Tarakabu v Tikaa [2005] KICA 16; Land Appeal 07 of 2005 (8 August 2005)

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

Land Appeal No 7 of 2005

BETWEEN

KAIEA TARAKABU AND OTHERS
APPELLANTS

AND

TEUOKI TIKAA
RESPONDENT

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Katarake Tebweao for appellant
Berenike Iuta for respondent

Date of Hearing: 4 August 2005
Date of Judgment: 8 August 2005

JUDGMENT OF THE COURT

Introduction

[1] On 3 June 2005 the High Court comprising the Chief Justice and Magistrates Betero Kaitangare and Raratu Ieita dismissed an appeal from the decision of the Single Magistrate on 19 November 2004 making an order for eviction of the appellant from the land Tengaruru 766b. The appellants have appealed from the order of the High Court.

[2] The order of the Single Magistrate was:

“This Court makes a final order that on this coming Saturday 27/11/04 and the house of the applicants is to be demolished but not if there is a review or appeal on this matter.”

[3] The application was lodged in time and so the stay allowed for by the Single Magistrate came into force.

[4] The Land Court decided that the substantive matter had already been decided in HCLA 323/01, as a result of which the Land Court ordered that the appeal be struck out, but with liberty to the appellant to apply within six months. No application was made within six months, so the order became absolute. Accordingly, the appeal was dismissed.

[5] The High Court affirmed the decision of the Single Magistrate and dismissed the appeal. However it contained a clerical error that should be corrected. The judgment stated that the respondent applied for the eviction of the appellant from land Tengaruru 766m where it is clear from the decision of the Single Magistrate that she was dealing with Tengaruru 766b.

The issue on the appeal

[6] In the course of hearing the appeal, we discussed at some length the issues relating to these two blocks of land. According to counsel for the appellant, the appellant is the current legal landowner of Tengaruru 766m. He also accepted that the respondent is the registered landowner Tengaruru 766b. Further, we were told by counsel for the appellant that the appellant is living on Tengaruru 766m and not on Tengaruru 766b. If this be correct, the order evicting the appellant from Tengaruru 766b would have no effect.

[7] Counsel for the respondent, however, was concerned at the possibility that the appellant, despite the admission of her counsel, may be living on Tengaruru 766b. Further she said that the appellant has been selling parcels of land and she considers there is a possibility that, if in fact the appellant is living on Tengaruru 766b, she may attempt to sell that part of the block on which she is living. She need not have that concern. Obviously, any attempt by the appellant to sell part of any land of which the respondent is the registered owner cannot be of any legal effect.

[8] We understand from counsel that the real issue between the parties may well be boundary definition in order to ascertain the boundaries of the two blocks of land (although counsel for the appellant advised that they do not have a common boundary) and finally to determine upon which block the appellant is currently living.

Conclusion

[9] In view of the information provided to us by counsel, we see no basis for interfering with the eviction order made by the Single Magistrate and confirmed in the High Court. If the appellant is living on Tengaruru 766m the eviction order will have no effect. If she is living on Tengaruru 766b it is appropriate that she should be evicted from it, since she, through her counsel, acknowledges that Tengaruru 766b is owned by the respondent.

Result

[10] We agree with counsel that determining the boundaries of the two blocks of land is a matter of urgency. An appropriate application to the Magistrates' Court to achieve this result should be made promptly.

[11] The appeal is dismissed. Subject only to the correction of the typographical error to which we have referred, the decision in the High Court is affirmed and the eviction order remains in force.

[12] In view of the uncertainty surrounding these two blocks of land and the need to resolve it promptly, we make no order as to costs.

Hardie Boys JA
Tompkins JA
Fisher JA