Trustees of the Church of Jesus Christ of Latter Day Saints v Eritane [1998] KIHC 22; HCLA 077.97 (29 April 1998)

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

HCLA 77/97

BETWEEN:

THE TRUSTEES OF THE
CHURCH OF JESUS CHRIST
OF LATTER DAY SAINTS
Appellants

AND:

MARAWA ERITANE
Respondent

Mr D Lambourne for the Appellants
Mr T Teiwaki for the Respondent

Date of Hearing: 24 April 1998

JUDGMENT

In case No. 224/97 the appellant applied to the South Tarawa Magistrates' Court (Lands) before Single Magistrate Karotu Tiba for the removal of the respondent's name as joint owner from the title of the land Taubukinikabauea 807a (also known as Tabonikabauea 807a). The Single Magistrate dismissed the application. That decision is now appealed on the following ground:

"The Single Magistrate erred by effectively over-ruling the decision of the Magistrates' Court in case 952/94, thereby interfering with the Appellants' grant of indefeasible title to land Taubukinkabauea 807a".

It is not disputed that the vendor, Kakiaba Tekanane, was a joint owner with the respondent Nei Marawa Eritane when he sold the subject land to the appellant. Kakiaba is known as the respondent's uncle, but he is in fact the brother of the respondent's grandfather, Tekanene Tekanene. A family tree is set out in the judgment of the Single Magistrate.

The Deed of Sale dated 16 December 1994 recites that the seller Kakiaba only purported to sell and convey to the buyer "all his right, title and interest" in the subject land. Needless to say, as a matter of both fact and law, that is all that he possibly could convey and sell. The fact that he was a joint owner could easily have been ascertained by the appellant by an appropriate search of the register.

Nevertheless, when the sale came before the South Tarawa Magistrates for approval in case No. 952/94 there was no mention of the respondent or the fact that the land was jointly owned. The judgment in that case simply directs the registration of the subject land in the name of the appellant. It is clear from Kakiaba's evidence in the case under appeal (224/97) that he knew he had acted wrongly in selling the land without the joint owner joining in. He claimed that he was not selling the whole of 807a, and even suggested that the land he sold should be described as "807a/1" and the remainder as "807a/2". But when it was suggested to him in cross-examination that what he did was wrong because he did not have Nei Marawa's authority, all he could reply was, "She can appeal". Of course, she could not appeal the proceedings 952/94 because she was not a party. The respondent claims that Kakiaba transferred the whole of 807a, not just a part. In any event, as a joint owner, the respondent has the same interest as any other joint owner and was entitled to possession of the whole of the land.

What brought the appellant back to court was the discovery that the Lands Office had registered the transfer by simply entering the appellant's name in place of Kakiaba, and leaving the respondent's name in the register as a joint owner. We can understand why this was done. The officer at the Lands Office must have reasoned that Kakiaba could not have sold anything other than his own interest. That is the view we take. The deed recites no more than that. In our view, the approval of the magistrates' court in case No. 952/94 can only be read as an approval of the sale of whatever interest Kakiaba had in the subject land.

We do not think that the Single Magistrate ignored the principle of indefeasibility of title which, in this case, is governed by section 4(2) of the Native Lands Ordinance Cap. 61. Section 4(2) reads as follows:

"(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".

At present there is no court register, apart from the recorded court minutes. We have already mentioned what effect ought to be given to the decision in case No. 952/94. That is precisely what was done by the Lands Office in recording the appellant as a joint owner. That title is recorded in the register of native lands, or what serves as such a register until a replacement register is validated (the original register went missing some 10 years ago). As evidenced by that registration, the title of the appellant to the share formerly owned by Kakiaba is indefeasible.

In our view, the Single Magistrate was not in error in refusing to remove the respondent's name as a joint owner. It follows that the appeal fails and is dismissed.

THE HON R B LUSSICK
Chief Justice
(29/04/98)

TEKAIE TENANORA
Magistrate
(29/04/98)

BETERO KAITANGARE
Magistrate
(29/04/98)