Mateko v Tion [2008] KIHC 15; Civil Case 5 of 2008 (24 April 2008)

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

High Court Civil Case 5 of 2008

Between:

Nei Tiaon Mateko for the family
Applicant

And:

Nei Teaioro Tion
Respondent

For the Applicant: Mr Michael Takabwebwe
For the Respondent: Ms Taoing Taoaba

Date of Hearing: 24 April 2008

JUDGMENT
(Ex Tempore)

Application for a writ of certiorari to quash the decision in CN 33/82. In that case Nei Ua had her name registered over a piece of land after her sister who had died. The decision has stood now for over 25 years. In HCLA 64/97 the High Court relied on it saying:-

Since the Notice of Appeal was filed, the missing link in the chain of title has come to light. It is case No. 33/82 in which all of the lands of Nei Tekimau were registered in the name of Nei Ua as sole owner. The present respondent inherited the subject land from Nei Ua.

In view of that decision, it is obvious that the appellant’s ground of appeal has no basis and must fail.

The points taken in the hearing of this application by Mr Takabwebwe were not mentioned in 1997.

Mr Takabwebwe in a long and careful submission has criticized the minute in CN 33/82 suggesting that the minute and decision may not be a genuine and proper record of the minute and decision of a properly and duly constituted Lands Magistrates Court of Law as usually prepared for such Court in 1982 or before or after 1982 and may be a forged document "smuggled in and deposited in the National Archives of Kiribati by an unknown person".

The minute is in Lands Court Minute Book No. 10 produced to the Court. It is one minute of many in the book. One cannot believe it could be a forgery. Certainly the minute is short and arguably defective in form but the substance is plain. Furthermore it has stood for over 25 years (an example of the defect in form is that the minute – and those before and after it – is undated) and was relied on by the High Court in 1997.

If it be a forgery then it would be a fraud. The accepted law in Kiribati (and other jurisdictions) is that fraud must be proved strictly. That is a standard of proof well beyond the balance of probabilities. Yet I could not find fraud in this case even of the merest balance of probabilities.

The application is refused.

THE HON ROBIN MILLHOUSE QC
Chief Justice