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

HCLA 65/94

BETWEEN:

BAURO TOKATAAKE
KIRIBATI PROTESTANT CHURCH (KABANGAKI)
Appellants

AND:

KUM ON URIAM
Respondent

Mr T Teiwaki for the Appellants
Mr B Berina for the Respondent

Date of Hearing: 9 June 1997

JUDGMENT

This is an application for leave to appeal out of time against the decision of the Abemama Land Magistrates' Court in case No. 109/69 delivered on 15 December 1969.

The application was brought by Notice of Motion filed on 4 October 1994, and was supported by the affidavit of the applicant Bauro Tokataake sworn on 15 September 1994.

The grounds of the application as stated in the Notice of Motion are as follows:

"1.	The Magistrates should have known that the land purchased was Temotu 270a and not Terianako 267(e).

2.	That grounds is substantial and with merit that may lead this Hon. Court to reverse the Lands Court decision" (sic).

Should the application succeed, the ground of appeal to be relied upon is in these terms: "The magistrates erred in law in transferring land known as Terianako to the respondent against the will of the first named applicant who was then landowner".

The case 109/69 was an application by the respondent Kum On for the court to approve his purchase of the land Terianako 267(e) from the applicant Bauro Tokataake. The applicant was obviously aware of the hearing but did not attend. Instead, he sent a letter to the Presiding Magistrate dated 1st December 1969 in which he said:

"Ko na mauri!!

I apologise for not attending court today, but I wish to show to the court that my land Temotu, I wish to offer to Kum-On as payment for his motorcycle which I now own.

Thank you very much.

(Signed) Bauro Tokataake"

However, Kum On gave evidence that the agreement between him and Bauro Tokataake was that he would sell his motorcycle to Bauro in exchange for the land Terianako 267(e). He denied that the land he had bought from Bauro was Temotu 270a.

The magistrates accepted Kum On's evidence and ordered that the land Terianako 267(e) be transferred to him. That is the decision which the applicants seek to appeal some 25 years after it was made.

It is obvious from the minutes of case No. 109/69 that the second-named appellant, Kiribati Protestant Church (Kabangaki) (KPC), was not a party to that case and so has no right to appeal the decision. We assume that the KPC has joined in the application because it is a lessee of the land Terianako 267(e). If KPC has any claim in respect of its lease then it is not something which can be raised by way of appeal. Therefore, in respect of the KPC, the application to appeal out of time is refused. From now on, any reference to the applicant will be a reference to Bauro Tokataake.

Counsel for the applicant tells us that the reason for the delay in bringing the appeal was the applicant's belief that the matter had been rectified in 1978. According to the applicant's affidavit, what led him to that belief were the decisions of the magistrates' court in cases 3/78 and 21/78.

Case 3/78 was an application by the respondent to receive the rent from Terianako 267(e). The representative from KPC acknowledged that the respondent had recently bought the land but pointed out that the KPC had settled the land long before that on a lease granted by King Binoka. The court decided that since the respondent had bought the land from Bauro Tokataake the case should be adjourned to enable Bauro to attend court and tell the magistrates about the lease.

It should be mentioned here that Bauro Tokataake is the present King, or High Chief, of Abemama.

When the court reconvened in case No. 21/78, Bauro gave evidence that he knew nothing about the lease to KPC because he had sold his land Temotu 270a to Kum On but the Lands Court had transferred Terianako 267e instead. The court decided not to interfere with the King's lease because it stemmed from long ago.

This case shows that at least as early as 1978 the applicant was aware that Terianako 267(e) had been transferred to the respondent. Up until that time no appeal had been lodged, but one would have expected the applicant, armed with this knowledge, to have thereafter done something about an appeal. He could even have applied to the court then and there to rectify the matter. We cannot see how any reasonable person could conclude that the decision in case 21/78 rectified the error allegedly made in case 109/69. There was no such application before the court. All that the court decided was not to interfere with the King's lease, giving as a reason that the lease was of long standing. The court made no other findings.

Counsel for the respondent told us that he had inspected the land register and discovered that in case 46/71, the minutes of which he produced, the applicant had sold the remaining 6 acres of Terianako 267e to the respondent. The minutes of that case show that, once again, the applicant did not bother to come to court but simply sent a letter saying that he agreed to the transfer of his land, the boundaries of which had been determined. He did not give specific details of the land he was referring to. The decision of the court, delivered on 10th June 1971, was that the 6 acres of Terianako 267e/3 were to be transferred to Kum On.

