Rakunoua v Temeamea [2024] KIHC 42; HCLA 20 of 2021 (17 September 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT LAND APPEAL 20 of 2021

BETWEEN: Maroua Rakunoua (for issues of Kourabi Touru)
Appellants

AND: Kourabi Temeamea (for issues of Namaere Toaki)

1st Respondent

AND: Tiaoti Robuti (with sibling for issues of Ema Kourabi)

2^nd Second Respondent

AND: Temarena Tebaara (with issues of first & third spouse for issues of Ema Kourabi)
3^rd Respondent

Date of Hearing: 18 June, 20 August 2024
Date of Judgment: 17 September 2024

Appearances: Ms Taaira Timeon for the Appellants
Ms Taoing Taoaba for the 2^nd Respondent
Ms Botika Maitinnara for 1^st and 3^rd Respondents

JUDGMENT

1. Background
   

1.1. Kourabi Toauru’s lands, which include land plots Takabito 718i and Tebanga 717e in Eita, Tarawa and others as shown in the copy of the land register tendered as evidence in the magistrate court, are claimed to have been transferred by way of fraud from Kourabi Toauru to Ema Kourabi and siblings.

1.2. Minutes of CN 84/48 proceedings, dated 5/11/48, is about the de-registration of Kourabi Toauru and registration of Ema Kourabi and siblings over their father’s lands, Kourabi Toauru after he passed away.
1.3. This transfer of title is claimed to be fraudulent, firstly, because the minutes were not signed, and, secondly, because the said Kourabi Toauru is claimed to be the plaintiffs’, now appellants', ancestor, not the father of Ema Kourabi and siblings. The Single Magistrate considered this action taken by the said Ema and siblings to be properly done through the court and supported by the land register, therefore dismissing the case. The plaintiffs disagreed with the decision, hence the appeal.

2. The Appeal
   

2.1. Ground of Appeal

One ground was filed in support of the appeal as quoted below from the Appellant’s Notice of Appeal;

“The Single Magistrate erred in law in dismissing the application and the reason to support its decision was based upon the grounds that there was insufficient evidence established before the court. The decision was erroneous in law because, on the face of the evidence laid before the court, there was strong and compelling evidence to support its finding that there was fraud. The evidence of the witness Nei Maroua Rakunoua was unchallenged as there was no cross-examination by the Respondens and there was no evidence adduced to support their defence. The evidence stood was the unchallenged evidence of Maroua Rakunoua sufficient for the court to conclude that the allegation of fraud was made out. The decision was against the weight of the evidence.”

3. Principle in deciding alleged fraud in land cases.
   

3.1. The Single Magistrate in Betlan 81/21 based his decision on the principles established in the case of Bukaineti v Tekimwa [2007] KICA 7; Land Appeal 05/2007 (20 July 2017). The relevant paragraph from Bukaineti is quoted below for ease of reference:

“The person making the allegation must prove that the evidence or statement challenged was a false statement of fact, that the person making it knew it was false and that it was intended that the person or court to whom it was made would act on it. The person making it must have known that the statement challenged was dishonest and morally wrong, and that it was made with intent to deceive.

The standard of proof required is on the balance of probabilities, but because of the serious nature of an allegation of fraud, there must be strong, convincing evidence that the statement was made knowing it was false and with intent to deceive. Although that may be proved by circumstantial evidence, the evidence must be compelling and allow no other reasonable explanation. Thus, fraud is difficult to establish. Many of the cases we have seen in this jurisdiction where fraud is alleged fall far short of what is required to prove it.”

4. Submissions and Court’s Analysis
   

4.1 Counsel for the appellants relied on Maroua Rakunoua’s affidavit and minutes of the CN 84/48 proceedings and argued that the evidence provided in the said documents is strong and sufficient enough to prove the elements of fraud as advocated in the case of Bukaineti.

4.2 The appellants based their argument on Maroua’s evidence showing a family tree that showed them to be descendants of the original owner of the lands, Kourabi Toauru. In their Counsel’s submission in Betlan 81/21, she stated that the family tree shown in the minutes of the said CN 84/48 proceedings was false as Ema Kourabi and siblings were not children of the land owner, Kourabi Toauru. The appellants argue that the Kourabi Toauru referred to in CN 84/48 is their descendant, Kourabi, not the father of Ema Kourabi and siblings. This was their primary evidence in support of the alleged fraud in CN 84/48.

4.3 Maroua also stated that CN 84/48 minutes was not signed and should not be considered valid. Regardless, the respondents responded to this point in the lower court by saying that the minutes carry the signature and stamp of the Archives Office, which was always accepted by the courts: the Magistrates and High Court. This second argument was not raised on appeal; therefore, it is not an issue.

4.4 Paragraph 9 of the appellant’s Counsel’s submission only listed four (4) main issues claiming to be the unchallenged evidence of Maroua Rakunoua on which they based their main argument; such evidence is listed below;

• - a) The respondent's grandparents, Emma and Tekatarake Kourabi, did not come from the family lineage of Kourabi Toauru. They have a different father,
• - b) The land register book of Kourabi Toauru was the appellant's ancestor, and they produced the family tree that remained unchallenged during cross-examination,
• - c) The respondents did not produce the family tree to negate the family tree of the appellants,
• - d) Kourabi Toauru, the appellants’ ancestor, had a special sitting position at Eita maneaba (boti) that the appellants carried on to occupy that boti until now, but not the respondents.
  

