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

HCLA 34/97

BETWEEN:

BOUNTERAOI IOANE
Appellant

AND:

NAN TUU AND OTHERS
Respondents

Appellant in person
Nan Tuu in person

Date of Hearing: 12 May 1997

JUDGMENT

This is an appeal against the decision of the Makin Land Magistrates' Court in case no. 21/97. The appellant was the applicant in that case. He applied to the court to cancel the registration of the title of a person named Moteeti to the land known as Bakinikin 209. The court decided that it had no power to interfere with the registration since the title had been registered by the Native Lands Commission.

We have not seen the register but we presume that it was inspected by the lower court which, in its decision, mentioned that Moteeti's name was registered by the Commission on 2.2.94. In any event, it is not disputed that Moteeti's title appears in the land register and that it was registered by the Commission in 1954.

The appellant gave evidence in the lower court that his family inherited the land from his grandfather Korauea. Korauea had two children, Ioane (the appellant's father) and Tokira, but Tokira died in childhood.

After Korauea's parents died he lived with his sister N. Boata and her son Moteeti. The evidence does not state for what period of time. However, according to the appellant, when Korauea was dying Moteeti did not come to help him. Only Korauea's family and his wife's family helped him.

The appellant told the lower court that at the time of the Commission in 1953-54, Korauea had been dead for about 10 years. The appellant said that it was at the time of the Commission that Moteeti had a chance to enter Korauea's property dishonestly. His name was written in the Land Register under Korauea's name but there was no minute that Korauea agreed to this. Also, there was no minute that Ioane, Korauea's son, agreed that Moteeti should be registered with him under Korauea.

The appellant called no witnesses in the lower court to give evidence in support of what can only be described as his own speculations. The appellant is a young man and we doubt that he was even alive when the Commission did its work on Makin in 1954. No conclusions can be drawn from the fact that the Commission registered Moteeti's title without minutes evidencing the consent of Korauea and Ioane. The magistrates were not obliged to look behind the title of Moteeti to ascertain the reasons for registration by the Commission. The evidence given by the appellant to the lower court was almost entirely hearsay and was not capable of proving that Moteeti had acted dishonestly in relation to the registration.

The appellant told us that when the Commission registered Moteeti's title in 1954, Ioane (the appellant's father) was only 16 years old and knew nothing of the registration. However, in 1990 Ioane discovered that Moteeti's name was registered beside his own so he decided to come to Makin to see if it was true, and if it was true he would try to cancel the registration. Before he could do so, he had an accident and died. That is why the appellant himself had brought the application to cancel Moteeti's registration.

We find this a very curious story. Ioane may not have heard of the registration in 1954 when he was 16 years old. But surely, with land being the precious thing it is in Kiribati, Ioane could not, for the ensuing 36 years up until 1990, have remained ignorant of the fact that Moteeti was a co-owner of Bakinikin 209. And if Ioane died in 1990, why did the appellant wait 7 years before bringing his application? In our view, this story is more consistent with Ioane and his family having accepted Moteeti's registration for all of those years.

Apart from what we have already said, the law is quite definitely against the appellant. Section 4(1)(a) of the Native Lands Ordinance Cap. 61 makes it clear that titles to native land registered by the Native Lands Commission as evidenced by a register of native lands shall be indefeasible. In other words, such a title cannot be annulled or cancelled. The undisputed evidence is that Moteeti's title falls into that category.

We therefore find that the decision of the Land Magistrates' Court was quite correct. Accordingly, the appeal fails and is dismissed.

The appellant is advised that he has a right to appeal to the court of Appeal within 6 weeks.

THE HON R B LUSSICK
Chief Justice
(15/05/97)

TEKAIE TENANORA
Magistrate
(15/05/97)

BETERO KAITANGARE
Magistrate
(15/05/97)