IN THE COURT OF APPEAL OF KIRIBATI
CIVIL JURISDICTION

CIVIL APPEAL NO. 2 OF 1997

BETWEEN

NEI KAKAI TEENGA
NEI RARA TEENGA
(Appellants)

AND

ATTORNEY GENERAL
IN RESPECT OF MINISTER OF
COMMERCE, INDUSTRY AND TOURISM
(Respondent)

Mr B Berina for the Appellants
Mr I Read for the Respondent

CIVIL APPEAL NO. 3 OF 1997

BETWEEN

ATTORNEY GENERAL
IN RESPECT OF THE REPUBLIC
Appellant

AND

NEI KAKAI TEENGA
NEI RARA TEENGA
Respondents

Mr I Read for the Appellant
Mr B Berina for the Respondents

Date of Hearing: 5 March 1998
Delivery of judgment: 9 March 1998

JUDGMENT OF THE COURT
(Gibbs V.P., Connolly and Ryan JJ.A)

The appellants in the first appeal have appealed from a decision of the High Court in Civil Case No. 27/96 given on 14 November 1997. In that case, they had sought by originating summons five declarations. These were:

1. A declaration that the respondent cannot compulsorily take possession of the applicants’ land under the State Acquisition of Lands Ordinance (Cap. 95B) or under any law.

2. A declaration that the Notice of Intention to Acquire Land for the Public Purpose signed by the respondent dated 15th August 1996 is invalid and unconstitutional.

3. A declaration that the subsequent acquisition of the applicants’ land by the respondent is unconstitutional.

4. A declaration that the acquisition is wrongful and illegal.

5. A declaration that the applicants are entitled to damages for the wrongful acquisition of their land by the respondent in a sum to be assessed by this Honourable Court.

The fifth declaration sought was withdrawn at the hearing of the originating summons, and although it was included in the notice of appeal to this Court, it is clearly inappropriate for such a declaration to be made on the hearing of an originating summons for the reasons stated by Sir Harry Gibbs in The Hon. Faqir Muhammad v The Hon. Tekiree Tamuera & Ors (HCCC 33/94, decision dated 7 December 1994).

The submission for those appellants before the High Court was that the respondent could not compulsorily acquire the applicants' land under the State Acquisition of Lands Ordinance because a requirement in s.8 (1) (c) (ii) of the Constitution in relation to deprivation of property was not satisfied. Section 8 of the Constitution provides:

8 (1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where the following conditions are satisfied, that is to say -

(a) the taking of possession or acquisition is necessary or expedient in the interests of defence, public safety, public order, public morality, public health, town or country planning or the development or utilisation of any property for a public purpose; and

(b) there is reasonable justification for the causing of any hardship that may result to any person having an interest in or right over the property, and

(c) provision is made by a law applicable to the taking of possession or acquisition -

(i) for the payment of adequate compensation within a reasonable time; and

(ii) securing to any person having an interest in or right over the property a right of access to the High Court, whether direct or an appeal from any other authority, for the determination of his interest or right, the legality of the taking of possession or acquisition of the property, interest or right and the amount of any compensation to which he is entitled, and for the purpose of obtaining that compensation.

It was submitted for the appellants that s. 13 of the State Acquisition of Lands Ordinance did not secure a right of access to the High Court for the determination of the legality of the taking of possession or acquisition of the property, interest or right. Section 13 is in these terms:

S.13 If at the expiration of 6 months from the service as aforesaid of such notice no claim shall have been lodged with the Minister in respect of such lands, or if the person who may have lodged any claim and the Minister shall not agree as to the amount of the compensation to be paid for the estate or interest in such lands belonging to such person, or if such person has not given satisfactory evidence in support of his claim, or if separate and conflicting claims are made in respect of the same lands, the amount of compensation due, if any and every such case of disputed interest or title shall be settled by the High Court, which shall have jurisdiction to hear and determine in all cases mentioned in this section upon a summons taken out by the Minister or any person holding or claiming any estate or interest in any land named in any notice aforesaid.

This section does not in terms secure a right of access to the High court for the determination of the legality of the taking of possession or acquisition of property. The learned Chief Justice considered however that s.13 was in accordance with s.8 of the Constitution, on the ground that the word "claim" in s.13 referred to a claim made pursuant to a notice under s.7 of the Ordinance, that the form of notice in the Schedule referred to "any person claiming to have any right or interest in the said land", and that a claim challenging the legality of the taking of possession or acquisition of the property was a claim made in respect of a right or interest in the land

We are unable to agree with this interpretation. It is clear from the terms of s. 13 of the Ordinance that it is not in accordance with s.8(1)(c)(ii) of the Constitution.

