Tooki v Ruaia - Judgment [2007] KIHC 90; Civil Case 11 of 2007 (14 May 2007)

In the High Court of Kiribati
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 11 of 2007

Between:

Meaua Tooki for Issues of Mweretaka Tebwebwe
Applicant

And:

Issues of Nei Akoua Ruaia
1st Respondent

Issues of Tutu Tekanene
2nd Respondent

Issues of Nei Tatiku Tawa
3rd Respondent

For the Applicant: Ms Joelle Grover
For the 1st Respondent: Mr Mantaia Kaongotao
For the 2nd Respondent: Mr Karotu Tiba
For the 3rd Respondent: Mr Stephen Earl

Date of Hearing: 10 May 2007

JUDGMENT

The amended application has been worded primarily as one for judicial review, only in the alternative for an order of certiorari. As the decision, the subject of the application, was made in 1949 it is properly an application for certiorari rather than judicial review.

In a case in 1949 which the minutes shew was originally numbered 164 but which has been changed, for reason unknown, to 53 (cases originally numbered 165 and 166 were likewise respectively renumbered 54 and 55), the Lands Court sitting at Abaokoro with unimwane n aba (The Commissioner) being present, ordered the distribution of the lands of Tem Mweretaka.

The minutes are in an unusual form: there are seven paragraphs, each, to the left, with a description: the paragraph described as "Decision" is in the middle, not at the end:-

Land Terara and Terekaba should go to the first spouse and the second spouse should own land Natari in Teaoraereke.

The last paragraph (as the first) has the description "Timote":-

That the name of Ten Antemo mt mm over land namely Natari in Teaoraereke.

That the name of Tebaau with his sister over land Terara and Terekaba.

Whatever that may mean the paragraph does not seem to be a decision.

A decision is usually placed at the end of minutes, not in the middle because it is the conclusion of the case. Perhaps that is why a mistake may have been made by the scribe – perhaps tired, working late at night and in bad light – they may have worked hard and long in those days –in transcribing the decision in the minutes into the Lands Register. The scribe may, expecting the decision to be at the end of the minutes, have mistaken the name "Timote" for the words "Tia Moti" and may have assumed that what was written against the name Timote at the end of the minutes was in fact the decision. Certainly looking at the photocopy of the old Lands Register from the Archives that seems to be likely. The entry is:-

98M Antonio mt mm ...... CN 164/49.....

That does not reflect the decision in the minutes.

The assumption that a mistake was made is strengthened by two ticks on the last two paragraphs of the minutes as though shewing that the decision in the minutes had been transcribed into the Lands Register. There are no other ticks on the minutes.

The applicants, descendants of Tem Mweretaka, are now anxious that the Lands Register be rectified. Hence this application.

Early in the hearing counsel for all respondents either agreed the application should be granted or they left it to me to decide. Later in the morning when Ms Grover presented draft minutes of order Mr Kaongotao withdrew his consent on the grounds, if I understood him correctly, that the Register has stood unaltered for nearly 60 years and should not now be altered. For two reasons I do not accept Mr Kaongotao’s position: first because he went back on what he had earlier agreed – something much to be discouraged – and secondly because I have concluded that a mistake was made in transcription and it is desirable to correct it.

But how? The old Lands Register was burnt in the Registry fire. The Lands Commissioners have been for some years preparing a new register but their task is not complete. They are not using the old Register, a copy of which is in the Archives as the basis of their work. At present there seems to be no register to be amended, to be rectified.

Mr Tiba helpfully directed attention to section 64 of the Magistrates Courts Ordinance:-

(1) Each magistrates’ court shall keep registers in the form prescribed by the Chief Justice and shall therein register or cause to be registered - .....

(2) Only the Chief Justice, or a judge, the Chief Registrar, the presiding magistrate and the clerk of the court may make entries in the court registers.

(3) Each such entry shall be notified to the native lands registrar and to the Chief Lands Officer and shall make reference to the judgment or order in the court minutes on the authority of which the entry is made; and the reference shall include the number of the case or the page and number of the minute book where the judgment or order is recorded.

The title of Chief Lands Officer has now been changed to Director of Lands.

So as not to make an order of no effect, addressed to no one, I shall direct service on the Director of Lands and on the Lands Commissioners.

Using Ms Grover’s draft I suggest this declaration and order:-

Application for order of certiorari granted.

Order that case No. 53/49 be removed into this Court.

Declare

(1) That the judgment of the Lands Commission in CN 53/49, previously noted as 164/49, is to be upheld in the terms as it was pronounced by the Lands Commission, namely that:

(a) the lands Terara 721a and Terekaaba 757i are to be registered in the names of the issues of Mweretaka Tebwebwe’s first spouse; and

(b) the land Natari 794t is to be registered in the names of the issues of Mweretaka Tebwebwe’s second marriage.

Order:

(1) That all relevant public documents be amended to reflect paragraph 1.

TO: The Director of Lands
AND TO: The Lands Commissioners

Before making a final declaration and order I shall hear counsel.

Dated the 14th day of May 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice