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

HCLA 67/94

BETWEEN:

MOERA ORME
Appellant

AND:

PAUL TOKATAAKE
COUNCIL ABEMAMA
Respondents

Mr D Lambourne for the Appellant
Paul Tokataake in person
Mr T Teiwaki for Council Abemama

Date of Hearing: 9 June 1997

JUDGMENT

Counsel for the Abemama Council applies for the Council to be withdrawn as a party to this appeal on the basis that it has no locus standi. That leave is granted.

By a written agreement for the sale of land dated 14 October 1993 the respondent Paul Tokataake agreed to sell his land on which the Robert Louis Stevenson Hotel is situated known as Plot 179e to the appellant Moera Orme for the sum of $2,000, of which $1,000 was to be paid immediately and the remaining sum of $1,000 within one year. The respondent undertook to ensure that the said land was transferred to Moera Orme "immediately and without delay". If the remaining $1,000 was not paid within the period specified then the land would be returned to the respondent and the $1,000 already paid would be forfeited. The signing of this agreement by both parties took place at the Development Bank's office in Bairiki before two witnesses who also signed.

There were a number of attempts by the respondent to transfer the land, without success. Then the Abemama Council sought to join in the proceedings before the magistrates' court, claiming ownership of the land. Case No. 66/94 was a preliminary hearing held to determine the Council's standing. The magistrates' court decided that since the subject land was registered in the name of Uea the Council had no standing.

We should mention here that it is widely known and not in dispute that the respondent Bauro Tokataake is Te Uea (King or High Chief) of Abemama. It is also not disputed that the subject land is registered in the name of Uea.

The appellant paid the $1,000 immediately as required by the agreement, but after 9 months the respondent still had not transferred the land to her. She then brought an action (case No. 68/94) seeking damages of $4,999 and an order for the respondent to comply with the agreement. The amount claimed for damages was said to represent loss of income occasioned by the appellant's being unable to repair the hotel and open it for business.

The case was heard by Single Magistrate Boutu B. Kaimauri. Both the appellant and the respondent told him that they wanted the agreement to be honoured. The respondent said that in November 1993 he went to court and urged the court to allow him to honour the agreement but the court told him he was not allowed to make any more transactions with regard to lands under his title. According to the respondent, he then applied to the court for a boundary determination to be carried out so that a reasonable portion of the land in question could be set aside for the appellant's plot. The respondent said that some months later he again went to court to have the land transferred to the appellant but on that occasion the Abemama Council claimed to be an interested party and requested an adjournment, which was granted. The respondent told the Single Magistrate that he still had the intention of fulfilling the agreement and that he had done everything he could, not only to honour the agreement but to assist the appellant in any way he was able.

There was thus no dispute between the parties that the land should be transferred to Moera Orme in accordance with the agreement.

However, the Single Magistrate conducted his own search of the Land Register and found that the subject land was not registered under the name Paul Tokataake. He then decided that Paul Tokataake was not the legal owner of the subject land and therefore the agreement was void. He thereupon dismissed the appellant's claim. It is this decision which the appellant now appeals.

The grounds of appeal relied upon are as follows: "That the first decision concerning a preliminary issue at the full trial, and the second decision are ambiguous and contradictory in declaring the true ownership of Plot 179e at Kariatebike, and in holding an agreement between the Appellant and First Respondent dated 14th October 1993 void".

Having ruled that the contract was void, the Single Magistrate did not go on to deal with the appellant's claim for damages of $4,999. Since Counsel for the appellant in this appeal has not pressed that particular claim we will treat it as having been abandoned.

As to the contract itself, if we assume that the respondent was entitled to sell the land - and we will come to that issue presently - then in our view the contract is quite obviously valid and thus legally enforceable.

As we understand his decision, the Single Magistrate had two reasons for finding that the contract between the parties was void. Firstly, that the land the subject of the contract was not adequately described, and secondly, that Paul Tokataake was not the lawful owner of the land.

The parties themselves were in no doubt as to the land which was being sold and there was no controversy in that regard. The subject land was also clearly described in the contract. In the lower court a plan of the subject land was put in evidence. This plan was prepared by D J Moss who was not only a land surveyor but became the Chief Lands Officer. The Single Magistrate found this plan to be unreliable since it did not show who was the legal owner of the land. That was an entirely different issue to the identity of the land. In our view the plan was sufficient to describe the subject land.

