mr B Berina for the Respondent

Date of Hearing: 22 May 1997

JUDGMENT

This is an appeal from the decision of Single Magistrate K. Tebweao in case No. 633/96. The appellants were the applicants in that case and their application was that the land Temoaniwa 583u be registered in their names or, as they put it, "returned to us". The Single Magistrate found that the appellants were the rightful owners of the land but rejected their claim on the ground that the title to the land was registered in the name of the respondents in 1976 and was thus indefeasible. It is this decision which is now under appeal.

The appellants told the lower court that certain lands in the estate of Tekita had been distributed amongst his children. The subject land was given to Tekita's son Kateke. Kateke's son Kairaku inherited the land when Kateke died. In 1956, in case No. 83/56 Kairaku allowed the name of his cousin Karotu to be registered along with his as a co-owner. Karotu was the father of the appellants.

However, after the death of Kairaku the respondents in 1976 registered their names over the land in case No. 34/76, which was heard in the absence of any of the children of Karotu.

Counsel for the appellant concedes that the respondents are entitled to a share of the land because Kairaku died issueless so that any land received from his father would return to the brothers and sisters of his father. But, counsel submits, there is no reason why the registration of the issue of Karotu should have been cancelled in 1976.

The respondents (we use the plural because N. Tuabo also represents her brother and sisters) are the children of Tekaai, who was Kateke's brother. N. Tuabo told the lower court that the subject land had been given to their father Tekaai. Tekaai in turn gave the land to his nephew Kairaku and N. Tebanimarawa as issue of Karotu. This Karotu was a different Karotu from the Karotu who was the appellant's father. This transfer was registered in the 1956 case. In that case, Tibau, Tekaai's brother and the grandfather of the appellants, came to court and consented to the registration of the land in the name of Kairaku and the issue of Karotu. Also consenting to the registration was Temangoniti who was the issue of N. Tebanimarawa. N. Tuabo said that when Kairaku died she and her brother Timaua took possession of their father's land. The brothers and sisters of their father were not concerned over this because they knew the land belonged to the respondents.

We have considered the evidence and have come to the conclusion that the Single Magistrate was incorrect in finding that the appellants were the rightful owners of the subject land. In our view, the appellants did not establish their claim to ownership of the land on the balance of probabilities. The evidence in fact preponderated in favour of the respondents.

The Single Magistrate seemed to base his acceptance of the appellants' case solely on the minute of the decision in case No. 83/56. This minute simply reads: "The plot Temoaniwa 583u is to be registered under the name Kairaku and the offspring of Karotu".

That minute is equally consistent with what the respondent N. Tuabo told the court. It was never denied by the appellants that there was another Karotu apart from their father. Also, N. Tuabo was able to give specific details of the 1956 hearing. There was no similar evidence in the appellants' case.

After the death of Kairaku the respondents promptly took possession of the subject land and went to court in case No. 34/76 to register the owners of the land as "Timaua Tekaai with sisters and issue of brothers" in place of Kairaku. It is consistent with N. Tuabo's evidence that the court in that case did not require the presence of the appellants. It will be remembered that N. Tuabo said in evidence that the "issue of Karotu" registered in the 1956 case did not refer to the appellants but to the issue of a different Karotu. We note from the Notice of Appeal that the appellants claim that this other Karotu was deceased at the time of the 1956 case. The fact that there was no one to dispute case No. 34/76 is also consistent with N. Tuabo's evidence that it was generally accepted that the land belonged to them.

In contrast to what the respondents did upon the death of Kairaku, the appellants have taken 20 years to bring their claim and they have given no explanation for the delay. Such a lengthy delay supports N. Tuabo's assertion that it was well known that the land belonged to the respondents.

Having said that, there is no question that the Single Magistrate made a correct statement of the law as regards the indefeasibility of the respondents' title. Section 4(2) of the Native Lands Ordinance Cap. 61 provides as follows:

"S.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 on 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(2) of the Land Registration (Tarawa and Tabiteuea) Ordinance 1969, be indefeasible".

That provision makes it clear that, upon registration, the title obtained by the respondents was indefeasible; in other words, no adverse claim could be brought against that title. Indefeasibility of title does not, of course, affect claims in personam.

We also agree with the view expressed by the Single Magistrate that in the face of an indefeasible title it is immaterial that the appellants were successful in proving a claim to the land. We would stress, however, that we consider that the Single Magistrate's finding on that issue was incorrect.

The law is against the appellants and their appeal must fail.

The appeal is dismissed.

THE HON R B LUSSICK
Chief Justice
( /06/97)

TEKAIE TENANORA
Magistrate
( /06/97)

BITIARE EKERA
Magistrate
( /06/97)