Kaka v Tenou [1999] KIHC 21; HCLA 064.97 (26 March 1999)

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

HCLA 64/97

BETWEEN:

TAAKE KAKA
Appellant

AND:

KATATIA TENOU
Rep by Teaioro
Respondent

Mr B Berina for the Appellant
Mr D Lambourne for the Respondent

Date of Hearing: 26 February, 19 March 1999

JUDGMENT

This is an appeal from the decision of the South Tarawa Magistrates' Court (Lands) delivered on 1 July 1997 in case no. 223/97, in which the appellant's family were ordered to be evicted from the land Autengeangea 733o, effective 3 months from that date.

That decision is now appealed on the following ground:

"The learned Single Magistrate erred in law and in fact in failing to consider adequately the claim of the Appellant that her grandmother, N. TEKIMAU, was co-owner of the land on which she settled in that the registration carried out in CN 195/89 was simply the registration over the interest of N. UA in the land AUTENGEANGEA 733o which registration did not and could not have affected the title and interest of the Appellant's grandmother over the said land".

It was clear from the evidence before the Single Magistrate hearing the case that the present respondent was the registered owner of the subject land. A competing claim had been made by a person named Kaobunang Teweti but that claim was dismissed and the present respondent was confirmed as owner by the High Court in HCLA 131/89.

The present respondent's case in the lower court was that the appellant had settled on the land merely by the permission of Kaobunang Teweti and that there had been no lease. The respondent's contention was that once he took title, the permission previously given to the appellant to stay on the land ceased to exist and she should be evicted.

However, the appellant told the lower court that she had an interest in the subject land from her grandmother Nei Tekimau who, she claimed, was a co-owner. She produced to the lower court an extract from the Land Register which showed that the land stood in the name of Nei Tekimau. However, the Single Magistrate, accepting that the respondent's title had been confirmed by the High Court, ordered that the appellant be evicted.

Since the Notice of Appeal was filed, the missing link in the chain of title has come to light. It is case no. 33/82 in which all of the lands of Nei Tekimau were registered in the name of Nei Ua as sole owner. The present respondent inherited the subject land from Nei Ua.

In view of that decision, it is obvious that the appellant's ground of appeal has no basis and must fail.

However, before we could deliver our decision, the appellant sought leave to put forward a further argument. In her supporting affidavit, she deposes that her grandmother was not Nei Tekimau but Nei Tekimau's sister, Nei Tiba, and that Nei Tiba still has an interest in the subject land. We do not propose to entertain this argument. It was open to the appellant to raise it in the court below, but she did not do so. Nor did she raise it before us during the hearing of the appeal. The name of Nei Tiba did not arise in the proceedings in the court below and there was certainly no evidence to prove that Nei Tiba was a sister of Nei Tekimau, or that she had any interest in the subject land. Our conclusion, therefore, is that this further argument has been recently invented for the purpose of overcoming the effect of the decision in case no. 33/82.

We can find nothing wrong with the decision of the Single Magistrate. He was entitled to find on the evidence that the appellant did not have a lease or any other interest in the land, that the respondent was the sole registered owner and that he had not given the appellant permission to remain on the land.

The appeal is dismissed. The appellant and her family must vacate the subject land on or before 26 June 1999.

THE HON R B LUSSICK
Chief Justice
(26/03/99)

TEKAIE TENANORA
Magistrate
(26/03/99)

BETERO KAITANGARE
Magistrate
(26/03/99)