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Tanaki v Edwin [2025] KICA 3; Civil Appeal 6 of 2023 (20 March 2025)

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

APPEAL NO. 6 OF 2023

BETWEEN

KOROTAERE TANAKI
TABOKAI TANAKI
TEAUATARA TANAKI
KITITI TANAKI
TAKATAANE BOUTU
BUREBURE BOUTU
Appellants

AND

CLEMONS EDWIN WITH BROTHERS
AND SISTERS
Respondents

Before: Sir Salika, JA

Nelson, JA

Khan, JA

Date of Hearing: 12 December 2024

Date of Judgement: 20 March 2025

APPEARANCES:
Counsel for the Appellants: T Timeon
Counsel for the Respondents: B Maitinnara

JUDGMENT BY THE COURT

INTRODUCTION

1. On 5 February 2015 the respondents filed an application to a single magistrate in case number Bailan 10/15 to deregister their mother’s death and have themselves registered as her next of kin in respect of land Temoti and Kene 670. An order to that effect was made that day.
   
2. The appellants were not happy with the decision in Bailan 10/15 with respect to the land Kene and made an application on 22 April 2021, some 5 years later for leave to file an application for certiorari pursuant to the provisions of Order 61 Rule 2 of the High Court (Civil Procedure) Rules 1964. The application was out of time and an extension of time was granted on 30 August 2023 to allow the applicants to file an application for certiorari.
   

BACKGROUND AND HISTORY OF LAND KENE 670ao

3. The respondents are children of Matereta Tawai. She was the registered owner of lands Kene 670ao and Timoti 610b. She died in 2012.
   
4. The appellants are children of the late Tanaki Ruaia who was registered over lands Kene 670ao, Anitti 607i/2e, Teere 789 u/1a2 and Teere 789 u/1a. When Tanaki Ruaia passed away, his children (the appellants) made an application to the Land Courts in Bailan 53/15 to deregister their father’s name and to have themselves registered as his next of kin. This application was also granted on 5 February 2015.
   
5. The history of land Kene 670ao was:
   
   1. Kene 670ao was registered in the name of Ruaia Doutu in 1948 in case number 80/55 and this land was given to Tanaki Ruaia.
      
   2. The appellants’ grandmother Kata was the original land owner who passed the land Kene to her son Tanaki Ruaia in C/N 483/48.
      
   100. The respondents’ mother was from Kata’s brother Arikitau who was not registered on Kene 670ao.
        
   4. In 2001 Tanaki Ruaia took out proceedings in case No. 134/2002 to include all issues of Arikitau and Kata over land Kene, Teere, and Teitai 133t, Timoti 610b, Betio 851i and Aontebike 516o. Matereta Tawai, the respondent’s mother was one of the issues of Arikitau and her name appeared in case No. 134/2002.
      
   5. Kene is leased by the Government of Kiribati and since 2002 the respondents’ mother started collecting rent from the Government and she continued to do so until she died in 2012.
      
   6. The respondents following the orders made in Bailan 10/2015 started collecting land rent and is still continuing to do so.
      

APPLICATION FOR CERTIORARI

6. The grounds for certiorari were:
   
   1. Breach of natural justice
      

The appellants claimed that they should have been invited to the hearing in Bailan 10/15 as they were original land owners of Kene 670ao and having acquired ownership in Bailan 53/15; and failure to invite them was a breach of natural justice and fairness.

2. Indefeasibility of Title – No jurisdiction
   

The appellants also claim that the Magistrates Court did not have jurisdiction to transfer the title over land Kene 670ao to the respondents as the land title to that land was confirmed in case No. 483/48, 80/55 and in Bailan 53/2015 and this was protected under the principles of indefeasibility of title as provided in section 4 of Native Lands Ordinance; and that the title number could not be disturbed except on appeal or review.

100. Further, that the Magistrates Court erred in law in granting the respondents the land on Kene 670ao when the deceased mother, Matereta Tawai, was not the owner of this land.
     

