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Nakau v Attorney-General [2005] KICA 8; Civil Appeal 01 of 2005 (8 August 2005)

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

Civil Appeal 1 of 2005

BETWEEN

KABOTAU NAKAU
BEIATAU KABUMAROU
BOBOUA ANTONIO
IOANE TERAIBURE
KABABO TEARAWATU
AARON TEITIKAI
KIMEATA KABUMAROU
MAURE BENIAMINA
MEETI TEEBA
MOIUA ITAAKE
MOTEE KABOTAU
NTARIE TAWITA
TABERA NAKAU
TABURIMAI TEARAWATAU
TAMWARITI IKAUEA
TARE TERABO
TEAIKORIRI KABOTAU
TEBOKA MOREI
TEIWAKI TAUN
ATANIUEA KABUMAROU
ITAAKA RABAERE
TAKE ANGKA
TEARIKI KABUMAROU
TETABO BARENABA
TITOA KABOTAU
APPELLANTS

AND

ATTORNEY GENERAL
RESPONDENT

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for Appellants: Glenn Boswell
Counsel for Respondent: David Lambourne, Solicitor-General

Date of Hearing: 3 August 2005
Date of Judgment: 8 August 2005

JUDGMENT OF THE COURT

1. This is an appeal against a High Court judgment of 20 April 2005 granting the Republic possession of land at Temakin Point, Betio, on South Tarawa. The land is leased to the Republic but currently occupied by the appellants.

The background

2. The land in question is divided into seven contiguous plots. The owners of three of the plots (Nanontekora 831o, Temakin 832i and Temakin 832o) had their title registered by the post-war Lands Commission in 1947 and 1948. The owners of the remaining four plots (Tuta 833a/1, Tuta 833a/2, Tuta 833e and Tebero 834a) had their title registered pursuant to decisions of the Lands Court in 1956.

3. In entering the names of the owners in the lands register, the Lands Commission was acting pursuant to the Native Lands Commission Ordinance 1922. Section 11 gave a right of appeal against the entry of their names within seven days extendable to six months in certain circumstances. No appeal was ever lodged. Section 12 provided that in the absence of any such appeal, the decision of the Commission entering the names as owners was final.

4. In 1956 the owners of six of the plots granted leases to the Government of the Gilbert and Ellice Islands Colony of which the Republic is the lawful successor. The owners of the remaining plot granted an identical lease in 1964. All seven leases were for a term of 99 years from 1 January 1954. The Republic relies upon those leases for its current right to possession.

5. The 25 appellants have occupied the relevant land for some years, the precise period being unspecified. In reliance on its right to possession as lessee, the Republic brought proceedings in the High Court seeking a writ for possession. The appellants having taken no steps in the proceedings, judgment was initially entered by default but this was subsequently set aside by consent.

6. The action for possession then proceeded on a defended basis in the High Court. The defence advanced by the appellants was that the persons who had granted the leases to the Republic in 1954 were not the owners of the land and were therefore not entitled to grant the leases. In the High Court that contention was based on two broad grounds.

7. The first ground was that the title of the purported lessors was vitiated from the outset by procedural errors - omissions in certain entries in the lands register and failure by some of the claimants to attend the Land Court hearings at which their title had been established. The Chief Justice found that the omissions in the lands register were of no consequence and that the absence of claimants during Land Court hearings did not invalidate the decisions and title registration.

8. The appellants’ other challenge to the lessors’ title was based on the contention that the appellants themselves were the true owners. They claimed to have inherited the land by line of descent from one Nei Kitaea. The first named appellant, Kabotau Nakau, gave evidence that the appellants were the descendents of the father of Nei Kitaea who had died without issue. Kabotau Nakau contended that the Lands Commission had wrongly entered the names of the current lessors as owners of the land on the basis that they were the occupiers of the lands, overlooking the prior title of Nei Kitaea.

9. The Chief Justice dismissed that challenge to the lessors’ title as well. He pointed out that pursuant to s 12 of thes ands Commission Ordinance the absence of an appeal at the time rendered the den of the Commission final. nal. No appeal had been lodged by Nei Kitaea nor by any her descendents over the ensuing 50 years. Pursuant to s 4 ofNative tive Lands Ordinance, entries in the lands register gave indefeasibility of title. Since the title of the lessors whose names appeared on the Register could not be challenged, the leases were valid. The leases entitled the Republic to possession and to judgment accordingly. From that decision the appellants have appealed.

