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Titau v Bangao [2007] KIHC 124; High Court Civil Case 56 of 2007 (25 July 2007)

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

High Court Civil Case 56 of 2007

BETWEEN:

KIABAUA TITAU
Applicant

AND:

KABUBUKE BANGAO
TEROUTAKI KABUBUKE
THE ATTORNEY GENERAL iro THE LANDS
COURT OF SOUTH TARAWA
Respondents

For the Applicant: Mr Banuera Berina
For the Respondents: Ms Botika Maitinnara
No Appearance by the Attorney General

Date of Hearing: 25 July 2007

JUDGMENT

In CN B/BA 11/05 the Single Magistrate agreed to the transfer of title over "a portion of land" from Kabubuke Bangao to his son Teroutaki Kabubuke, Kabubuke having sent a letter to the Court requesting the transfer. In the proceedings there was no mention that the "portion of land" was or at least had been a babai pit. The Single Magistrate’s order:

Name of Teroutaki Kabubuke is to be registered over land Takeria 677i/3 in accordance to the intention of applicant namely Kabubuke Bangao. Application is granted.

The applicant, the owner of the land on which the babai pit is (or was) situated was not a party to the proceedings and knew nothing of them. It is now said that the babai pit has disappeared. If a babai pit disappears what happens to the ownership of the land on which it had been situated? Mr Berina argued that ownership of a babai pit by someone other than the owner of the surrounding land is an encumbrance on the title: when the pit disappears the encumbrance disappears as well: the land reverts to the ownership of the surrounding land owner without an encumbrance. The Lands Code is silent on the point. The Court must make a decision which will be a guide in the future. I accept Mr Berina’s argument: when a babai pit ceases to be a babai pit and disappears the owner of it ceases also to have any title and ownership of the land on which it was reverts to the surrounding landowners.

In the present instance the first fact to be established is whether there still is a babai pit or not. If there is then the Court should assent only to the transfer of the ownership of the pit. If there is no babai pit then Kabubuke has no title left to transfer to anyone.

On this application for an order of certiorari I can do no more than grant the application and quash the decision in CN B/BA 11/05. It will then be for one of the parties to take fresh proceedings. In those proceedings all interested on this land, including the present applicant must be parties. In coming to a decision the Single Magistrate should be guided by what I have written.

Application granted: order of the Single Magistrate in CN B/BA/11/05 quashed.

THE HON ROBIN MILLHOUSE QC
Chief Justice