Burera v Tekanener [1997] KIHC 71; HCLA 017.97 (1 December 1997)

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

HCLA 17/97

BETWEEN:

MAURI BURERA
Appellant

AND:

KAKIABA TEKANENE
Respondent

Appellant with her sister KAOBUNANG BURERA
Mr B Berina for Respondent

Date of Hearing: 27 November 1997

JUDGMENT

This is an appeal against the decision of Single Magistrate Karotu Tiba delivered on 14 January 1997 in case no. 787/96.

The appellant had applied to the lower court to have the name of her grandmother N. Tekanene Tibau (also known as N. Kaaua Nawaia and N. Tekanene Nawaia) registered as owner of the lands Tabonteaba, Tekainga, Antekanawa and Tabukinkabauea. Her grandmother had told her that she owned those lands but when the appellant made a search of the land register she discovered that the lands were registered in the name of the respondent.

The evidence in the lower court was that up to 1949 the owners of the subject land were the respondent's grandfather Taun Kakiaba and the respondent's father Tekanene Taun. In case no. 144/49 on 9 September 1949 the respondent's brother Tekanene Tekanene applied to be registered as owner in place of his grandfather and father, who were both deceased. The court approved the application and the subject lands were registered in the name of Tekanene Tekanene and the issue of Tekanene Taun. That title was registered by the Lands Commission.

In 1983 in case no. 84/83 the respondent became registered owner of the subject land following the death of his brother Tekanene Tekanene.

The Single Magistrate found that the title obtained in case no. 144/89 (through which the respondent's present title is traced), having been registered by the Lands Commission, was indefeasible, i.e. could not be challenged. The Single Magistrate referred to the relevant law, which is section 4 of the Native Lands Ordinance Cap. 61. He thereupon dismissed the appellant's application.

The appellant appeals that decision on the following grounds:

(1) The learned magistrate erred in fact and in law in that he seriously failed to award right to defendant to elaborate on legitimacy of acquired lands in C/N 144/49 when challenged or demanded in court.

(2) That the learned magistrate seriously failed in law for the rejection of evidence in minutes recordings.

(3) That the learned magistrate erred in fact and in law in awarding judgment to defendant by finding a decision of a Lands Commissioner, namely M. Townsend to be untouchable".

The appellant did not argue Grounds (1) and (2). We should say, however, that although the appellant has obviously done quite a bit of research, not one of the documents she has produced - 10 in the lower court and a further 3 in this appeal, - provided any proof that the appellant's grandmother had ever owned the subject land or that the respondent had acquired title by some dishonest means (as alleged by the appellant).

As regards Ground 3, we reject the claim that the Single Magistrate erred in law in finding that the decision of the Lands Commission was untouchable. As already mentioned, the law very clearly states that a title registered by the Lands Commission is indefeasible. The Single Magistrate had no option but to follow that law. He had no power to change it.

The appellant has not demonstrated that the Single Magistrate fell into error. In our view, it was not possible for him to arrive at any other decision on the evidence before him.

It follows that the appeal fails and is dismissed.

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

THE HON R B LUSSICK
Chief Justice
( /12/97)

TEKAIE TENANORA
Magistrate
( /12/97)

BETERO KAITANGARE
Magistrate
( /12/97)