HEARING OF THE APPLICATION FOR CERTIORARI

7. The application for certiorari was heard by Semilota ACJ on 15 November 2023 and a decision was delivered on 1 December 2023 in which the certiorari application was dismissed and the learned Chief Justice stated as follows at [7] of the judgement:
   

[7] After considering both arguments, I am inclined to accept the respondent’s argument for the following reasons:

• First, in Bailan 10/15 the respondents went to Court to de-register their mother’s name from her two lands Kene 670-ao and Temoti 610b. The application was granted and their names were registered over the mother’s lands. The magistrate court did not doubt the mother’s ownership after seeing her certificate of ownership. Although the decision did not mention the certificate of ownership, the applicant Teauatara Tanaki, mentioned in her affidavit that the certificate of title of the respondent’s mother was submitted to the magistrate court.
  
• Second, case Bailan 53/15 in which the applicants based their ownership was conducted the same day as Bailan 10/15. Both cases were heard on 5 January 2015. The applicant’s case in Bailan 53/15 concerns the registration of their names after the father over his land Kene 670-ao. Therefore, in effect the applicants got their ownership on Kene 670-ao on the same day as the respondents, which means they cannot claim that they owned the land before the respondents. Natural justice is clearly not an issue here.
  
• Third, the applicants may be correct in saying that the grandfather, Ruaia, is the original landowner pursuant to the decision of CN 483/48, but their father, Tanaki Ruaia, had allowed the registration of the issues of Arikitaake, the respondent’s mother was one of the issues over the land Kene in CN 134/02. This decision gives title to the respondent’s mother and others over Kene 670-ao. Therefore, the indefeasibility of title is not an issue.
  

APPEAL

8. The appellant filed an appeal against the decision of the learned Acing Chief Justice. The grounds of appeal are as follows:
   
   1. The High Court was error in law in refusing to grant leave for certiorari to quash the decision of the Magistrates Court in case No. Bailan 10/15 on the reason that the appellants were not deserved to be afforded natural justice because they received title on the same date with the respondents without considering that this land was originally owned by the grandfather of the appellants in case No. 483/48 who was Ruaia Boutu and later transferred to their father in case No. 80/55 Tanaki Ruaia who owned this land alone without the descendants of the respondents who was Arikitau as per the decision in case No. 483/48. Because the descendants of the respondents did not own this land in the first place in case No. 483/48 and in 80/55, they had a good reason pursuant to the principle of natural justice and fairness to invite the appellants who were eligible land-owners after their father Tanaki Ruaia. The respondent’s appearance in case number Bailan 10/15 would be to disturb the decision of the Land Commission in case No. 80/55 and 483/48 by altering the land title that had already been existed by earlier decision so they must invite the appellants who must respond to the application as to why the respondents must or must not register their names over the land of their grand-father and their father.
      
   2. The High Court was error in law in deciding that the respondents acquired land title after their mother in Case No. 134/02 when it was clear from the application before the Magistrates Court in this case number that it was registration after issue-less owners Tarere Raibo and Tebuka Tekaei who had no connection with land Kene 670-ao as per the decision in case numbers 483/48 and 80/55 respectively. When the decision came out, it allowed for the mother of the respondents and others to be registered over Kene that did not have a plot number. If the land Kene was given to the mother of the respondents and others that must be land of issue-less owners of Tarere Raibo and Tebuka Tekaei which was not Kene-ao the plot number of the father of the appellants Tanaki Ruaia in case number 80/55 and Ruaia Boutu in case number 483/48. The decision of the Magistrates Court was silent on plot number of Kene so the respondents could not fill in the gap by saying it was the land of Tankai Ruaia and Ruaia Boutu. The decision of the Magistrates Court in case number134/02 remained as Kene without a plot number.
      
