Kiribati Protestant Church Bikenibeu v Amitong [1999] KIHC 40; HCLA 049.98 (17 November 1999)

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

HCLA 49/98

BETWEEN:

KIRIBATI PROTESTANT
CHURCH BIKENIBEU
Appellant

AND:

MATIERA AMITONG
ARITI MOTE
Respondents

Mr T Teiwaki for the Appellant
Mr B Berina for the Respondents

Date of Hearing: 12 November 1999

JUDGMENT

This is an appeal against a boundary determination made by the Single Magistrate in case No. 7/98. The disputed boundary runs between the lands Aniti 667o/1 owned by the respondents and Aniti 667o/2e owned by the appellant. The appellant is dissatisfied with the boundary fixed by the Single Magistrate because it places the appellant's maneaba on land owned by the respondents.

The appellant's Amended Notice of Appeal lists 3 grounds, but one has been withdrawn. The grounds remaining to be considered are as follows:

1. The Learned Single Magistrate erred in law in treating the present respondents as legal owners when such land did not exist and was not owned by Tekanana when the purchase was made in C/N: 35/77.
   
2. Withdrawn
   
3. The Learned Single Magistrate erred in law in allowing the present respondents to carry out the boundary determination with the appellant on the basis that the present respondents own no land at the spot.
   

In support of Ground 1 it is submitted for the appellant that the evidence of the respondent Matiera Amitong in the court below established that when the respondents bought the disputed land it was covered by seawater. The respondents bought the land in 1977 from Nei Tekanana Mweretaka as evidenced by case No. 35/77. The appellant's argument is that, since the land was covered by seawater, it was a foreshore governed by section 3 of the Foreshore and Land Reclamation Ordinance Cap. 35 and that therefore Nei Tekanana did not own it and could not have sold it to the respondents. (Section 3(1) provides that, subject to certain rights, the ownership of the foreshore and sea-bed vests in the Crown).

We do not think that the evidence of the respondent Matiera in the lower court proves that there was no land at that particular place when the respondents purchased it in 1977. The evidence relied on by the appellant is Matiera's testimony in chief that "When we bought it, it was shore land (or marshland), when the tide was high you would drown in it. We bought it to fill it up". However, during his cross-examination, he also continually referred to the land he bought from Nei Tekanana as "shore land". We think Matiera, in using that expression, was referring to accreted land.

The history of the disputed land was contained in the documentary evidence before the Single Magistrate. The accreted land was originally an inlet between the mainland and a peninsula. In the late 1950s a person named Binatake Bone built a seawall across the inlet. In 1962, another seawall was built by a person named Torotoma Teraoi. As a result, the land between the mainland and the peninsula dried out. In 1974 a claim by Torotoma for a share of the accreted land came before the Lands Courts Appeals Panel in case No. 22/74. That court indicated that the owners of land adjoining the accretion were entitled to share in the accreted land. One of the owners mentioned was Nei Tekanana Mweretaka, owner of Aniti 667-o. In case HCLA 40/80 decided on 4.5.1981 the High Court made reference to land having accreted to the land Aniti 667-o. The High Court again dealt with the accreted land in its decision in HCLA 92/85 delivered on 11.11.85. The High Court in that case decided on which landowners were to share in the accreted land the subject of case No. 22/74. One of those landowners was Nei Tekanana, owner of Aniti 667-o.

Nei Tekanana later subdivided Aniti 667-o and sold a part – Aniti 667 o/1 – to the respondents in 1977 (case No. 35/77). The land bought by the respondents was accreted land which had accrued to Nei Tekanana's land Aniti 667o. The history just mentioned makes it quite clear that such land was in existence well before 1977 when the respondents bought it. The Foreshore and Land Reclamation Ordinance therefore has no application. Ground 1 is dismissed.

As regards Ground 3, the present appeal appears to be the first time that the respondents' ownership has been put in issue. Such an issue was certainly not raised before the Single Magistrate in the court below.

The appellant's argument is that the decision of the court in case No. 35/77, in which the respondents applied for approval of the transfer of the title to Aniti 667 o/1 to themselves, was incomplete, so that the respondents did not become the registered owners. The court's decision in that case was in these terms:

"The decision or the registration will be confirmed if we received the authority from all the issues of Nei Tekanana. It was seen and known that this woman's land had been distributed before by Turpin. And if there was a remaining land to Nei Tekanana, Matiera and Ariti would be registered on it".

It was clear from that decision that the court's approval would be forthcoming upon the receipt of an authority from all the issues of Nei Tekanana. The decision was not an approval in itself and thus the transfer could not be registered at that time (see section 64(1)(a) Magistrates' Courts Ordinance Cap. 52). There was evidence that Nei Tekanana's children, or at least some of them, had later sent a letter to the magistrates' court indicating their approval to the sale. What the respondents should have done then was to go back to the magistrates' court with their evidence in order to obtain the court's approval of the transfer. However, the fact that they have never done this does not afford the appellant any comfort. The respondents may not be the registered owners but this does not mean that they are not the owners.

The Single Magistrate in fact accepted the sworn evidence of the respondent Matiera Amitong that they were the owners, evidence that was not challenged by the appellant. Also before the Single Magistrate were the minutes of case No. 35/77 showing that the previous owner, Nei Tekanana, had gone to court with the 2 respondents in order to have the sale approved. There was also the letter from Nei Tekanana's children already mentioned. Also before the Single Magistrate was a Certificate of Ownership from the Lands and Survey Division showing the respondents to be the owners of Aniti 667o/1. Such a certificate does not constitute conclusive proof, but nevertheless its accuracy does not appear to have been challenged in the court below. There was thus sufficient evidence for the Single Magistrate to treat the respondents as a party entitled to apply for a boundary determination. Indeed, there were absolutely no grounds at all which would have entitled the Single Magistrate to disqualify them. It follows that Ground 3 must also fail.

Having disposed of the grounds of appeal, we would say in addition that, in our view, the procedure adopted by the Single Magistrate, his interpretation of the evidence and his application of that evidence to the establishment of the correct boundary cannot be faulted.

The appeal fails and is dismissed.

THE HON R B LUSSICK
Chief Justice
(17/11/99)

TEKAIE TENANORA
Magistrate
(17/11/99)

BETERO KAITANGARE
Magistrate
(17/11/99)