Inatio v Inatio [2004] KIHC 223; Land Appeal 72 of 2003 (3 September 2004)

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

High Court Land Appeal 72 of 2003

Between:

IAON INATIO, BEIA INATIIO,
EMA INATIO, TOROWI INATIO
Applicants

And:

ROTIATA INATIO
Respondent

For the Appellants: Ms Botika Maitinnara
For the Respondent: Ms Taoing Taoaba

Date of Hearing: 3 September 2004

JUDGMENT

Application dated 12th February 2003 for certiorari pursuant to Order 61. Leave is ought for an order quashing the decision of the magistrates sitting at Kuria Magistrate’s Court on 4th November 1985 on the following grounds:

(i) the Magistrates acted in a way that no reasonable magistrates properly directing themselves could reasonably have acted by reason of their failure to comply with the provisions of the Native Lands Code

(ii) and/or alternatively the Magistrates made an error in law in transferring the whole of land 276o to Rotiata when the donor of the land only consented to giving away half.

From the minutes it appears that on 4th November 1985 on the application of Rotiata Inatio, the Court registered in his name land Tenanikaraba 276/o. In doing so they acted on a letter dated 15/11/84 in these terms:-

I request if you could register my son’s name Rotiata Binoka on half of my land Tenanikaraba 276/o which means his plot should be 276/o/a. The land distribution hasn’t been done yet but Inatio had told me prior his death to give it to Rotiata as his share. This land will be excluded when the rest of the lands are distributed.

Signed

Meren (Langley) Inatio

I certify that this letter is signed today by Meren in my presence.

Signed I certify that this is my mother’s

Irete Teannaki letter that she wrote before me.

Clerk of Court, Abemama

Signed

Iaon I Binoka

The minutes record Rotiata as saying that his “brother Iaon had consented to it”. Iaon is the first Applicant in these proceedings.

It will be immediately noticed that Nei Meren in the letter asked that Rotiata’s name should be registered on half the land whereas the court ordered his name to be registered over the whole.

Even more serious is that Iaon has now come to the Court saying that in November 1984 he was 18 years old and at school in Fiji, that he knew nothing of the application to transfer the land to his elder brother Rotiata, much less did he consent to it. He was in Fiji for two years and did not come back to Kiribati for holidays.

This amounts to an allegation of fraud. Fraud is not pleaded in the grounds on which relief is sought. Nevertheless in the light of the evidence we should consider fraud, the most usual ground for review after so long a time.

Iaon’s sister, Nei Ema, another of the Applicants, has corroborated Iaon’s evidence that Iaon was away in Fiji, not on Kuria at the time he was shewn as signing the letter. Both Iaon and Ema say that their mother who lived with them until her death in 1998, never mentioned the transfer. Nei Meren went on collecting rent from the land, part of the airstrip on Kuria, until her death. It was only after her death that Iaon, when going to collect the rent in January 1999 found the rent had already been paid over to Rotiata. Rotiata died in 2000.

According to Iaon’s affidavit in support of the application (paragraphs 7, 8, 9 and 10) after discovery of the transfer, the family took proceedings against Rotiata in the Kuria Magistrates’ Court. Rotiata delayed the hearing. The Clerk advised the case be transferred to Tarawa. Nothing happened. Iaon waited. Hearing that this court was to sit on Kuria in late 2002 Iaon made enquiries again to see what had happened. Still nothing. On advice he filed a Notice of Appeal and in November 2002 the case finally was transferred to Tarawa.

On 7th January 2003 Iaon for the first time had competent legal advice. The then People’s Lawyer, Nei Emma Hibling, advised bringing these proceedings.

The efforts between discovery in January 1999 of Rotiata’s registration and the beginning of 2003 were misguided but we do not think the Applicants, all lay people without easy access to legal advice, should be blamed for that. The fact is that they quickly, after discovering the transfer, tried to do something about it. As soon as they had legal advice, appropriate proceedings were taken.

The Court of Appeal suggested (without expressing any decided opinion) in two recent decisions (Land Appeal 2 of 2004 Tebau Uriam, Kaburerei Uriam, Taburongo Uriam v Borerei Uriam and Land Appeal 3 of 2004 Roote Tabaua & Ors v Karinawa Kaia & Ors) that a way round the 12 month time limit in making an application for review of a decision pursuant to section 81 of the Magistrates’ Courts Ordinance is to seek leave for the issue of the prerogative write of Certiorari. That is what these applicants have done. We should adopt the suggestion. We are fortified by the tentative opinion of the Court of Appeal and by reference to 28 Halsbury (4th edition) (para 818 Note 11).

The applicants took quite prompt if misguided action as soon as they became aware of Rotiata’s registration. That is good reason to extend until 13th February 2003 the time within which to make application.

Having dealt with extension of time we return to the facts. We have already canvassed the oral evidence. During his evidence Iaon was asked whether he had any document to confirm his absence from Kiribati in 1984. He said he had. Ms Maitinnara produced a letter dated 19/05/2003 from the Ministry of Foreign Affairs. The letter should have been proved but Ms Taoaba not objecting we received it. The letter:-

Re: Absence from Kiribati

This is to certify that according to our record of Immigration Incoming and Outgoing of Kiribati nationals for Overseas destinations and indicated that Mr Iaon Inatio Binoka has left Kiribati from 26/02/1984 and returned on the 15/12/1985 for his study in Fiji.

We gave Ms Taoaba, apparently not having known of the letter, an adjournment to check the accuracy of the facts set out. She did so and has conceded them.

The letter is decisive corroboration of Iaon’s and Ema’s affidavits and oral evidence. Iaon could not have signed the letter of 15/11/84 as he is purported to have done. He was not on Kuria: he was in Fiji: his mother was on Kuria: he could not have witnessed her signature to a letter.

In the light of the oral evidence and the letter it follows that Irete Teannaki’s recollection set out in paragraph 2 of his affidavit of
25th June 2004 (received by the Court but not tested by oral evidence) must be wrong.

The conclusion beyond reasonable doubt is that the letter of 15/11/84 purporting to have been written by Nei Meren Langley is, in part at least, a forgery. It was used fraudulently to secure registration of Rotiata’s name over the land Tenanikaraba 76/o. The fraud is sufficient reason to annul the decision of the magistrates.

We note that setting aside registration will allow a court to act, if it be so advised, on Nei Meren’s will dated 18/1/98 in which she disposes of “my land Tenanikaraba located at the airport in Kuria”.

The order of the Court is:-

1. Time within which to make application extended to 13th February 2003
   
2. Leave to make application granted.
   
3. Application for certiorari granted.
   
4. The decision of the Kuria Magistrates’ Court made on 4/11/1985 in case 84/85 quashed.
   

Dated the day of September 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice

BETERO KAITANGARE
Magistrate

RARATU IEITA
Magistrate