Kataba v Talia [1999] KIHC 18; HCLA 092.97 (19 March 1999)

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

HCLA 92/97

BETWEEN:

TOKAMAEN KATABA
Appellant

AND:

PITOI TALIA
BUREAUA NARUAI
Respondents

Ms J Fleer for the Appellant
Mr B Berina for the 1st Respondent
No appearance of 2nd Respondent

Date of Hearing: 26 February 1999

JUDGMENT

In 1986 the first respondent (Pitoi) bought the subject land Takoronga 809o from the second respondent (Bureaua). The sale was approved by the Magistrates' Court (Lands) in case no. 401/86, wherein it was ordered that the land be registered in the name of Pitoi.

The appellant is the son of Nei Ariti Naruai, who was the sister of Bureaua. On 7 August 1997 in case no. A334/97 the appellant applied to the South Tarawa Magistrates' Court (Lands) to cancel the 1986 sale to Pitoi on the ground that his mother Nei Ariti was a co-owner of the land with Bureaua and had not given her consent to the sale.

The Single Magistrate hearing the case disbelieved the appellant's evidence, found that he had not proved that his mother had ever been registered as a co-owner, and rejected his claim.

That decision is now appealed by way of an Amended Notice of Appeal in the following terms:

"1. The Single Magistrate erred by finding that the Appellant's mother, Nei Ariti Naruai was not registered on the land of Takaronga 809o whereas she was registered as Bureaua Naruai with sister in case number 159/80 and confirmed in 98/91.

2. The Single Magistrate erred in finding that the Appellant and his mother had no case to bring before the court whereas the Appellant's mother, having been registered over the land, and the land having been sold to the First Respondent by the Second Respondent without the Appellant's mothers consent did have such a case".
   

The cases mentioned in the first ground of appeal were not in evidence in the lower court and have been produced in this appeal, without objection, as evidence which has come to the appellant's knowledge after the decision of the Magistrates' Court. We will return to them.

In case no. 401/86 Bureaua was described as Bureaua Rabaua. In the agreement for sale to Pitoi approved by the Magistrates' Court, Bureaua Rabaua warranted that the subject land Takoronga 809(o) was his own unencumbered property, free from all encumbrances other than a lease to the Betio Club. The lease referred to was a lease from the previous owner, Rabaua Nakabuta (Bureaua's uncle), to the Betio club for a term of 99 years from 1st June 1969. After Pitoi was registered as owner, the rent from this lease was paid to him.

Since acquiring the property, Pitoi has been to court on numerous occasions in respect of disputes with the Betio Club about rent, as well as challenges to his title by Bureaua's children.

The Single Magistrate accepted Pitoi's evidence that Nei Ariti during her lifetime – she died in 1993 – had never disputed the sale to him nor the fact that he was receiving the rent. The Single Magistrate also accepted Pitoi's evidence that the appellant himself had in fact supported him in the cases brought by Bureaua's children.

Although Nei Ariti never claimed to be a co-owner, she did go to court many years before Pitoi became owner. In case no. 18/65, held on 14 April 1965, she brought a claim against Rabaua Nakabuta for a share of the rent from the land at Betio (which we presume was Takoronga 809o, although it was not specifically described). In that case, the Magistrates' Court, after referring to the Land Register, found that the father of Nei Ariti (Naruai Nakabuta) was not registered as an owner and that the land stood solely in the name of Rabaua Nakabuta. However, the court decided that although Rabaua Nakabuta was the only person entitled to collect the rent, he should give a share to the issue of Naruai.

The following two cases were the cases brought by Bureaua's children mentioned earlier.

In case no. 970/94 on 19 December 1994, the children of Bureaua took Pitoi to the Magistrates' Court seeking to have Takoronga 809o returned to their family. The court would not interfere with the sale to Pitoi and dismissed the claim.

One of Bureaua's children took Pitoi to court again on 8 April 1997 in case no. 76/97, claiming the return of the subject land on the basis that the children had never consented to Bureaua's selling the land. The Magistrates' Court upheld the previous decision in case no. 970/94 and dismissed the claim.

Pitoi was also involved in a plethora of disputes with the Betio Club about the rent. The results of the various cases are not pertinent, but we will give a short history.

In 1988 in case no. 242/88 Pitoi sought to evict the Betio Club for non-payment of rent. The case was appealed to the High Court in HCLA 259/88, which was decided on 19 January 1990. One of the issues decided by the High Court was that Pitoi was the owner of Takoronga 809o.

Pitoi took the Betio Club to court again for the same reason in 1993 in case no. 486/93. The decision was appealed to the High Court in HCLA 77/93. The High Court delivered a decision on 17 January 1994 which was itself appealed to the Court of Appeal in Land Appeal No. 2 of 1994.

The amount ordered by the Court of Appeal to be paid by the Betio Club was not paid, so Pitoi again sought eviction in the Magistrates' Court in case no. 706/94. The decision in that case was appealed to the High Court by the Betio Club in HCLA 59/94. That appeal was settled between the parties without proceeding to a hearing.

