Tebeia v Aviu [2008] KICA 3; Land Appeal 13 of 2007 (20 August 2008)

In the Kiribati Court of Appeal
Land Jurisdiction
Held at Betio
Republic of Kiribati

Land Appeal No 13 of 2007

Between:

WATETI TEBEIA MT MM
Appellants

And:

REO AVIU
Respondent

Before: Tompkins JA
Fisher JA
Smellie JA

Counsel: Taoing Taoaba for appellants
Banuera Berina for respondent

Date of Hearing: 18 August 2008
Date of Judgment: 20 August 2008

JUDGMENT OF THE COURT

This is a case in which the appellants as owners of land at Aontoa 712(b) had succeeded before a Single Magistrate (C/N TTT 15/07) in obtaining an order of eviction against the respondent.

It was common ground that the appellants own the land and that their grandmother, now deceased, had agreed for token consideration, (basket of tricks, bag of fish and bag of taro), that the respondent could reside on the land so that his children could go to a nearby school. By 1993 (the date when the Magistrates’ Court and the High Court found that the appellants had told the respondent to leave the land) the children had all grown up and left school and the grandmother was dead. Their descendants, the appellants eventually applied to the Magistrates’ Court on 14 March 2007 seeking an order of eviction. This was granted.

The respondent then appealed to the High Court in its jurisdiction under the Native Lands Act. The magistrate’s decision was summarily overturned on the basis that section 8(2) of the Limitation Act which came into force in September 2004 requires any action to be taken before the expiration of 12 years from the date on which the right of action accrued. The action taken, on the face of it, was out of time and the appeal was successful.

Before us however it was argued that the Limitation Act did not come into force until September 2004 and was not retrospective. Accordingly section 8(2) did not provide a bar. Also it was contended that the Limitation Act is not contrary to the High Court holding, because section 7(1) of the Act provides that it is to be read subject to the Native Ordinance ...... and any enactment in force relating to registration of title to any land. Ms Taoaba pointed out that s 4(1) of the Native Lands Ordinance confers indefeasibility of title upon native lands and submitted that to dispossess a registered owner of his or her land on the basis of adverse possession would conflict with indefeasibility. Counsel for the respondent responded that although not pleaded as such, he relied upon the English Limitation Act which, prior to 2004, had applied pursuant to the Interpretation and General Clauses Act.

The relationship between indefeasibility of title under the Native Lands Ordinance and the English and Kiribati limitation provisions is potentially complex. However we think that this case falls to be decided on a much simpler basis.

On our analysis of the evidence, the appellants’ family asked the respondent to leave in 1993. At that point his existing licence to occupy was no doubt terminated and he became, for however short a period, a trespasser.

However when the respondent declined to go, the appellants’ family allowed him to remain for another 14 years. In some circumstances that lack of positive action to evict might not have affected the respondent’s status as a trespasser. But the evidence is that throughout that period the appellants’ family was sharing the property with the respondent. Interaction between them was inevitable. Yet there is no suggestion that at any point during that period the family was taking any verbal, physical or legal steps to remove him. It was only in 2007 that the appellants moved to evict the respondent by bringing proceedings in the Magistrates’ Court for that purpose.

It is clear from the evidence that for a long time the appellants would have preferred that the respondent depart. What matters, however, is what was actually communicated between them. It appears that what prompted the appellants to take action was an overcrowding problem of recent origin. As Wateti Tebeia said to the Magistrate in 2007, "Now at this time, that we are having a lot of people, we would want our land back."

We think the proper inference to be that from approximately 1993 to 2007 the appellants were allowing the respondent to remain on the property and that this was the message he would have gleaned from their course of conduct. In legal terms they were creating and perpetuating a licence to occupy. A licence to occupy is legally effective whether motivated by monetary payment, sympathy, or apathy. The licence did not come to an end until the appellants terminated it by commencing proceedings for eviction. At that point the respondent again became a trespasser susceptible to eviction.

It follows that the appellants’ relevant cause of action to evict the respondent did not accrue until termination of his licence to occupy in 2007. Consequently the appellant’s proceedings were not statute-barred.

The appeal is allowed. The Magistrates’ Court order for eviction is reinstated. The respondent must pay the appellants’ costs as agreed or taxed.

Tompkins JA
Fisher JA
Smellie JA