Since a boundary determination had been carried out in respect of the land in that case it is inconceivable that the applicant would believe that he was still the owner of the rest of Terianako 267e. In our view case 46/71 amounts to both an acknowledgment by the applicant that the respondent had taken title to the other part of Terianako 267e and an acceptance of that fact. It is significant that there was no mention of that case in the applicant's affidavit.

In paragraph 4 of his affidavit the applicant mentions that, believing the error had been rectified, he sold the accretion to the land Terianako 267(e) to the KPC in Land Case No. 10/90. The applicant deposes that the land was wrongly described in that case as Teriki 352w. We have perused the minutes of case No. 10/90. The present applicant was also the applicant in that case. His application was to have the title to the land Teriki 352(w) registered in the name of the KPC. The applicant gave evidence in which he specified that the land the subject of the application was Teriki 352(w). There was no mention at all of Terianako 267(e).

To support the applicant's claim that the land in case 10/90 was wrongly described, counsel for the applicant has tendered a document which appears to be a list of lands owned by Tem Bauro. The list starts with the number 426 and ends with 475. Counsel submits that this list shows that the land in case No. 10/90 should have been described as Teriki 460. This is because number 460 is shown on the list as Teriki Kabanaki. The preceding number 459 refers to Terianako. This, submits counsel, proves that Terianako and Teriki adjoin one another. Counsel further submits that the list also proves that there is no such land as Teriki 352w in Abemama.

In our view, the list tendered by counsel proves only that on a list of lands owned, or once owned, (the list is from the National Archives) by Tem Bauro, the land Terianako is numbered 459 and the land Teriki Kabanaki is numbered 460.

Furthermore, the decision of the magistrates' court in a 1992 case indicates that there had been no error in describing the land in case 10/90.

In paragraph 5 of the affidavit the applicant mentions a 1992 Land Case in which the court ordered KPC to pay rent to the respondent and not to himself. Counsel for the applicant tells us that a mistake has been made in the affidavit and that "1992" should read "1994".

The 1994 case was case No. 34/94 in which the parties were the KPC and Paul Tokataake. The KPC applied to the court to determine the part of Terianako which they had bought from Bauro. The court refused to entertain the application on the basis that the issue had already been determined in favour of Kum On in a decision handed down on 26 June 1992 and that decision had not been appealed.

We have the minutes of that 1992 decision in case No. 34/92. One of the findings of the court in that case was as follows:

"Teriki 352-w was purchased by the KPC Kabangaki from Paul Tokataake in case No. 10/90 of 6/3/92. It is believed to be part of Abatiku and it should not be confused with Terianako 267".

Paragraph 4 of the applicant's affidavit is therefore inaccurate (to say the least) when it states that it was not intended to transfer the land Teriki 352w.

On page 3 of the translated minutes of the 1994 case (34/94) the applicant gave evidence that he sold Temotu to Kum On but that the Lands Court registered him on Terianako West. When we consider this admission together with cases 46/71 and 21/78 we conclude that the applicant has known of the transfer to the respondent of Terianako 267(e) for a very long time indeed; certainly as early as 1978 and probably back to 1969. For reasons best known to himself he had chosen not to do anything about the 1969 decision until this application was brought in 1994. Possibly the question of the entitlement to rents received by him over the years for Terianako 267(e) may have been an inducement, but this is mere speculation.

The applicant apparently believes that the magistrates made an error in case 109/69 which should have been rectified. The applicant is obviously mistaken in this belief. The minutes of that case show that the magistrates did not make any error. They weighed up the evidence before them and accepted the respondent's evidence that the land the subject of the agreement was Terianako 267(e) and not Temotu 270a as claimed by the applicant in his letter. If there was any dissatisfaction with the procedure adopted by the magistrates' court then that was a matter for an appeal, but there was no error to be rectified.

We do not think this application has any merit at all. What the applicant has put before us does not satisfactorily explain a delay of 25 years. The application for leave to appeal out of time is therefore refused.

We would add the observation that even if the applicant had established that the delay was reasonable - and we stress that he has not - it would seem that the indefeasibility of the respondent's title would be an insurmountable obstacle to the success of an appeal.

THE HON R B LUSSICK
Chief Justice
(23/06/97)

TEKAIE TENANORA
Magistrate
(23/06/97)

BETERO KAITANGARE
Magistrate
(23/06/97)