Section 2 of the Constitution provides that the Constitution is the supreme law of Kiribati, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void. This must however be read with s.5(2) of the Kiribati Independence Order 1979. That Order sets out the Constitution in a Schedule to the Order. In s.5(2) it provides:

"The existing laws and any Act of the Parliament of the United Kingdom or order of Her Majesty in Council (other than the Kiribati Act 1979 or this Order), having effect as part of the laws of Kiribati or any part thereof immediately before Independence Day shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Order".

The State Acquisition of Lands Ordinance of I954 was an existing law, and accordingly it is to be construed with such modifications or adaptations as are necessary to bring it into conformity with the Constitution This means that s. 13 must be modified or adapted so that a claim for the determination of the legality of the taking of possession or acquisition of property is comprehended by its terms.

The appellants were therefore not entitled to a declaration that the respondent could not compulsory take possession of their land under the State Acquisition of Lands Ordinance or under any law.

The second declaration sought raised the question of the validity of the Notice of Intention to acquire land. The notice given on 15 August 1996 is that the Republic requires for public purpose for a term of 57 years to be used for public purposes the lands known as lot BE 495 comprising part of Temwinnako Lot Number 814e and 814a situated at Betio, Tarawa. The lands are then described with more particularity. It continues:

"Any person claiming to have any right or interest in the said land is required within 3 months from the date of this Notice to send to the Minister a statement of his right or interest and of the evidence thereof, and of any claim made by him in respect of such right or interest; and to yield up possession of such land before the date on which the Minister intends to enter into possession in accordance with this Notice.

And notice is hereby given that the Minister intends to enter, into possession, on behalf of the Republic, of the said lands at the expiration of 7 days from the date of this Notice".

The second declaration sought was that the notice was not only invalid but also unconstitutional. The reasons given for suggesting that it was unconstitutional do not go to the validity of the notice itself, but to the validity of the subsequent acquisition, and will be discussed in that context. One matter argued is however relevant to the issue of the validity of the notice. Section 7 of the State Acquisition of Lands Ordinance provides that whenever the Minister resolves that any lands are required for a public purpose, the Minister shall give notice to the proprietors of the lands and to the mortgagees, encumbrancees and lessees thereof. Section 8 is in these terms:

"8 (1)The Minister may, by such notice aforesaid or by any subsequent notice, direct the person or persons aforesaid to yield up possession of such lands after the expiration of the period specified in the notice which period shall not be less than 6 months from the service of such notice unless the land in the opinion of the Minister is urgently required for the public purpose.

8 (2) At the expiration of such period the Minister and all persons authorised by him shall be entitled to enter into and take possession, on behalf of the Republic, of such lands accordingly".

In the instant case, the notice given is of the intention of the Minister to enter into possession at the expiration of 7 days from the date of the notice. The notice itself does not however state that the land is in the opinion of the Minister urgently required for a public purpose, nor does it appear from any material placed before the High Court or this court that he held that opinion. Accordingly the learned Chief Justice declared that the Notice of Intention to Acquire Land dated 15 August 1996 was invalid. He was right to make that declaration. In the second appeal (Civil Appeal No. 3) the Republic sought an order declaring that the notice of acquisition was invalid be set aside. For the reasons given, the appeal by the Republic in Civil Appeal No. 3 of 1997 must be dismissed.

As the notice to acquire the land was invalid it followed that the subsequent acquisition was illegal. The declaration should therefore have been made, as requested by the appellants, that the acquisition was wrongful and illegal.

Since the acquisition was invalid, it is unnecessary to rule as to whether it was also unconstitutional. The only basis upon which the appellants made that claim in their submissions to this Court was that it was not established that the acquisition of the land was necessary or expedient in the interest of the development or utilisation of the property for a public purpose. In s.3 of the State Acquisition of Lands Ordinance, certain purposes are declared to be public purposes for the purposes of the Ordinance and of s.8 of the Constitution. The only one of these relevant to the present case is s.3(a): exclusive government use. In the affidavit of Martin Puta Tofinga, Senior Industrial Officer with the Ministry of Commerce, Industry and Tourism, it is deposed that it is proposed to establish on the site a factory for the manufacture of soap, cooking oils and other oil based products made from copra, and a National Marketing Authority. It may be observed that it is not clear that this description of the purpose for which the land is intended to be acquired satisfies the requirement that it be for exclusive Government use.

We would set aside the orders made by the learned Chief Justice, and in lieu thereof order:

A. In Civil Appeal No. 2 of 1997

(i) that a declaration be made that the Notice Intention to acquire land for a public purpose signed by the respondent CL 15th August 1996 is invalid.

(ii) that a declaration be made that the subsequent acquisition of the appellants' land is wrongful and illegal

(iii) That the other declarations sought by appellants be refused.

B. In civil appeal No. 3 of 1997 

That the appeal be dismissed.

Vice President: Gibbs VP
Judge of Appeals: Connolly JA
Judge of Appeals: Ryan JA