Attorney General v Nakau - Judgment [2005] KIHC 51; 31-05 (23 August 2005)

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

High Court Civil Case No. 31 of 2005

Between:

ATTORNEY GENERAL
Plaintiff

And:

KABOTAU NAKAU
N. TEITI TAKINOA
TEMATANG TATAUA
MARETA KAIREREITI
N. MARIA KAIRIRIETA
MIKAERE KAIRIRIETA
N. TEERA KAUTU
ANTONIO KAIRIRIETA
Defendants

For the Plaintiff: Mr David Lambourne, Solicitor General and Mr Birimaka Tekanene
For the Defendant: Mr Glenn Boswell

Date of Hearing: 17 August 2005

JUDGMENT

The defendants and others, no doubt their families, have been occupying land known as Takoronga 809i since the beginning of this year. The land at the eastern end of Betio is on the ocean side in the vicinity of a Japanese bunker and the two guns. The plaintiff Government, through the Attorney General, claims possession of the land by virtue of a 99-year lease running from 1 July 1970. These proceedings are for possession. In their Defence the defendants claim to be the descendants, either directly or collaterally, of Tekeaua Morei, once the registered owner of the land.

The Director of Lands, Mr Tebutonga Ereata, explained who the successive owners of this piece of land have been since the Lands Commission re-established the boundaries on Betio after the War. On the recommendation of the Land Commission Tekeaua Morei was registered over Takoronga 809. [I notice from the Final Report of the Commission that Tekeaua, a member of the committee elected to work with the Lands Commissioner, become the second largest landholder on Betio.]

In case No. 73/69 heard at Abaokoro on 25 April 1969 “T. Ataniman K.” was registered after Tekeaua Morei as owner of Takoronga 809i. Ataniman Karaeba is shewn in the Lands Register as the owner of Takoronga 809i by transfer from Tekeaua Morei. On 4 June 1970 Ataniman leased the land to the Government of the Gilbert and Ellice Islands Colony (of which the Republic of Kiribati is the lawful successor) for a period of 99 years from 1 July 1970. According to the notation on the lease the lease was confirmed in case No. 1/70 and approved by the Resident Commissioner on 30 September 1970.

Since 1987 a number of plots within Takoronga 809i have been subleased but the land which the defendants are now occupying had remained unoccupied.

Section 4(1) of the Native Lands Ordinance confers indefeasibility of title. The title of those whose names appear in the Lands Register cannot be challenged.

As a rule the only exception to indefeasibility is fraud, strictly proved. There is no suggestion of fraud here.

Mr Boswell has argued that the Magistrates’ Court in case No. 73/69 made such serious procedural errors as to justify setting aside its decision. In his written submission Mr Boswell argued that the errors were mandatory procedural errors: the title ”granted was obtained in completely procedurally improper circumstances that flagrantly flouted the applicable law”. He based the submission on the minute of proceedings, the English translation of which is:-

73/69 Confirmation of the lease at Bonriki 10 years

No one came, just the lease document.

Decision: The magistrates agree that T. Ataniman K. will be registered after Tekeaua Morei over these lands: Teabantoka 608a (3N), Takoronga 809i (11N), Temoaniwae 825a (1B).

Section 21 of the Native Lands Ordinance 1956 was, in relevant part:-

(1) The Court, either of its own motion or on the application of any party, may summon any person subject to its jurisdiction to attend to give evidence, or to produce documents, or to be examined ........

------

(3) In all matters before the Court the parties or their representatives or, in the case of a party who has failed to appear, his representative as appointed under sub-section (2) above shall be present throughout the proceedings: .....

(4) The following procedure shall be observed by the Court:-

• (a) A statement of the matter in issue shall be made to the Court by the applicant if it is in the nature of a claim against the other party or by the Registrar if the matter arises out of the Court’s own motion.
  
• (b) If there is an applicant, the Court shall first hear his evidence together with that of any witnesses who he wishes to call, and shall then proceed to hear the evidence of the other party together with that of his witnesses. If there is no applicant the Court may call such witnesses and in such order as it thinks fit..........
  