   3. The decision of the High Court was error in law when deciding indefeasibility of title was not applicable to the ground of review of the amendment to the notice of motion filed on 8 August 2023 when the decisions of the Land Commission in case numbers 483/48 and 80/55 had already been confirmed that the land Kene 670-ao belonged to the appellant’s grandfather and later to their father case number 134/02 was not about the decision of the Magistrates Court in regards to the transfer of Kene 670-ao to the mother of the respondents. They must be registered over the land of the issue-less owners Tarere Raibo and TebukaTekaei. The decision of the Magistrates Court was silent on the plot number of Kene so the respondents could not fill in the gap by saying it was land of Tanuki Ruaia and Ruaia Boutu. The decision of the Magistrates Court remains in Kene without a plot number.
      

CERTIFICATE OF OWNERSHIP OF THE RESPONDENT’S MOTHER

9. It is not clear as to whether the certificate of ownership of the respondent’s mother was tendered in the magistrate’s court. The Acting Chief Justice made an observation that the appellants Teautari Tanaki’s affidavit may address that the certificate of ownership was submitted to the Magistrates Court. The certificate of ownership was not part of the appeal record book and during the hearing of this appeal we asked the parties if it was available. We were advised that it was available. We ordered the respondents counsel to file a copy so that it could form part of the appeal record and to serve a copy on the appellants’ counsel.
   
10. A copy of the certificate of ownership was filed in Court on 13 December 2024.
    
11. After the certificate of ownership was filed the appellants’ counsel filed additional written submissions on 13 December 2024, although no orders were made for her to do so. In her submissions she states that the certificate of ownership showed that land Kene 670ao was in the name of Matereta Tawai but the court minutes do not support that as no finding was made to that effect; and that the Native Land Registrar corrected the defects in the Magistrates Court decision and registered the land Kene 670ao in the name of Matereta Tawai’s name. She further submitted that a separate court proceeding has to be filed to correct the defects in the Magistrates Court decision. She urged us to exercise caution in the use of the certificate of ownership.
    

APPELLANTS SUBMISSIONS

12. The appellants counsel submitted that the appellants should have been invited to attend the hearing of Bailan 10/15 since Kene 670ao belonged to their father and that they had a common interest in the land. She submitted that the certificate of ownership was not produced before the Magistrates Court and therefore there was insufficient evidence for the court to deregister the mother’s name and insert the name of the respondents. She further submitted that the Magistrates Court erred when it altered the name in case number 134/2002 and in doing so breached the principles of indefeasibility of title.
    

RESPONDENTS SUBMISSIONS

13. The respondents counsel submitted that in Bailan 10/15 the respondents filed proceedings to deregister their mother’s name upon her death and for them to be registered as her next of kin; that the appellants are not the next of kin of their mother and therefore there was no need for them to be invited to attend that hearing.
    
14. On the issue of indefeasibility of title, the respondent counsel supports and agrees with Acting Chief Justice’s findings.
    
15. The respondents’ counsel also submitted that Matereta Tawai’s registration has not been quashed by the High Court and that the appellant should wait for their case filed in the High Court challenging the determinations in case number 134/02 in the High Court to be determined.
    

CONSIDERATION

16. Bailan 10/15 was simply a case of the deregistration of the respondents’ mother’s name upon her death and the respondents’ names to be registered as her next of kin. Miss Timeon relied on the case of Tebanna v Tebanna^[1] which deals with the giving of an opportunity to any potential party to be heard. At [30] it is stated:

[30] It is a basic principle of law that, before making orders that will affect others, a Court must ensure any potential opposing party has an appropriate opportunity to be heard. This is known as the audi alteram patem principle. It is a fundamental rule of natural justice. Orders made without hearing from parties who might be affected adversely by them are made only in exceptional circumstances, and usually on an interim basis. Final orders made on an ex parte basis carry a substantial risk of causing a miscarriage of justice. Judges can only know what orders are appropriate if they have all relevant facts and legal arguments put before them for consideration, by all affected parties. ^[2]

17. Section 11 of the Gilbert and Phoenix Island Lands Code states as to how an estate of a deceased who dies intestate is to be distributed. The respondents’ mother died intestate and section 11 was applicable in the distribution of her estate and of the next of kin who had to be invited.
    