The appeal

10. In a well-presented argument, Mr Boswell advanced a single ground of appeal. He submitted that in two cases the absence of the lessors at the Land Court hearings invalidated the orders recognising their title. This invalidated the leases of two of the seven plots (Tuta 833a/2 and Tebero 834a). The appeal was confined to those two plots.

11. Mr Boswell pointed out that in each of the Land Court minutes relating to those two lots it is recorded that those present at the hearing were confined to the Magistrate and the Kaubure. In the absence of the claimants in person (two of the current lessors) the Kaubure had effectively proposed registration on their behalf, explaining for the benefit of the Magistrate their relationship to the deceased and entitlement to be registered as successors in title.

12. At that time s 20 of the Native Governments Ordinance provided:

20. In all native land cases the claimants shall be present throughout the hearing of the case. The claimants shall be heard in the order which the court in its discretion may decide. Each claimant and his witnesses shall give evidence as in civil proceedings before the Native Court and the procedure shall be the same as in such civil proceedings. The decision shall be given by the magistrate after consultation with the other members of the court. In giving his decision the magistrate shall not be bound to conform to the opinion of the other members of the court.
    

13. Mr Boswell submitted that the words in s 20 “the claimants shall be present throughout the hearing of the case” were mandatory. He submitted that their absence invalidated their title and consequently two of the leases on which the Republic now relies.

Effect of non-attendance before the Land Court

14. Section 20 clearly requires attendance by claimants. The question is whether the attendance is mandatory (in the sense that non-compliance will invalidate the Court’s decision) or merely directory (in the sense that non-compliance will not invalidate the decision). Whether a procedural direction is mandatory or merely directory in those senses turns on the express or implied intention underlying the legislation in question: R v Pontypool Gaming Licensing Committee ex parte Risca Cinemans Ltd [1970] 3 All ER 241, 244 (CA); London & Clydeside Estates v Aberdeen DC [1979] 3 All ER 876, 883 (HL). That question is distinct from the further question whether the Court should, in its discretion, grant a remedy.

15. There is nothing express in s 20 invalidating the Court’s decision in circumstances where a claimant has not been present throughout the hearing. The remaining question is whether such an intention should be implied. That requires one to ask why s 20 provided that claimants were to be present.

16. “Claimant” is not defined in the Ordinance. It appears to refer to persons who have initiated the process by lodging applications with the Court or who have responded to such applications by advancing counter-claims of their own. In either case a claimant would appear to be a person who has notified the Court that the person has an actual or potential interest in the land in question.

17. This suggests two reasons why s 20 would require the presence of claimants. First, the Court would normally want a claimant to be there in order to answer questions about that person’s claim. Section 20 reinforces the power of the Court to refuse to hear a claim if a claimant does not attend to support it. Secondly, s 20 protects the claimants themselves. It ensures that in situations where a person has notified the Court that he or she wishes to pursue a claim, the Court may not make an order adverse to that person’s interests without allowing that person to be present throughout the hearing.

18. In the present case persons who were not parties to the proceedings seek to invalidate a decision in favour of the claimants on the ground that the claimants were not personally present at the hearing. It is not suggested that the appellants were claimants in the sense that we have described. We are satisfied that s 20 was never intended as a basis for invalidating a decision in those circumstances. There could have been no complaint from the Court because the minutes show that it was prepared to proceed without the assistance of the claimants. There could be no complaint from the claimants because they received the order they wanted.

19. We are satisfied that at least in the circumstances that applied in this case, the personal presence requirement in s 20 was directory only. In other words, failure to comply with that requirement had no effect on the validity of the consequent orders.

Other grounds

20. Given our conclusion in relation to non-attendance at the hearing, it becomes unnecessary to traverse other grounds on which this appeal might have been decided. It should not be assumed, however, that the appellants’ case would necessarily have survived other questions concerned with registration of the title of the lessors, registration of the leases, indefeasibility, the appellants’ status to challenge the Republic’s title as lessee, and the exercise of the Court’s discretion.

Conclusion

21. The challenge to the Republic’s title as lessee fails. The appeal is dismissed. The appellants must pay the Republic’s costs as agreed or taxed.

Hardie Boys JA
Tompkins JA
Fisher JA