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

Land Appeal 4 of 2007

BETWEEN:

BAIKAWA TEEBITA
Appellant

AND:

KIRATA TEUNA
Respondent

Before: Hardie Boys JA
Tompkins JA
Paterson JA

Karotu Tiba for Appellant
Banuera Berina for Respondent

Date of Hearing: 27 July 2007
Date of Judgment: 30 July 2007

JUDGMENT OF THE COURT

[1] 	In a judgment delivered on 23 February 2007, the High Court quashed that part of a decision of the Magistrates’ Court that held the appellant Baikawa Teebita to be co-owner with the respondent Kirata Teuna of lands at Tabiteuea North. 

[2] 	The parties are related. They have the same great-grandfather, Tabuteun; their grandfathers were brothers.

[3] 	 In 1948 the appellant Baikawa’s father Tebita signed a lease of the lands to the Cooperative Society. The document is typed, in what appears to be a standard form, with the particulars applicable to the particular transaction written in by hand. It is apparent that when those details were completed, the name of Nei Kirata was written in as owner. That is consistent with an endorsement on a plan of the land at the foot of the document, which describes Nei Kirata as the owner. However, the name of Nei Kirata as lessor has been crossed out and the name of Tebita written in above it. It seems that Nei Kirata may have been on Fanning Island at the time of the lease. 

[4] 	Tebita collected the rent under the lease during his lifetime, and then after his death Baikawa collected it. In 2006, Nei Kirata brought proceedings in the Magistrates’ Court (CN 21/06) to recover rent received by Baikawa. Baikawa resisted the claim, alleging that Nei Kirata had no right to the land. The Court held that they were both registered as owners of the land, and therefore had to share the rent. 

[5] 	Nei Kirata appealed against that decision, and Baikawa cross-appealed, each claiming to be solely entitled.

[6] 	In the High Court counsel agreed that both the appeal and the cross-appeal turned on the same point, namely whether the entry of the name of a person in a Land Register as having an encumbrance means that he is a part owner of the land.

[7] 	The relevant page of the Register is in the name of Nei Teitirake Kaubutonga, who is Nei Kirata’s mother. (Her daughter’s entitlement to her interest in her lands, whatever it may be, is not in issue.) This page shows Nei Teitirake owning six pieces of land, including the lands in dispute in this case. Alongside the latter, under the column headed "Encumbrances" the name Toantei Tabuteun appears. He is Baikawa’s grandfather (and the brother of Nei Kirata’s grandfather), and it is through him that Baikawa claims his entitlement.

[8] 	 It is Mr Tiba’s case that this entry under the heading "Encumbrances" shows that Toantei was registered as a co-owner. It is Mr. Berina’s case that it does not show that, but rather some other, and unspecified, interest. Further, he submitted, when a co-owner’s name is entered in the "Encumbrance" column, there is inserted to the left of his or her name the letter "m" which is short for "ma", meaning "with". As well, the page of the Register showing Toantei’s land holdings does not include an interest in the lands in question.

[9] 	The High Court accepted Mr. Berina’s submission, pointing out that in general land law an encumbrancee is not an owner of land, and it saw no reason to believe that that is not also the case in Kiribati. Accordingly it allowed the appeal, quashing that part of the Magistrates’ Court decision which included Baikawa as co-owner, and it dismissed the cross-appeal.

[10] 	The submissions in this Court were to the same effect as those put forward in the High Court. Mr. Berina for Nei Kirata relied on the entry in the Register, and the absence of the letter "m". Mr. Tiba for Baikawa placed considerable reliance on rights of succession. His argument was to the effect that the Magistrates would have known that the parties’ great-grandfather Tabuteun left two sons and that Baikawa was entitled to half the land by virtue of his descent from one of them, and that this must have been the background against which they concluded that the Register showed him to be a co-owner. He emphasised that the result of the High Court decision was to deprive Baikawa of his inheritance. Of course Baikawa’s claim to the whole of the land would have exactly the same effect so far as Nei Kirata is concerned.

[11] 	Mr. Tiba’s submission takes us into the realm of speculation, and into matters of fact. On a land appeal, this Court is entitled to determine only questions of law. As Mr. Berina submitted, the High Court found no evidence to support the Magistrates’ finding. Its conclusion was essentially one of fact. It has not been shown that the High Court was in error on a question of law.

[12] 	The result is that the appeal must be and it is dismissed. The respondent is entitled to costs, the amount to be agreed or failing agreement to be fixed by the Registrar.

Hardie Boys JA
Tompkins JA
Paterson JA