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Itinraoi v Namaroro [1998] KIHC 51; HCLA 056.97 (2 October 1998)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCLA 56/97

BETWEEN:

MIKAERE ITINRAOI
Appellant

AND:

MATARENA NAMARORO
Respondent

Mr B Berina for the Appellant
Mr D Lambourne for the Respondent

Date of Hearing: 25 September 1998

JUDGMENT

This is an appeal against the decision of the Single Magistrate in case No. 253/97. In that case, the present appellant applied to the magistrates' court to cancel the registration of the respondent as the registered owner of the land known as Namaona 729o.

The land formerly belonged to the appellant's grandfather, Tekaai. While Tekaai was alive he allowed the respondent and her husband to settle on the land. This settlement was never opposed by any of Tekaai's children.

After Tekaai's death, the appellant's father, Itinraoi, became the owner of the land. On 4 August 1989 in case No. BA 194/89 Itinraoi and his brother Tioneti went to court to transfer the land to the respondent. It is clear from the minutes of that case that Itinraoi was present during the proceedings but that Tioneti was the one who presented the application to the court. The court approved the application and the respondent became registered owner.

In the case under appeal (253/97) Itinraoi gave evidence that he was illiterate and did not intend to register the respondent as owner. That evidence was not accepted by the Single Magistrate who, in rejecting any suggestion of fraud, found that since Itinraoi was present at the earlier hearing (194/89) he could have appealed against the decision had he disagreed with it, but had never done so. The Single Magistrate decided that since the registration had been accepted by the issue of Tekaai, they could not subsequently change it.

The appellant now appeals that decision on four grounds which allege various ways in which the Single Magistrate erred in confirming the decision in case No. 194/89. These grounds are set out in the Notice of Appeal and it is not necessary to set them out here.

Since the decision in case No. 194/89 (by which the respondent became registered owner of the land in question) was never appealed, we cannot agree with the appellant's argument that the Single Magistrate was wrong in not overruling it. In our view, he was correct to follow it.

We have perused the evidence which was before the Single Magistrate in case No. 253/97 and we are satisfied that there was no error in law or fact that would justify our interference.

The appeal is dismissed.

THE HON R B LUSSICK
Chief Justice
(2 October 1998)

TEKAIE TENANORA
Magistrate
(2 October 1998)

BETERO KAITANGARE
Magistrate
(2 October 1998)