18. Section 11 was discussed in the case of Tebanna v Tebanna and it is stated at [38], [39], [40] and ]41] as follows:
    

[38] A distribution application is made under either s 10 or s 11 of the Gilbert and Phoenix Islands Lands Code (the Lands Code). In the present case, the Court had confirmed that the deceased had not left a will. Therefore, the application fell to be determined under s 11 of the Lands Code. Relevantly, clause 11 provides:

11. The estate of an intestate owner or of an owner whose will has been stopped will only be settled when his next-of-kin or their representatives are present. If the next-of-kin can agree upon a distribution then this may be approved by the court. If no agreement can be reached then the estate will be divided as shown below:

• (ii) In the distribution of an estate between the sons and daughters of an owner the shares of the eldest son shall exceed that of his brothers, and the share of sons shall exceed the shares of daughters. If there are no sons then the share of the eldest daughter will exceed that of her sisters.

[39] In this case, it is accepted that no document was filed by Teitengaun to initiate the distribution application. Nor was any application made to the Court for substituted service of the "application" that he had made. No judicial decision was made as to the form of service that should be effected.

[40] Section 11 of the Lands Code envisages a two-step process. The first is for the deceased's "next-of-kin" to agree upon how the lands should be distributed. Any consensus that may be formed can be approved by the Court, and given effect in that way. The second applies when no agreement has been reached. In that case, the Court is obliged to follow the terms of s 11 (ii) in deciding how the lands should be distributed. However, s Il(ii) focuses on the totality of the deceased's estate rather than its component parts.

[41] In (what we will call) the agreement phase, the family member who wishes to settle the form of any distribution must seek out those members of his or her family who need to participate in order to reach agreement. Section 11 seems to be based on the premise that, typically, the whereabouts of the family members entitled to share in the lands will be known. A process of consultation would normally be expected among all "next-of-kin" to whom s 11 applies.

19. Section 11 refers to the deceased’s “next of kin” and her next of kin for the purposes of section 11 were her children who attended the hearing. An agreement was reached and the court made orders deregistering the mothers name and registering her children as her next of kin. The appellant’s interest was not affected by this process of registration and distribution so there was no need for them to be invited to the hearing.
    
20. In relation to ground 2 that there was insufficient evidence to prove the respondents’ mother was the owner of land Kene-ao the learned Acting Chief Justice made a finding that the Magistrates Court relied on the certificate of title which did not form part of the appeal record book but has since been produced before us. The Magistrate relied on the certificate of ownership to make the orders and he had no powers “to judicially review another Magistrates’ Court’s decision” see Iererua v Kee^[3]. The learned Acting Chief Justice made a finding that the Magistrate made no error of law in relying on the certificate of ownership and we agree with those findings.
    

INDEFEASIBILITY OF TITLE

21. The certificate of ownership of the land was recorded in the Land Management Division certifying that Matereta Tawaia had land registered in her name according to their records and the footnote of that certificate contains a disclaimer which states:
    

“The Land Management Division cannot guarantee the validity and authenticity of the entries in South Tarawa Land Registries, recently compiled by the Division, as they have not been validated by a particular legislation. Titles in these Registries, therefore, as depicted in the above Certificate are correct as at the date of the Certificate and are subject to be changed in accordance with the subsequent Court decisions without notice”. (emphasis added)

22. Section 4 of the Native Land Ordinance Chapter 61 states:
    

Indefeasibility of Title

(4)(1) Subject to the provision of this section, title to native lands –

1. registered by the Commission as evidenced by a register of native lands, and
   
2. registered by the court in pursuance of sections 59 and 64(1)(b) of the Magistrate’s Courts Ordinance as evidenced by a register of native lands shall, subject to section 8 (2) of the Land Registration (Tawara and Tabiteuea) Ordinance 1969 (which provides for the correction of omissions and errors found in the registers prepared under the Ordinance), be indefeasible.
   