Mr Boswell complained that “no one came, just the document” : no one was present to comply with the requirements of subsections (1) and (3) of the Section.

Assuming (which I hesitate to do) that the minute is a full report of the proceedings there may have been procedural errors. I said in HCCC 51/02, the Attorney General vs Kabotau Nakau and Others that “a procedural error does not, as a rule, invalidate proceedings”. Mr Boswell argued that these were mandatory procedural errors so serious as to be exceptions to the rule. The minute is “spartan”, as Mr Boswell remarked. It may or may not be a full and accurate report of proceedings. From my experience of court minutes I am unwilling to base a decision on the form or content of a minute unless the minute is confirmed by other evidence.

It may be as Counsel suggested (this is speculation) that when the case to register the lease from Tekeaua to the Government was called on, it was realized Tekeaua was dead. The Court thereupon considered who should be the successor in title to Tekeaua and registered Ataniman. Mr Boswell argued that by then the case had become the distribution of a deceased’s estate: all those interested should have been summoned before a distribution was made.

In support of his argument he cited three authorities:

R v Pontypool Gaming Licensing Committee, ex parte Risca Cinemas Ltd ((1970) 3 All ER 241)

London & Clydeside Estates Ltd v Aberdeen District Council & Another ((1979) 3 All ER 376)

A J Burr Ltd v Blenheim Borough Council ((1980) 2 NZLR 1).

I do not have direct access to the last case and use Mr Boswell’s submission to quote from it:-

When a decision of an administrative authority is affected by some defect or irregularity and the consequence has to be determined, the tendency now increasingly evident in administrative law is to avoid technical and apparently exact (yet deceptively so) terms such as void, voidable, nullity, ultra vires. Weight is given to the seriousness of the error and all the circumstances of the case. Except perhaps in comparatively rare cases of flagrant invalidity, the decision in question is recognised as operative unless set aside. The determination by the Court whether to set aside or not is acknowledged to depend less on clear and absolute rules than on an overall evaluation; the discretionary nature of judicial remedies is taken into account.

With respect I agree with Cooke J and in particular with the last sentence I have quoted. I have to make “an overall evaluation” in coming to a decision. Although in case No. 73/69 it was a court, not “an administrative authority” I regard the principle as equally applicable.

If Case No. 73/69 had been heard in April 2005 and not over 36 years ago, in April 1969, Mr Boswell would be on much stronger ground. It should have been possible to find out what really did happen in the proceedings. After so long it is probably impossible. It seems no one claiming to be interested in the distribution of Tekeaua’s estate came forward at the time nor has anyone come forward until now. The defendants claim to be the descendants of Tekeaua but there must have been several generations since Tekeaua and no one has taken any proceedings either for review under section 81 of the Magistrates’ Court Ordinance or for judicial review. It now is just too late. For two reasons: the first I have mentioned, the difficulty of finding out facts: the second, certainty of title, the principle of certainty. Once rights are established by law they should not be disturbed. The longer rights have been established the less likely they are to be disturbed. Ataniman’s rights were established in 1969.

I have to make “an overall evaluation”. Doing so I conclude that whatever errors (if any) were made in case No. 73/69 they were procedural but not of such gravity as after all this time to invalidate the proceedings.

The transfer from Tekeaua Morei to Ataniman Karaeba was valid and Ataniman could grant the lease. The Government is the lawful lessee of the land Takoronga 809i: it is entitled to undisturbed possession. The defendants have no right to possession.

It perhaps will be of no comfort to the defendants but if they had succeeded in this case it would not have got them far. If a link in the chain between Tekeaua and the Government as the lessee had been broken, what then? Who would be entitled to possession? Not the defendants unless they could prove their claims to be descendants of Tekeaua. The family tree (Appendix H to Lands Commission (or more fully the Betio Boundary Re-Establishment Commission, 1947) Report) shews Morei’s marriage to “Maribu of Temakin” but no descendants. Presumably “Morei” to either Tekeaua or his father. Thankfully it should never be necessary to have to decide that.

As it is the Government will have an order for possession of the land now occupied by the defendants.

I shall hear the parties on the form of the order.

Dated the 23^rd day of August 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice