Attorney General v Nakau - Judgment [2005] KIHC 42; 51-02 (20 April 2005)

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

High Court Civil Case 51 of 2002

Between:

ATTORNEY GENERAL
Plaintiff

And:

KABOTAU NAKAU
BEIATAU KABUMAROU
BOBOUA ANTONIO
IOANE TERAIBURE
KABOBO TEARAWATU
AARON TEITIKAI
KIMEATA KABUMAROU
MAURE BENIAMINA
MEETI TEEBA
MOIUA ITAAKE
MOTEE KABOTAU
NTARIE TAWITA
TABERA NAKAU
TABURIMAI TEARAWATAU
TAMWARITI IKAUEA
TARE TETABO
TEAIKORIRI KABOTAU
TEBOKA MOREI
TEIWAKI TAUN
ATANIUEA KABUMAROU
ITAAKA RABAERE
TAKE ANGKA
TEARIKI KABUMAROU
TETABO BARENABA
TITOA KABOTAU
Defendants

For the Plaintiff: Mr David Lambourne, Solicitor General with Mr Birimaka Tekanene
For the Defendants: Ms Jennifer Troup

Dates of Hearing: 13 & 14 April 2005

JUDGMENT

Action by the Republic for the recovery of possession of seven plots of land at Temakin, Betio. The plots have been occupied for some years (there is no evidence of how long) by the 25 defendants. The writ for possession was issued on 14 November 2002 and served on each defendant. No defendant entered an appearance. Judgment for the plaintiff by default was entered against 17 defendants on 11 December 2002 and against the remaining 8 defendants on 30 June 2003. An application by the first defendant, Kabotau Nakau, to set aside the judgment against him was filed in August 2003 but did not proceed. Kabotau made a second application in March 2005. On 14 March 2005, by consent, I ordered that all the judgments by default entered in December 2002 and June 2003 be set aside. Until now the defendants have remained in possession.

The defendants filed a defence. The ground of defence pleaded is that the persons who had granted 99-year leases from 1 January 1954 to the Government of the Gilbert and Ellice Islands Colony (of which the Republic is the lawful successor) “were not the owners of the lands and were not entitled to lease the lands”.

Mr Tebutonga Ereata, Director of Lands, gave evidence for the plaintiff. In 1947/48 the Lands Commission entered in the old Tarawa Lands Register the names of owners of land at Temakin, Betio. The Solicitor General led the Director through each of the 7 titles by reference to the old Tarawa Lands Register (in the late 1960’s the Register was split in two, the South Tarawa Lands Register and the North Tarawa Lands Register) to establish the right of the respective owners to grant leases. Mr Ereata in this way traced the title of each owner who granted a lease.

Ms Troup was able to point to several omissions in some entries in the register. The omissions do not invalidate the entries: de minimis non curat lex. Ms Troup also pointed to an irregularity in the registration by the Lands Court of the title of several of the owners who granted leases. Pursuant to section 20 of the Native Governments Ordinance claimants to titles were to be present in court “throughout the hearing of the case”. The Lands Court minutes which the Solicitor General tendered shewed that several claimants were not. I regard these as procedural errors. A procedural error does not, as a rule, invalidate the proceedings. I do not regard these procedural errors as invalidating registration. The Solicitor General pointed out that even if they did that would not help the defendants: it would merely have meant that other persons remained the owners: those persons were not those through whom the defendants are claiming title: the defendants’ claims would not be advanced.

Kabotau Nakau was the only witness for the defendants and spoke for them all. All defendants claim to be descendants of the father of Nei Kitaea who, the defendants assert, was the true owner of these lands from some time before the War. Nei Kitaea died issueless some time after the War.

During the clean up of Betio after the War the colonial government allowed persons to settle on the lands as a reward for their work. The lands still belonged, Kabotau claimed, to Nei Kitaea and the settlements were without her consent. Then by mistake (because Nei Kitaea remained the rightful owner) the Lands Commission entered the names of the occupiers of the lands as the owners. The Lands Commission acted pursuant to the Native Lands Commission Ordinance. Sections 10, 11 and 12 are the relevant sections. Section 10 set out the procedure in cases where claims were not disputed. Section 11 gave a right of appeal. Section 12 provided that where there was no appeal the decision of the Commission was final.

Nei Kitaea would have had a right of appeal under section 11 but apparently did not exercise it nor in the more than 50 years since her time have any of those, Kabotau’s forebears, who he claimed should have inherited through her, attempted to appeal against the registrations.

Entries in the Lands Register give indefeasibility of title to the land (section 4.1 of the Native Lands Ordinance) to those whose names appear as owners. The title of those whose names appear in the Register cannot be challenged.

The persons who granted the leases to the colonial government were those whose names appeared in the Register as owners at the time the leases were granted. They could grant the leases as they had title of ownership to the respective pieces of land over which they granted the leases. Their title to do so could not have been challenged in the 1950’s when six of the seven leases were granted (nor for the other lease in 1964): the more so now can there be no challenge after more than 50 years.

The leases on which the Republic relies in claiming possession of the lands are valid. They entitle the Republic to possession.

I am sure that Kabotau and no doubt all the other defendants are genuine in their belief that they are entitled to occupy the lands, that in some unexplained way, their ancestors were cheated of the land. Whether their belief is justified or not, the law unfortunately for them, is to the contrary. For two reasons: the first is the indefeasibility of title established by the entries in the Lands Register: the second is that the principle of certainty of title requires that after 50 and more years rights acquired so long ago and unchallenged since should not be disturbed.

There will be judgment for the plaintiff. I shall hear the parties as to the orders I should make.

Dated the 20^th day of April 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice