Baia v Erekite - Memorandum [2007] KIHC 101; High Court Civil Case 89 of 2006 (23 April 2007)

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

High Court Civil Case 89 of 2006

BETWEEN:

TARIMWE BAIA
AHLING BAREREI
Applicants

AND:

BAUA EREKITE
1st Defendant

TIEBANE KATOKITA
2nd Defendant

TEINGOA EREKANA
3rd Defendant

ATTORNEY GENERAL iro
THE LANDS COURT of South Tarawa
4th Defendant

For the Applicants: Mr Banuera Berina
For the 1st Defendant: Mr Stephen Earl
For the 2nd & 3rd Defendants: Ms Taoing Taoaba

Date of Hearing: 19 April 2007

MEMORANDUM

Application for judicial review of case CN 260/04 or for certiorari in relation to it.

In CN 260/04 the first respondent, Nei Baua, purported to sell for $6,000 land Banounou 640n/3n to the second and third respondents Nei Tiebane Katokita and her husband Teingoa Erekana.

In CN 63/00 Nei Baua had sold the same piece of land to the first applicant, Nei Tarimwe. [It seems that there had been an earlier case in 1998, CN 190/98, as the minutes shew the Court saying, "This case is the continuation of the one done in the year 1998 ....."] The purchase price, it is agreed between the parties, was to be $7,000. Nei Tarimwe was not to pay in one amount but over time either in money or in goods. Nei Tarimwe claims that the whole amount of $7,000 was paid. Nei Baua says only $1,400 has ever been paid.

Probably in 2004 because, she says, the full $7,000 had not been paid, Nei Baua herself went to the Lands Office, told them Nei Tarimwe had been registered over the land by mistake and she was still the true owner: she persuaded the authorities to remove the name of Nei Tarimwe from the Register and restore her own name as owner. That this happened is confirmed in an affidavit sworn by Reei Tioti, Chief Land Management Officer:-

4. Some time in 2004 Nei Baua came to our office and explained that she did not sell the whole of her land to Tarimwe.
   
5. Unfortunately her story sounded convincing and as a result her name was restored to the register.
   
6. Soon thereafter we received the minutes relating to the sale of her land to Tiebane and Teingoa which we duly noted.
   
7. We have now been seen by Tarimwe and Ahling and I wish to confirm, after seeing the minutes of the sale to Tarimwe, that we have made a mistake in restoring the name of Nei Baua to the register.
   

Some time after Nei Baua’s name was restored to the register, in CN 260/04 she purported to sell the land to Nei Tiebane and to Teingoa who paid her $6,000 for it.

The facts are quite complex. I should first decide how much Nei Tarimwe gave Nei Baua for the land - either the full agreed price of $7,000 or only $1,400.

Nei Tarimwe and Nei Baua each gave oral evidence last Thursday in amplification of their respective affidavits. I much prefer the evidence of Nei Tarimwe. She produced a book (Exhibit P1) which, starting from the back, recorded payments she has made either to Nei Baua or to members of Nei Baua’s immediate family, payments in cash or in kind. Mr Earl did his best to impugn both the genuineness of the entries and their accuracy. After looking at the book and hearing the evidence of both ladies, I am satisfied the entries are genuine and I accept their accuracy. Nei Tarimwe also produced a summary of the entries (Exhibit P2), a document she prepared for the purposes of the hearing, shewing a total paid in cash or in kind of $6,017.50. She explained that there had been another book of record shewing more payments, bringing the total up to $7,000. This was to an extent, confirmed by Nei Baua who said that there had been entries in another book. Despite Mr Earl’s efforts to discredit Nei Tarimwe I accept Nei Tarimwe’s evidence about the second book as well.

Nei Baua was not a witness whose evidence I could accept where it conflicts with that of Nei Tarimwe. She volunteered that she told lies to the people in the Lands Office to get her land back. She admitted that, having succeeded in doing so, she did not approach Nei Tarimwe to tell her or to refund any money Nei Tarimwe had paid to her for the land.

CN 260/04 was heard in December 2004. In January 2005 two of Nei Baua’s children took proceedings in the magistrates’ court against Nei Tarimwe. Mr Earl tendered a summons dated 11January 2005, directed to Nei Tarimwe. The summons gives no clue as to the nature of the proceedings. Mr Earl asserted that it had to do with this application but so far it remains, for me, a mysterious irrelevancy.

I find, on the balance of probabilities, that Nei Tarimwe paid to Nei Baua the full purchase price agreed for the land, $7,000.

Dated the 23rd day of April 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice