Issue of Taraki v Kakaiaman [1998] KIHC 48; HCLA 018.98 (25 September 1998)

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

HCLA 18/98

BETWEEN:

ISSUES OF ROAROA TARAKAI
Appellants

AND:

MERETIA KAKIAMAN
Respondent

Mr B Berina for the Appellants
Respondent in person

Date of Hearing: 25 September 1998

JUDGMENT

When this matter came before the court on 19 June 1998 the respondent told us that she wanted to instruct a lawyer. We adjourned the case so that she could do so. Today she tells us that she was unable to obtain a lawyer but that she is prepared to present her own case in the appeal.

In case No. 21/98 the respondent applied to the magistrates' court to be registered as co-owner with the present appellants of the lands Taubukinikabauea 807 and Antokanawa 805i and 805u.

The lands were registered many years ago by the Lands Commission in the name of Tarakai Taubakoa, who was the grandfather of the appellants. The grandfather of the respondent was Tibwe. The respondent told the lower court that Tibwe was the eldest brother of Tarakai. Tibwe went fishing one day, drifted to Maiana and died there. The respondent was told by her grandmother that all of the lands remained in Tibwe's name. When the respondent returned from school in 1978 her father told her to check the Land Register. When she did so, she was surprised to find that the subject lands were all registered in the name of Tarakai.

The appellants told the lower court that the Tibwe referred to by the respondent was not related to Tarakai. According to the appellants, that Tibwe was Tibwe Kabua, whereas the Tibwe in the appellants' family was Tibwe Taubakoa, who took the name of his brother Tabakai when Tabakai died. This Tibwe did not die in Maiana but in Tarawa.

No explanation was given to the Single Magistrate of why it had taken the respondent until 1998 to bring a claim. Nevertheless, the Single Magistrate preferred the family tree claimed by the respondent. He consequently ordered that the respondent be registered as a co-owner of the said land alongside the appellants.

The appellants have appealed this decision on four grounds, but it is only necessary for us to consider one of them, namely:

"The order of the learned Single Magistrate failed to take into account the indefeasibility of the title of Tarakai Tabakoa over the lands in question".

The Single Magistrate appears to have completely overlooked the law relating to indefeasibility of title. The parties were not legally represented in the lower court and it is true that the question of indefeasibility was not argued. Nevertheless, it was incumbent on the Single Magistrate to decide the case according to law.

There were before the lower court two extracts from the Land Registers stored in the National Archives, which leave no doubt that the subject lands were registered in the name of the appellants' grandfather Tarakai Taubakoa by the Native Lands Commission.

Under section 4(1)(a) of the Native Lands Ordinance Cap. 61, titles to native lands registered by the Commission shall be indefeasible. In other words, such titles cannot be challenged. The Single Magistrate therefore erred in law in making an order which purported to defeat the indefeasibility of the title of the appellants' grandfather by registering a co-owner. That a new co-owner cannot be added to an indefeasible title was made clear by the Kiribati Court of Appeal in the case of Bakati Kibaei & Ors v. Ribaiti Ueantabo & Ors (Land Appeal No. 3 of 1996).

It follows that the appeal must succeed. The appeal is allowed and the decision of the Single Magistrate in case No. 21/98 is set aside.

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

THE HON R B LUSSICK
Chief Justice
(2 October 1998)

TEKAIE TENANORA
Magistrate
(2 October 1998)

BETERO KAITANGARE
Magistrate
(2 October 1998)