Rakunoua v Issue of Temoa [2003] KIHC 228; Land Appeal 56 of 2000 (23 October 2003)

IN THE HIGH COURT OF KIRIBATI
LAND JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

HIGH COURT LAND APPEAL 56 OF 2000

BETWEEN:

KOURABI RAKUNOUA MT MM
APPELLANTS

AND:

ISSUES OF N. TEMOA
ISSUES OF MAKAUA
ISSUES OF N. EMIRIA
ISSUES OF N. RAMAUA
RESPONDENTS

FOR THE APPELLANTS: MR BANUERA BERINA
FOR THE RESPONDENTS: MR JOHN O'SULLIVAN

DATE OF HEARING: 23 OCTOBER 2003

JUDGMENT

In 1984 (CN 104184) the appellant went to court and had himself registered over the land Kiboru 70211, Ioane Kourabi having died without issue. Neither his father's sisters nor their issue were parties nor were present in court. The appellant told the Court that the sisters had been given their shares in 1955 (CN 8155). The Court made no further enquiry. That was a pity. Had the sisters or their issue been before the Court in 1984, it may have come out that the appellant's father also had a share in 1955. The appellant did not tell the Court that and it was something the Court should have known to take into account.

The sisters and their issue did not discover for years that the appellant had had himself registered over Ioane's land. After they did they took the proceedings (CN 164199) from which this appeal comes.

At the hearing the appellant was cross-examined by Ms Joanne Fleer, then People's Lawyer. An extract from her cross-examination:-

Q. Do you agree that those minutes (from CN 104/84) were what you actually tell the court?

A. I believe that.

Q. Did the court asked you about your father's sisters?

A. Yes.

Q. You mentioned to the court that they have already had their shares.

A. Yes.

Q. So why did you tell the court that your sisters had also had a share when you knew that our father has had a share also?

A. It because I wanted to register myself upon the land.

Q. And the only way the court to allow you that is, that your father's sisters have got their shares.

A. That's it.

The Single Magistrate in his reasons:-

The effect of what the defendant did in bringing the case to court in CN 104/84 without summoning the plaintiff had deprived the plaintiff's right to properly argue their case not to land and further for not telling the court that his father had also share, like the women, which from what he said, the court subsequently acted upon is I think could be regarded as fraud.

As Mr Berina, for the appellant, reminded us, a court requires a strong case to be established before it will allow a judgment to be set aside for fraud. The respondents here are in a happy position of being able to rely on the appellant's admissions in cross-examination that he concealed the significant fact that in 1955 his father had been given his share as well as his sisters: that he concealed this "because I wanted to register myself upon the land".

Mr O'Sullivan, for the respondents, referred us to chapter 18 of Salmond & Huston on the Law of Torts (19th edition) where the elements of deceit (fraud) are set out.

Fraud having been established allows a magistrate's court to set aside the decision of an earlier magistrate's court.

The Single Magistrate was correct in finding fraud on the appellant's part. He came to the correct decision. That the appellant perpetrated the fraud 15 years before the 1999 proceedings does not matter: Length of time does not cure fraud.

Were the decision in 104184 to stand then the appellant would be benefiting from his own wrong, misleading the court as to the effect of the decision in 8/55, concealing that his father had received a share as well as the women. That would be a distasteful result.

The appeal is dismissed.

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE

BETERO KAITANGARE
MAGISTRATE

RARATU IEITA
MAGISTRATE