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

Land Appeal No 3 of 2007

BETWEEN

KINONOUA UNIKANNARA MT MM
Appellants

AND

CATHOLIC BETERIN AMBO
Respondents

Before: Hardie Boys JA
Tompkins JA
Paterson JA

Counsel: Stephen Earl for appellant
Banuera Berina for respondent

Date of Hearing: 26 July 2007
Date of Judgment: 30 July 2007

JUDGMENT OF THE COURT

INTRODUCTION

1.	This is an appeal against the judgment of the High Court given on 1 December 2006 on an appeal from the Single Magistrate. The issue is whether Nei Kaeua sold a piece of land to the Catholic Church (the respondent) or whether she gave the respondent a mere right to occupy the land.

PRELIMINARY MATTERS

2.	The appellants, the children of Nei Kaeua, sought leave to bring this appeal out of time, and to have the expenses associated with the appeal waived. Leave was given on the time matter and there was an order waiving the expenses associated with the appeal.

3.	In both the High Court and this Court the respondent was described as "Tawerio for Catholic Church, Beterin". Naming Tawerio as a party was not in compliance with section 6 Religious Bodies Registration Ordinance. An application was made to remedy the situation and leave was given to substitute the name of an authorised trustee in Tawerio’s stead.

THE ISSUE

4.	On 4 August 1989 Nei Kaeua signed a document in I-Kiribati, a translation of which reads:

04 April 1989

To,

Your worship, and Magistrate’s court;

I hereby allow part of my land which is from one side of the road down to foreshore of my land, and I also allow Catholic Church to build a seawall as to reclaim land to settle upon and to own it.

In this agreement, I also allow the Catholic Church to settle upon the land as long as they wish for. If they had enough of it, they may move to some place else, and by then I should have my land back.

As my agreement wish the Ambo Catholic Church is now completed, I want the Church to pay me the amount of $5,000.00 as for being staying on my land and I would not claim for further amount from the church later in future.

Signature:	Signed
Landowner		Signature:	Signed
Issue of landowner	

Signature:	Signed
Witness		Signature:	Signed
Witness	

Although there was no evidence on the point, the Court was told from the bar that both witnesses were members of the Catholic Church.

5.	In July 1993 a further document was signed. The translation of it reads:

Statement

I Nei Kaeua Kinonoua wish to reveal that the Catholic Ambo parish in AMBO on South Tarawa has paid to me the sum of $5,000.00 (five thousand dollars) as for the purchase of part of the foreshore of my land namely Etanterawa 744a in Ambo which is south of the road which attached to their reclaimed land.

The sum paid to me on 27th day of July 1993. Before two witnesses, their signatures shown below:

Signed:		(1) Witness :	Nei Uua Onikanara signed	
Kaeua		(2) Witness :	Nei Borateata Onikan signed	

Names and Signatures shown below are representatives of the Catholic Church on Ambo, and we wish to confirm here that we have given the landowner namely Kaeua Kinonoua the sum of $5,000.00 on the 27th day of July 1993.

Signed	Signed	
Chairman (Cath, Ambo)
Johnny Kulene	Catechist (Cath Ambo)
Betero Karotu	

Signed	Signed	
Vice-Chairman
Teikabi Taukaban		Treasurer
Nei Miina Kulele	

Nei Uua Onikannara	Signed	
Nei Borateata	Signed	
Nei Bweaua	Signed	
Kinonoua	Signed	

The sum of $5,000 referred to in the document was paid on or about 27 July 1993. It was the only payment made by the respondent to Nei Kaeua in respect of the land.

6.	The issue is, did Nei Kaeua sell the land to the respondent, or merely give it a right to occupy?

THE PREVIOUS JUDGMENTS

7.	The Single Magistrate considered the respondent’s application to be registered as owner of the land. In a decision given on 28 February 2006 she declined to register the respondent as owner of the land, although it registered it as the owner of the seawall. The Single Magistrate respected "the intentions of this old woman namely Kaeua when she gave away her land to the Catholic for it to reside on it up until it wishes to".

8.	The respondent appealed to the High Court. That Court read the two documents together and held that in doing so the intention is not difficult to see. On the balance of probabilities the Church should own the land. It quashed the Single Magistrate’s decision and ordered that the land be registered in the name of the respondent’s trustee.

THE APPEAL

9.	For the appellants Mr Earl submitted that the intention was not to sell the land because of the statement in the April 1989 document that "they may move to some place else, and by then I should have my land back". He further relied upon "uncertainty" on the face of the documents, the conduct of the parties and estoppel.

10.	Mr Berina for the respondent submitted that the April 1989 document was provided to tell the magistrate that she allowed the Catholic Church to build a seawall. The July 1993 document evidenced that she had received $5,000 from the Catholic Church for the purchase of part of her land. That document was clear and did not require clarification. Unlike the April 1989 document which had been acknowledged by one child of the landowner, the July 1993 document was acknowledged by all her children.

DISCUSSION

11.	The meaning of a document is to be ascertained by adopting the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. The background includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable person, except the previous negotiations of the parties and their declarations of subjective intent. Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1WLR 896.

12.	In the view of this Court the meaning of the July 1993 document is clear and unambiguous. The sum of $5,000 was paid to Nei Kaeua "for the purchase of part of …. Etanterawa 744a". A purchase of land means to a reasonable person the absolute sale and purchase of the land and not the granting of a right of occupancy.

13.	The plain and ordinary meaning of a term in a contract can be given another meaning when considered in context and against permissible background facts. In this case there is nothing in the context of the rest of the July 1993 which suggests that the word "purchase" should be given a different meaning. On the contrary the context confirms the meaning. This document, unlike the April 1989 document, was signed by representatives of the Church as a party and by all Nei Kaeua’s children.

14.	The background facts do not, in this Court’s view, place a different meaning on the July 1993 document. The April 1989 document is evidence of the landowner’s consent to allow the Church to build a seawall and to allow the Church to occupy the land. No money was paid at that time and if it was intended to be part of a contractual arrangement it was never executed. It appears to be nothing more than a preliminary document evidencing the landowner’s intent at that time. The Church was not a signatory in the sense of being a party. If it was evidence of Nei Kaeua’s intent at that time, subjective intent can not be an aid to interpreting a contract.

15.	It is therefore this Court’s view that the July 1993 was the contractual document, and that it clearly evidences a sale of the land.

16.	Mr Earl suggested that the sale may infringe the Native Lands Ordinance because all of Nei Kaeua’s children did not consent to it. There was no evidence before either the Single Magistrate or the High Court that there were children other than those who signed the July 1993 document. This ground can not succeed.

RESULT

17.	The appeal is dismissed.

COSTS

18.	The respondent is entitled to costs. If the parties are unable to agree costs are to be fixed by the registrar.

Hardie Boys JA
Tompkins JA
Paterson JA