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Turerei v Akieutoto [1998] KIHC 69; HCLA 062.97 (16 December 1998)

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

HCLA 62/97

BETWEEN:

TIRI TUREREI
Appellant

AND:

AKIEUTOTO
R KAUTU
N KARETITA
Respondents

Appellant in person
Mr D Lambourne for the Respondents

Date of Hearing: 11 December 1998

JUDGMENT

This is an appeal against the decision of Single Magistrate Karotu Tiba in case No. 123/97. In that case, the appellant applied to the court to be registered as a co-owner of the land Tabonrara 665a alongside the respondents, who are the current registered owners.

The evidence in the court below was that the respondents' father, Tato Tawaia, was registered as owner of the land by Land Commissioner Townsend on 2 April 1948 in case No. 410/48. A copy of the minutes of that case was produced from the National Archives.

The appellant was legally represented in the court below, whereas today her appeal is presented by her brother Betero. In the court below, the appellant claimed to be descended from N. Tumea's brother Katabanin. N. Tumea was the great grandmother of the respondents. The appellant also claimed that she had not been summoned to attend the 1948 hearing. These were the only issues raised by the appellant in the court below.

The Single Magistrate did not accept the family tree presented by the appellant, which contradicted the respondents' family tree. The Single Magistrate found that there was no brother of N. Tumea in the respondents' family tree. The Single Magistrate decided that since the title of Tato Tawaia was registered by the Lands Commission it was indefeasible. The appellant's claim was thereupon dismissed.

That decision is now appealed on the ground that the verdict is against the weight of the evidence. The appellant, however, put forward two new arguments which had not been raised in the court below. Since the appellant was no longer legally represented we allowed her some latitude in this regard.

The first of these arguments was that the minutes of the 1948 case were fraudulent since they were not signed by the Land Commissioner. Counsel for the respondent concedes that the minutes were not signed but points out that the minutes of the preceding case (409/48) which bear the same date, were signed by the Land Commissioner and that the handwriting appears to be the same. We note from the copy of those minutes (exhibit 2) that not only the preceding case but also the case before that has been signed by Land Commissioner Townsend. The minutes of case 410/48 are towards the bottom of the page. There is no space for a signature at the end of those minutes. It is possible that the signature of the Land Commissioner was cut off in the copy kept by the National Archives. Another possibility is that the Land Commissioner simply forgot to sign the minutes. In any event, the minutes of 3 cases appear on that page from the National Archives. The cases are in running order, the first two are signed by the Land Commissioner and, in our view, the handwriting in all 3 cases was by the same person. In our judgment, the absence of a signature on the minutes of case No. 410/48 does not invalidate the decision, and it certainly does not establish that any fraud was committed. We note that none of the families concerned in the 1948 distribution have ever challenged the legitimacy of those minutes. The question was apparently raised for the first time by the appellant in this appeal, more than 50 years after the decision.

The second argument is that the appellant has lived on the subject land for the past 34 years. That fact, by itself, does not give her a right to be registered as a co-owner. The appellant has produced to us a copy of the family tree which had been rejected by the Single Magistrate. The Single Magistrate was entitled to do so on the evidence before him and there is no ground for us to reverse his finding.

Under section 4(1)(a) of the Native Lands Ordinance a title to native land registered by the Lands Commission is indefeasible, in other words, such a title cannot be challenged. There was clear evidence before the Single Magistrate that the title of the respondents' father was registered by the Lands Commission. The Single Magistrate was obviously obliged to follow the law and, in our opinion, his decision cannot be faulted.

The appeal therefore fails and is dismissed. The appellant is advised that she has a right to appeal to the Court of Appeal within 6 weeks.

THE HON R B LUSSICK
Chief Justice
(16/12/98)

TEKAIE TENANORA
Magistrate
(16/12/98)

BETERO KAITANGARE
Magistrate
(16/12/98)