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

HCLA 47/98

BETWEEN:

TIMAU ITINIKAAI
Appellant

AND:

TENNA TEKEE
ATANIMOA TEKEE
Respondents

Appellant by husband Iorim
Mr D Lambourne for the Respondents

Date of Hearing: 5 February 1999

JUDGMENT

This is an appeal against the decision of the Magistrates' Court (Lands) delivered on 19 March 1998 in case No. A74/98. The appellant's family had applied to be joined as co-owners of the land Tetabo 815u with the respondents. The Single Magistrate refused to hear the claim on the ground that the issue had already been decided in favour of the respondents in case No. 451/96.

The appellant relies on the following ground of appeal:

"We were not satisfied with the decision since we are co-owners of the land Tetabo and we were not included in the registration over the said land".

In case No. 451/96, the appellant's family applied to be registered as co-owners of the subject land and another land named Tetabuki. The defendants in that suit were named as "N. Tebureniwi Kamaua and Issues of N. Miriam Kamaua". The present respondents are in fact the issues of N. Miriam Kamaua. The other defendant, N. Tebureniwi Kamaua, is N. Miriam's sister. The subject land was registered in the name of the two sisters in 1962. In 1975, the present respondents were registered alone as the owners of the subject land in case No. 84/75 (the subject land was then described as ""Tetabo 815i"" but it has since been re-numbered as Tetabo 815u).

After the magistrates' court had rejected their claim in case no. 451/96, the appellant's family appealed to the High Court in HCLA 71/96. However, they later withdrew the appeal and it was accordingly dismissed.

In 1998, the appellants brought another suit in the magistrates' court in case no. A74/98, the decision in which is now under appeal. In that case they applied to be registered as co-owners only of the subject land, Tetabo 815u, and they described the defendants by their own names (N. Tenna Tekee and Atanimoa Tekee) rather than as the issues of N. Miriam Kamaua. Nevertheless, it is correct to say that the case involved the same land, the same parties and the same issue as case no. 451/96, which had already been decided in favour of the present respondents. The law provides that once an issue between parties has been litigated and decided, it cannot be raised again between the same parties. Thus, in our judgment, the Single Magistrate was correct in refusing to hear the case again.

As submitted on behalf of the respondents, there is an equally strong reason why the appellant cannot succeed. As already mentioned, the respondents were registered as the owners of the subject land in 1975 by virtue of case no. 84/75. Their title is therefore indefeasible (i.e. cannot be challenged) pursuant to section 4(2) of the Native Lands Ordinance Cap. 61.

There is one other matter we ought to deal with. The appellant, in support of her claim, produced to us without objection a letter dated 29 August 1996 signed by Tebureniwi Kamaua. The letter is to the effect that the lands Temanoku, Tetabuki and Tetabo are co-owned by Tebureniwi and the appellant's family and that Tebureniwi is happy for them to be registered with herself as co-owners. In our view, that letter is irrelevant so far as the subject land is concerned, since Tebureniwi parted with ownership in 1975.

It follows from what we have said that the appeal cannot succeed and is accordingly dismissed.

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

THE HON R B LUSSICK
Chief Justice
(19/02/99)

TEKAIE TENANORA
Magistrate
(19/02/99)

BETERO KAITANGARE
Magistrate
(19/02/99)