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Kautabea v Kaitabo [2001] KICA 6; Land Appeal 11 of 2000 (5 April 2001)

IN THE KIRIBATI COURT OF APPEAL
LAND JURISDICTION
HELD AT BETIO, KIRIBATI

Land Appeal No. 11 of 2000

BETWEEN:

TEUEA KAUTABEA
(WITH BROTHERS AND SISTERS)
Appellant

AND:

TEUTU KAITABO
MANGOUA KAITABO
ISSUES OF NEI TEUEA BAIBUKE
Respondents

Before: Casey JA
Bisson JA
Tompkins JA

Counsel: Mr T Teiwaki for the appellant
Mr B Berina for the first and second named respondents
Ms E Hibling for the third named respondent

Date of Hearing: 4 April 2001
Date of Judgment: 5 April 2001

JUDGMENT OF THE COURT

These were two cases heard separately in the Single Magistrate's Court of South Tarawa. The first of these concerned the first and second respondents. Judgment was given on 4 December 1996 that Teuea Kautabea mt owns Tannakonimatang 787a. From this decision there was an appeal to the High Court.

In the other case judgment was given on 15 January 1998 and concerned the third respondent. This case also concerned the land Tannakonimatang 787a.

These respondents sought registration of title over the said land and cancellation of the previous registration in the name of Kobaeriki. The judgment says,

The concerned land has then been passed to Atitai. Despite that, the said problem with the land 787a was that it was not noted correctly in the Land Register, instead the land was recorded as 787e and was given to Atitai from Nei Marebu.

From this judgment the third respondent appealed to the High Court upon the ground that,

The Single Magistrate erred by misconstruing the effect of case C13/49 (a decision of the Lands Commission) which was to reregister the name of Atitaai over land Tannakonimatang 787a. As such, from that time Kobaeriki (and his successors in title, the Defendants) had no title to the subject land. As there has been no case since C13/49 which deals specifically with land Tannakonimatang 787a, the Plaintiffs, as beneficiaries of the estate of Atitaai, are entitled to registration over the subject land.

Both appeals were heard together in the High Court where a new issue was raised by Mr Teiwaki namely that in the vernacular minutes of case 13/49 there had been fraudulently added in handwriting "(and) Tannakonimatang" after the typewritten word "Kaburoronteaua". The translation of these minutes is as follows,

Kabaua is complaining about Kobaeriki in respect of lands Kaburoronteaua 736u and Tannakonimatang 787a. From what he says it is clear that it is not a claim but a distribution after the death of Te Atitai, who owed half of these lands as a result of Grimble's Land commission. The Commission's scribe made a mistake by registering those lands under the names of Kobaeriki and his mother Nei Marebu.

Judgment: The name of Te Atitai is to be entered in the Land Register, and the name of Nei Marebu is to be cancelled because Kobaeriki's name was registered after he, the name of Kobaeriki should also be cancelled from over lands Kaburoronteaua and Tannakonimatang because he said that they were Nei Teutu Taie's lands.

The ex tempore judgment of the High Court in its Land Jurisdiction is brief. We set it out in full,

This is a most complicated matter, the history of which goes back to 1949. In case No. 13/49 Te Atitai was given title to land 787a Tannakonimatang. The appellant who is Ms Fleer's client is a descendant of and inheritor from Te Atitai. Despite a number of cases since then nothing has happened to deprive the appellant of title to that land. The learned single magistrate was in error to believe that it had.

Mr Teiwaki for the Respondents has founded his argument on an allegation that in 1949 there was a fraudulent alteration to the Minutes and the name Tannakonimatang has been added in handwriting. After discussion between ourselves we cannot accept his argument. Fraud would have to be proved strictly and after 50 years it is far too late to be able to do that. Accordingly Mr Teiwaki's argument fails and with it the case for the respondents.

We have heard this appeal with the appeal in 18/1997. It appears that the appellants in each appeal claim title to the land. That is something which will have to be decided in the Magistrate's Court, on evidence. Mr Teiwaki has asked that his clients also be entitled to make their claims and we allow that too. The result is that the 2 appeals are allowed and the matters returned to the Magistrates' Court for determination in accordance with these reasons.

In this Court Mr Teiwaki has filed an amended Notice of Appeal as follows,

1. That the learned Chief justice erred in law and in fact in ruling that there was no fraudulent alteration to the minutes when on the face of the record fraud was involved.

2. The learned Chief justice erred in law and in fact in holding that Te Atitai was given title to Land Tannakonimatang 787A and the present respondents were inheritors from Te Atitai and nothing had happened to deprive them of title to that land.

3. That the learned Chief Justice misdirected himself in fact and in law by not taking into account the decisions in case numbers 15/53 and 121/60, which confirmed that Lands Tannakonimatang 787E and Kaburoronteaua 736M belonged to Te Atitai and nothing else.

In support of this first ground that there was a fraudulent addition to the minutes, his written submissions are,

"1. The word "and Tannakonimatang" appears in pen and not type-written like the whole records; and

2. The handwriting is not the same as the signature of the Land Commissioner; and

3. The last sentence of the judgment in I-Kiribati refers to a particular "land" and not "lands" as in the translation. The last sentence of the judgment should read "The name of Kobaeriki should also be cancelled from over land Kaburoronteaua because he said that it was Nei Teutu Taie's Lands."

We can see the point he is making but the insertion of the handwritten words is also open to the interpretation that it was correcting an omission bearing in mind that the opening sentence of the minutes contains a reference to Tannakonimatang 787a as well as Kaburoronteaua 736u.

Whether or not the added words were fraudulently inserted is a question of fact which is not for this Court to answer. This ground of appeal accordingly fails.

The second ground can be disposed of quite simply. Case 13/49 gives Te Atitai title to Tannakonimatang 787a. that is recorded in the Register No. 177. He has an indefeasible title.

Referring now to the third ground of appeal, Ms Hibling has submitted that case 15/53 makes no reference to any lands and is therefore irrelevant. Similarly case 121/60 concerned lands other than 787a. Mr Berina submits that this case is also irrelevant. In fact when case 121/60 was heard (10 November 1960) Kobaeriki did not own Tannakonimatang 787a (see Case 13/49 of 5 March 1949). The appellants have not referred us to any Register or Court decision which has taken away Tannakonimatang 787a from Te Atitai and returned it to Kobaeriki. The third ground also fails.

The appeal is dismissed. We agree with the High Court that the dispute as between all parties should be fully investigated and dealt with in the Magistrates' Court.

Casey JA
Bisson JA
Tompkins JA