(2) When the court has, under the powers conferred upon it by section 64(1)(a) of the Magistrate’s Court Ordinance, approved the transfer of any native land as a result of causes arising subsequent to the proceedings of the Commission on the island concerned, and such transfer has not been varied on appeal, the title thus obtained as evidenced by the necessary rectification of the court register recording the new title to the land, in the Register of native lands shall, subject to section 8(2) of the Land Registration (Tawara and Tabiteuea) Ordinance 1969, be indefeasible.

24. On the issue of indefeasibility of title, it was stated in Attorney General and Ngatau^[4]:
    

[24] Indefeasibility of title under land registration systems has never been absolute. Under each land registration system it is necessary to determine the qualifications to indefeasibility. In this decision we do not purport to determine the full scope of qualifications to indefeasibility under section 4 of the Native Lands Ordinance of Kiribati. We have not had full argument on that topic. However, if merely entry on the register conferred full and absolute indefeasibility, this alone would be fatal to the respondents’ case. Given that the Republic is currently shown on the Native Land Register as the registered proprietor. Clearly statutory indefeasibility is subject to implied qualifications.

[25] In our view indefeasibility could not prevent a court from examining the circumstances in which the current registered proprietor became to be registered. We say nothing in this judgement as to the position of subsequent purchasers. However, the transaction dealing, court order, or administrative act that gave rise to the current registration is the very one that is under challenge, the Court must be able to examine its validity. It cannot be the case that the title of persons purporting to acquire land by invalid means is irreversible once they achieve registration.

[26] Mr Berina was therefore right to acknowledge at least two qualifications to indefeasibility, even though not spelled out in s 4. He accepted that legal title could be defeated by way of appeal or certiorari. We agree. Furthermore appeal or certiorari are merely the procedural vehicles by which legal title is changed. It is the substantive grounds upon which legal title will be changed that manner.

25. The learned Chief Justice made the similar observations to the case Attorney General v Ngataa when she stated at [5] of her judgement^[5]:
    

“The second ground relates to the principle of indefeasibility of the applicant’s title which cannot be disturbed except on appeal or review...”

26. In the circumstances the certificate of title as it stood when the respondents acquired their mother’s interest in the transfer was indefeasible. This ground of appeal has no merit and is dismissed.
    

OUR FINAL OBSERVATION

27. The respondents counsel in her written submission refers to an action being instituted by the appellant which is currently pending to challenge the finding in case number 134/02. The appellant’s counsel did not respond to this submission, but in her additional submission filed on 13 December 2024 she states that there: “has to be a separate action in order to correct the defect in judgement ... in 134/02”.
    
28. If indeed an action has been filed by the appellant to challenge the findings in case number 134/02 then that in itself is an admission by the appellant that the findings in case number 134/02 is correct until that challenge is successfully determined. Further that the Magistrate was correct in deregistering the respondent’s mother’s death and registering the children as next of kin.
    

RESULT

29. The appeal against the decision of the High Court is dismissed.
    
30. There will be an order for costs to the respondents to be agreed and failing agreement to be taxed.
    

DATED this 20 day of March 2025

^[1] [2021] KICAA; Land appeal 4 of 2019 (1 December 2021)
^[2] Martin v Ryan [1990] NZHC 151; [1990] 2 NZLR 209 (HC) at 229, applied in Skelton v Family Court at Hamilton [2007] NZHC 273; [2007] 3 NZLR 368 (HC) at paras [87] and [91].
^[3] [2004] KICA 13; Land Appeal 06 of 2003 (23 August 2004)
^[4] [2010] KICA 6; Civil Appeal 08 of 2010 (18 August 2010)
^[5] Page 6 of the Appeal Record Book