4.5 Ieremia Betero was the appellant’s second witness. He told the magistrate court that he was related to the appellants as their ancestors, Kourabi and Nei Bakitakoto, were siblings. He claimed the respondents were not associated with Kourabi Toauru. He further stated that he did not know the respondents or their family lineage. Although he claimed to be related to the appellant, he could not state the appellant's family lineage from Kourabi when cross-examined.

4.6 The appellants claimed that the respondents did not contest Maroua Rakunoua and Ieremia Betero’s evidence in Betlan 81/21, nor was this evidence taken into account by the magistrate court in its decision. The appellants argued that since this was the only evidence before the magistrate court in Betlan 81/21, it was enough to prove the alleged fraud.

4.5. In reply, the respondents agreed with the Single Magistrate’s findings that the alleged fraud could not be proved as evidence produced by the appellants was insufficient to prove the elements of fraud pursuant to the Bukaineti principle.

4.6. The second respondents, through Counsel, argued that the plaintiffs, now appellants, have the burden of proof to provide strong and compelling evidence that allows no other reasonable explanation than the commission of fraud; hence, the respondents owed no duty to disprove it. Even though the respondent did not call evidence, the Single Magistrate could not find fraud from the only evidence before it, which was the appellant’s evidence.

4.7. The first and third respondents, through Counsel, also submitted the same argument that it was wrong to think that because the only evidence before the magistrate court was the appellants’, the magistrate court must allow their claim. Both Counsels submitted, and we agree, that the magistrate court is entitled to come to its judgment when it finds no compelling evidence to direct them to find fraud, even if the other party called no evidence.

4.8. The respondents also submitted that there was no fraud in the proceedings of CN 84/48 as the case was about the transfer of title of lands from the deceased father, Kourabi Toauru, to his children, Emma Kourabi and her siblings.

4.9. Respondent Counsels also submitted on the respondents’ indefeasibility of title over the disputed lands. Counsels stated that after more than seventy years (70), from 1948 to 2021, the respondents have lived on the lands without any challenge from the appellants or their ancestors. They have enjoyed their right over their lands for more than 70 years.

4.10. We considered the proceedings on appeal, Betlan 81/21, together with the arguments of both parties before us and have to agree with the decision of the magistrate court for the following reasons;

• - The only evidence produced in Betlan 81/21 that suggested the alleged fraud in relation to CN 84/48 was the family tree produced by Maroua Rakunoua, which was different from the family tree produced before the court or the Commission in 1948.
• - Maroua Rakunoua, who was not even born when CN 84/48 was decided, claimed that Kourabi Toauru was their ancestor and not the father of Emma Kourabi and siblings (respondents’ grandparents).
• - Maroua produced their family tree, showing the appellants as the fifth generation of the original owner, Kourabi Toauru. So, from 1948 to 2021, their elders did not challenge the registration of Emma and her siblings after their father, Kourabi Toauru. There was also evidence that the respondents resided on the disputed lands since registration. They did not hide this fact from the appellant or the appellant’s ancestors.
• - As stated above, CN 84/48 was about the deregistration of Kourabi Toauru and the registration of his children, Ema Kourabi and siblings, over his lands after he passed away, so, being the rightful heirs of the said Kourabi, their registration was approved. The magistrate court in Betlan 81/21 considered Maroua’s evidence about the alleged fraud but was not convinced there was fraud in CN 84/48.
• - We agree. As per Bukaineti, there must be strong and compelling evidence by the plaintiff/appellant that would convince the court in Betlan 81/21 of the existence of fraud in the proceedings done 70 years ago in CN 84/48. The appellants cannot simply claim that the family tree they produced before the magistrate court was the correct one and that the respondents’ family tree produced in CN 84/48 was a fraud because it is different. This alone was not substantial evidence to prove fraud. Their evidence did not even refer to the 1948 minutes to identify who committed the fraud.
• - Moreover, the proceeding in CN 84/48 was straightforward as it was about the deregistration of Kourabi Toauru’s title from his lands and the registration of his children, Emma Kourabi and siblings, over these lands. The court/commission in 1948 accepted the family tree of the respondent’s grandmother (Emma Kourabi), showing that she was the daughter of Kourabi Toauru. Therefore, the Commission allowed her registration after her father's death (Kourabi Toauru).
• - Seventy-three years later, the appellants, through their witness, Maroua Rakunoua, tried to challenge the respondent's registration by producing a different family tree. This witness, Maroua, was not even born when the proceeding of CN 84/48 was conducted; she was only 70 years old in 2021 when she gave her evidence against the respondents’ family tree. The magistrate court was entitled to come to this decision as there was no strong and convincing evidence before it to find fraud.
• - The evidence of the appellant’s second witness, Ieremia Betero, could not support the allegation of fraud as well. His evidence was supposed to confirm the appellants’ relations with Kourabi Toauru, yet he could not explain to the magistrate court the appellants’ family lineage to Kourabi Toauru.
• - Therefore, we agree with the magistrate’s decision that there was no fraud. The respondents have an indefeasibility title over the lands of Kourabi Toauru.
  

ORDER

4.1. For the above reasons,

1. the appeal is not allowed;
   
2. the decision in Betlan 81/21 is affirmed, and
   
3. Cost to be paid to the Respondents, to be taxed if not agreed.
   

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice

TITAN TOAKAI RITETI MANINRAKA
Land Appeal Magistrate Land Appeal Magistrate