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Muller v Kitiona [2025] KIHC 113; Land Appeal 01840 of 2024 (30 April 2025)

IN THE HIGH COURT OF KIRIBATI
Land Appeal Jurisdiction
(South Tarawa)

HIGH COURT LAND APPEAL NO: 2024–01840

BETWEEN

WILFRED EDWIN MULLER, TENANOA MANGONITI _____ Appellants

AND

NAMANOKU KITIONA, BOOTA TABUARIKI ____________ Respondents

Date of Hearing: 8 October 2024

Appearances: Mr. Mantaia Kaongotao for the Appellants

Ms. Maere Kirata for the Respondents

JUDGMENT

INTRODUCTION

1. This is an appeal against the decision of his worship given on 12 November 2023 in Case Betlan 119/22. The appeal concerns land known as Bentengea 701-a (the disputed land) that is located at Eita, South Tarawa which, the appellants alleged, was their land.
   
2. The Appellant alleges that the disputed land was only entrusted to their elder, namely Tabomao (the ancestor of the respondents) for care and maintenance. The Appellant argued that this land was then fraudulently transferred and registered in the name of Tabomao’s daughter, Nei Tokaua.
   
3. After hearing both parties, his worship dismissed the appellants’ claim on the basis that they have failed to discharge the burden of proof. He pointed out that there is no evidence to prove who did the fraud; Tabomao, Tokaua, Nabatiku or Annaua. He was not satisfied that the absence of the minute is sufficient proof of fraud. It was more than 80 years ago, and it is very difficult to get proof if there is any. From this decision the appellants appealed to this Court.

GROUNDS OF APPEAL

4. Appearing for the appellants now is Mr Mantaia, and he advanced three grounds, namely:
   • (a) The court erred in law and in fact in its assessment on the evidences as the evidences proved a fraudulent registration of the respondent’s elders over the land originally owned by the appellant’s ancestor.
   • (b) The court erred in law and in fact in failing to consider that the evidences of the appellant are unchallenged and where the respondent’s elders are caretakers of the land in dispute.
   • (c) The court failed to notify the owners of the land in registering the respondents.

ANALYSIS AND CONSIDERATION

5. For the first ground, we cannot see any error. After going through the judgment, we hold the same view as his worship that the evidence produced by the appellants was scant and none supports their claim when viewed individually and collectively. There were two witnesses of the appellants. The first only made an assertion that the registration of Tokaua Tabomao in 1947 – 1948 was fraudulent claiming that these years were the periods of fraudulent activities. When cross-examined, he said that he did not know who committed the alleged fraud. As for the second witness, he did not take the case further.
   
6. The elements of fraud as expounded by the Court of Appeal in Bukaineti^[1]was that (1) the person making the allegation must prove that the evidence or statement challenged was a false statement of fact, that the person making it knew it was false and that it was intended that the person or court to whom it was made would act on it. (2) The person making it must have known that the statement challenged was dishonest and morally wrong, and (3) it was made with intent to deceive.
   
7. It went further to say that:

“The standard of proof required is on the balance of probabilities, but because of the serious nature of an allegation of fraud, there must be strong, convincing evidence that the statement was made knowing it was false and with intent to deceive. Although that may be proved by circumstantial evidence, nevertheless the evidence must be compelling and allow of no other reasonable explanation. Thus, fraud is difficult to establish.”

8. In light of what is required under Bukaineti (supra), the appellant had failed to prove that the proceedings by which Tokaua Tabomao received her title from, was obtained by fraud. There is no evidence credible enough to satisfy the court of the existence of fraud. There might be a suspicion but that its.
   
9. We agree with his worship on his finding that the appellants have failed to provide clear and convincing evidence that Nei Tokaua Tabomao’s registration was fraudulent.
10. Further the absence of court records does not automatically prove fraud.^[2] As stated in Bukaineti (supra), fraud requires proof of dishonest intent or misrepresentation, which the appellants have not demonstrated.
    
11. Additionally, a land title registered under the Land Commission’s authority is presumed valid unless strong evidence proves otherwise.^[3] The appellants had not been able to provide strong evidence to prove that Tokaua Tabomao’s registration was invalid.
    
12. For the second ground, we are of the same view with his worship too. The allegation that Tabomao holds the land as a mere caretaker in itself is nothing more than an assertion and is not sufficient proof of the fact claimed. We refer to our reasons above and will dismiss this ground as well. His worship was therefore right in coming to that conclusion; he was entitled to do so based on the evidence before him.
    
13. For the third ground, we are of the view that since the land in dispute does not belong to the appellants, there is nothing to invite them to. Unless they have an interest in, which we admittedly cannot find, they cannot be invited or summoned. This ground also fails.

DECISION

14. Based on the aforementioned reasons, this appeal has no merit and is therefore dismissed. It follows that the decision of his worship in case BetLan 119/22 is affirmed.
    
15. As the successful party, the respondents are entitled to cost which amount shall be assessed if not agreed upon by the parties.

Dated this 30 day of April 2025.

^[1] Bukaineti v Tekimwa [2007] KICA 7; Land Appeal 05 of 2007 (30 July 2007)
^[2] See Pita v Nabetari [1994] KIHC 9
^[3] See Kautuna v Kaon [2001 KICA 3