Pitoi returned to the Magistrates' Court in 1996 in case no. 416/96, again seeking the eviction of the Betio Club.

From that history, the Single Magistrate concluded – and we must agree with him – that Pitoi has been recognised as the true owner ever since he was registered in 1986. During that period, despite the numerous court cases, there is no record of the appellant, or his mother while she was alive, ever having come before a court to assert an interest in the subject land, that is until the present claim was brought on 7 August 1997.

There was no evidence before the Single Magistrate that Nei Ariti's father Naruai Nakabuta had ever been an owner of the subject land, nor was there any evidence that Nei Ariti herself had been registered as a co-owner.

Furthermore, the Single Magistrate was entitled to accept Pitoi's evidence in preference to that of the appellant. Pitoi proved his title by producing a copy of the decision in case no. 401/86, which has never been appealed. On the other hand, the appellant was not able to produce any corresponding proof that his mother had ever held title to the subject land.

In our opinion, there was nothing wrong with the Single Magistrate's decision, given the evidence presented to him.

However, as already mentioned, the appellant now seeks to rely on evidence discovered after the Single Magistrate's decision, although such evidence would have been available to him to present at the proper time had he been diligent in his enquiries.

The evidence takes the form of the minutes of two Magistrates' Court cases, 59/80 and 98/91, and an extract from an unofficial register of native lands kept by the Land Management Division (the official register went missing in 1987 and a Commission is being set up to replace it).

In case no. 159/80 dated 12 December 1980, the Magistrates' Court ordered that Bureaua be registered with his sister Nei Ariti Naruai over the land of their deceased father, Naruai Nakabuta. The minutes of the other case, no. 98/81, are extremely brief and show only that the Magistrates' Court confirmed a distribution which Bureaua was to have with Nei Ariti.

In our view, neither of those cases cures the defects in the appellant's claim. No description was given in either case of the land intended to be affected by the decision. The cases, by themselves, are incapable of supporting a finding that a co-ownership in the subject land Takoronga 809o was thereby passed to Nei Ariti. All the more so because it has never been proved that Naruai Nakabuta had ever owned an interest in the subject land.

Moreover, no reliance can be placed on the extract from the unofficial land register. The extract shows Bureaua Rabaua (Naruai) MM (MM – with sister) to be the owner of several parcels of land, but there is no mention of the subject land, Takoronga 809o. There are entries for Takoronga 809o/1 and Takoronga 809o/2, but we regard those lands as different parcels from Takoronga 809o. That is the only conclusion we can come to after considering the vast litigious history of the subject land, in which it has never been described as anything other than Takoronga 809o. There is no evidence before us which would entitle us to come to a different conclusion.

Furthermore, the two entries themselves are erroneous. The entry for Takoronga 809o/1 states that the land was received from Rabaua Nakabuta by conveyances 159/80 and 98/81. As we have seen, those cases had nothing to do with Rabaua Nakabuta. Similarly, the entry for Takoronga 809o/2 states that the land was received from Nei Ariti Naruai also by conveyances 159/80 and 98/81. That, too, is obviously incorrect.

Thus, not only has the relevance of the extract not been established, but its inaccuracy would, in any case, prevent it being given any weight.

It follows that, after having considered the further evidence produced in this appeal, we have formed the opinion that the appellant has failed to prove on the balance of probabilities that his mother Nei Ariti was a co-owner of the subject land.

At this point, we should make it quite clear that had there been such proof, the appellant's remedy would have been in an action for damages against the second respondent, Bureaua Naruai. He would not have been able to challenge Pitoi's title, which is indefeasible.

Once the Magistrates' Court had approved the transfer to Pitoi in case no. 401/86, the title thus obtained became indefeasible by virtue of section 4(2) of the Native Lands Ordinance Cap. 61. Section 4(2) provides as follows:

"4(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".

It is clear from that provision that indefeasibility arises from the court's decision to approve the transfer rather than entry in the register, which is evidence only.

There are two other matters we should briefly mention. The first is that the appellant also produced a letter dated 26 September 1994 from the Chief Lands Officer which states that the subject land (inter alia) was registered under Bureaua with his sister and was purchased by Pitoi Talia from Bureaua without his sister's consent as co-owner. The letter does not provide any factual basis to support the Chief Lands Officer's conclusion. If such conclusion was drawn from the records which were presented to us then it was without foundation. The letter itself has no evidentiary value. We wonder at the wisdom of the Chief Lands Officer expressing unsubstantiated opinions on matters which can only be properly decided by the court.

The other matter is that counsel for the appellant has cited the decision of this Court in the case of Marawa Eritane (HCLA 77/97) in support of her argument. That decision is not relevant to the present case.

As already mentioned, we found nothing wrong with the Single Magistrate's decision. Nothing in the further evidence tendered in this appeal sways us from that conclusion.

The appeal is dismissed.

THE HON R B LUSSICK
Chief Justice
(19/03/99)

TEKAIE TENANORA
Magistrate
(19/03/99)

BETERO KAITANGARE
Magistrate
(19/03/99)