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

HCLA 23/97

BETWEEN

TARABO TEATA & OTHERS
(Family of Moanibure)
First Appellants

AND

KOURATAKE AND OTHERS
(Family of Karaiti)
Second Appellants

AND OWNERS OF FISH POND TEKINIMAKIN
ISSUE OF KAIEA TABUU mt mm
First Respondents

AND

THE ATTORNEY-GENERAL
for the Republic
Second Respondent

Mr T Teiwaki for 1st Appellants
Mr D Lambourne for 2nd Appellants
Mr B Berina for 1st Respondents
Mr D Sim for 2nd Respondent

Date of Hearing: 6 February 1998

JUDGMENT

Prior to the commencement of the hearing, Mr Teiwaki of counsel sought leave to withdraw a third appeal brought by Nabau Tion and others on the ground that they were not parties to the original proceedings. We granted leave and that appeal was withdrawn and dismissed.

These are appeals against the decision of the Makin Magistrates' Court (Lands) in Case No. 3/97.

That case was brought by the Chief Lands Officer (now correctly replaced as a party by the Attorney-General) to determine the owners of lands, babai pits and fish ponds affected by the construction of the airstrip on Makin Island for the purpose of paying out rents and compensation.

The issue central to these appeals is the ownership of the fish pond on the land Tekinimakin 140 which was destroyed in the construction of the airstrip.

The First Appellants claim that the issue has already been decided in favour of their ancestor Nei Moanibure by the High Court in HCLA 75/80.

The Second Appellants, who own the land Tekinimakin 140, support the First Appellants.

The First Respondents are the descendants of Kaiea Tabuu, the last king of Makin. The issue was decided in their favour in the decision now under appeal.

The Second Respondent supports both appellants and contends that the High Court decision should have been followed.

The judgments of the High Court dated 11th February 1981 and 27th October 1981 in HCLA 75/80 could not have been in clearer terms. In determining the owner of the fish pond destroyed by the airstrip, the judgment of 27th October 1981 provides as follows:

"We have now heard evidence and we are unanimously of opinion that the fish pond was the property of 1st Respondent, Nei Moanibure's family. This is conclusively shown by its being registered in the Lands Register for babai pits and fish ponds at Folio 140 in the name of Nei Rakaba Ribabaiti with brothers and sisters. Nei Rakaba, who died last year, was Nei Moanibure's aunt, and no relation to Kourataake's family. This entry was made in 1954 and signed by one Laxton and another. There is absolutely no doubt of its genuineness".

"This registration establishes an indefeasible title and proves conclusively that the fish pond in question belongs to Nei Moanibure's family".

Despite the clarity of that decision, the magistrates seem to have become confused by the existence of a second pond. In Makin Appeal No. 3/60 (referred to on P.16 of the minutes of the lower court case) the Acting Commissioner in his decision dated 7th June 1960 found that a second, unregistered pond existed on Tekinimakin 140 and was owned by Kaiea Tabuu and brothers and sisters. The second pond was registered on 3rd September 1982 in the name of Na Karaiti and descendants in case No. 8/82.

In a communication to the Makin Magistrates' Court (Lands) dated 19th August 1982 (referred to in the findings of the lower court on p. 19) Chief Justice Jones, in stating the obvious, advised that in the event that the second pond was registered, such registration would not affect the pond already registered, nor would it make any difference to the decision in HCLA 75/80 which was final, nor would it affect any further compensation because all such claims had already been dealt with.

There can be no question that in HCLA 75/80 the High Court decided once and for all that the owner of the pond which had been affected by the airstrip and for which compensation was payable was Nei Moanibure's family. That appeal was final and there was no right of appeal.

The magistrates were bound by that decision. They had no jurisdiction to review it or interfere with it in any way. It was irrelevant that there was more than one fish pond. The task of the magistrates was to determine the owners of that pond which had been affected by the airstrip. The High Court had already decided that there was only one such pond, that it was owned by Nei Moanibure's family and that their title was indefeasible. That should have been the end of the matter.

We find that the magistrates fell into error in deciding the issue contrary to the final judgment of the High Court in HCLA 75/80. Both appeals are therefore allowed and the decision of the Makin Magistrates' Court (Lands) in Case No. 3/97 in respect of the owners of the fish pond is set aside.

For the avoidance of any possible doubt, we declare that the owners of the fish pond which was affected by the construction of the airstrip are Nei Moanibure's family as already decided by the High Court in HCLA 75/80.

THE HON R B LUSSICK
Chief Justice
(  /02/98)

TEKAIE TENANORA
Magistrate
(  /02/98)

BETERO KAITANGARE
Magistrate
(  /02/98)