The Single Magistrate was also referred to a map annexed to the minutes of case 9/80 which was said to clearly identify the boundaries of the land. The Single Magistrate also rejected that map because it did not state the number of the plot. However, there was unchallenged evidence for the appellant that the land in that map was the subject land.

The Single Magistrate was, in our view, wrong to reject the two plans as evidence providing a description of the land. He was also wrong to disregard the evidence of the representative of the appellant which was not challenged. We cannot find any basis for holding that the subject land was not sufficiently identified.

We come now to consider whether Paul Tokataake was legally entitled to sell the land.

The Single Magistrate omitted altogether to deal with the position that Te Uea, in whose name the subject land is registered, and Paul Tokataake are one and the same person. In case No. 7/93 on the 1st March 1993 the Abemama Land Magistrates' Court ordered the cancellation of an injunction preventing Paul Tokataake from selling Uea lands. The court recognised that Paul Tokataake succeeded his father, the late Tekinaiti Tokataake, as Te Uea, or King of Abemama, and had the right over all Te Uea property. This decision obviously cannot be reconciled with the Single Magistrate's decision in the present case.

Counsel for the appellant has also referred us to a decision of the Fiji Court of Appeal delivered on 30 September 1980 in the case of Nei Taonamaina Smith v. Tautei Naunta (Civil Appeal No. 4 of 1979). The respondent in that case had purchased two plots of land in Abemama from Te Uea. The Lands Court Appeal Panel had set aside the sale on the ground that Te Uea lands could not be sold. The respondent then appealed to a Commissioner of the High Court, who reversed the decision of the lower court and ordered that the lands be re-transferred to the respondent. The Fiji Court of Appeal dismissed the appeal from the Commissioner's decision. 

The Fiji Court of Appeal made the distinction between lands held by the High Chief as his own personal property and Uea land held by him in his capacity as Te Uea. Lands which are not held for his personal benefit or that of his family are held by him as Te Uea for the benefit of the people as a whole.

The Fiji Court of Appeal considered that the transfer of lands was governed by section 13(1) of the Native Lands Ordinance Cap. 22 (now section 58(1) of the Magistrates' Courts Ordinance Cap. 52). That subsection provides:

"Subject to sections 31(1) and 33 of the Native Lands Ordinance the court shall hear and adjudicate in accordance with the provisions of the Lands Code applicable or, where the Code is not applicable, the local customary law, all cases concerning land, land boundaries and transfers of title to native land registered in the register of native lands and any disputes concerning the possession and utilisation of native land".

The Fiji Court of Appeal came to the conclusion that since no specific reference was made in the Lands Code to Uea land, except in the case of the island of Makin, the Lands Code did not apply to Uea lands. Therefore the validity of sales from Te Uea would depend on local custom. In this regard the Court approved the burden of proof stated in Halsbury 4th Edition Vol. 12 para 426 which reads: "All customs of which the courts do not take judicial notice must be clearly proved to exist, the onus of establishing them being upon the parties relying upon their existence".

After reviewing the considerable evidence placed before it, the Fiji Court of Appeal found that it was not possible to hold that Te Uea lands are subject to any special limitations, arising from local customary law, in the matter of alienation. The Court also noted that the learned Commissioner of the High Court had found that there was very persuasive evidence of a customary right of the High Chief to dispose of royal lands.

The Single Magistrate did not state in his decision why Paul Tokataake would not legally be entitled to sell a Uea land when he himself is Te Uea. The Single Magistrate had not taken judicial notice of any custom to the contrary, nor was there any evidence that any such custom existed. There was clearly no evidence to support the proposition that Paul Tokataake was not legally entitled to sell the subject land and the Single Magistrate therefore erred in coming to such a conclusion.

There is one more matter that we should mention. Despite what the respondent told the lower court, he now tells us that he is having second thoughts about the sale and would like to delay its approval for a few months because some of his children are not happy about it. If his children had any serious objections to the sale then we would have expected them to apply to the magistrates' court before now. The sale was made well over 3 years ago and it has been no secret that up until now the question of its approval has been pending in the High Court. So far as we are aware, no such application has been made. We therefore do not see any impediment to this court making the order which should have been made by the lower court in 1993.

Accordingly, the appeal is allowed and the decision of the Single Magistrate is set aside. In lieu thereof the transfer of the subject land to the appellant is approved and we order that the title thereto is to be registered in her name.

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

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

TEKAIE TENANORA
Magistrate
(  /06/97)

BETERO KAITANGARE
Magistrate
(  /06/97)