Kiteon v Waikatabeaki [2025] KICA 2; Land Appeal 4 of 2024 (14 March 2025)

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

LAND APPEAL NO. 4 OF 2024

BETWEEN

NABUTI KITEON
TEARATU KITEON
TOAKEBO KITEON
KATAUA KITEON
Appellants

AND

JOSEPHINE WAIKATABEAKI WITH SIBLINGS
Respondents

Before: Sir Gibbs, JA
Nelson, JA
Khan, JA
Date of Hearing: 12 December 2024

Date of Judgement: 14 March 2025

APPEARANCES:
Counsel for the Appellants: T Timeon
Counsel for the Respondents: K Ariera

JUDGEMENT BY THE COURT

INTRODUCTION

1. This appeal is from the judgement of the High Court in its land jurisdiction which reviewed the decision of a Magistrates Court in case number Beltan 139/23 to deregister the respondent’s father, Waikatabeki Kiteon’s upon his death and register themselves as his next of kin over land Tetabo 815-b/2 located in Tokoronga. This land was co-owned by the respondent’s father and the appellants who received their title in case number BA 7/92.
   
2. The appellants appeared before the Magistrates Court in case number 139/23 and made an ex parte application to deregister their father’s name and to the register themselves as his next of kin.
   
3. The applicant felt aggrieved that he was no invited to attend the hearing in the Magistrates Court and made an application to the High Court to review the decision of the Magistrates Court under the provisions of section 81 of the Magistrates Court Ordinance.
   
4. The appellant in the review application submitted that upon the respondent’s father’s death, his interest had passed to them and his father did not have any interest to pass on to the respondents; and that the appellant was an interested party and should have been invited to attend the hearing in case number 139/23; and failure to invite them was a breach of natural justice.
   
5. The High Court addressed those issues in the review application and made a finding that:
   
   1. That the respondent’s father had a title in the land 815-b/2 which was co-owned by the appellants;
      
   2. That the respondent’s father’s interest passed on to them when they appeared in the Magistrates Court in Case Number 139/23 and in doing so the appellants interest was not affected and therefore there was no need to invite the appellants to attend the hearing;
      
   100. That the rule of survivorship does not apply in Kiribati.
        

APPEAL

6. The appellants were not happy with the decision of the High Court and filed this appeal and the only ground of appeal is:
   

GROUND OF APPEAL

Erroneous in law – Failed to take into consideration that the appellants at the time of the transfer land Tetabo 815-b/2 to the respondents in case number Beltan 139/23 were the same land owners. Since they were the owners of the land at the time of transfer and persons interested in that land pursuant to section 81 of the Magistrates Court Ordinance, their arugment in connection with the fact that they were the only surviving land owners and the land in question had not been distributed before the passing of the deceased sibling Waikatabeaki Kiteon, the father of the respondents, the respondents had nothing to inherit from the deceased father under the rule of survivorship. This argument was not properly addressed before the Magistrates Court in case number Beltan 139/23 because the Appellants were not served by the Respondents when they appeared in Court to transfer the same land to them so a breach of natural justice was not properly observed.

SUBMISSIONS

7. The appellant’s submission is that they are co-owners and they were an interested party so they should have been afforded the right to attend the hearing in case number 139/23; and that if they were invited, they would have raised the issue as to what interest was being passed on to the respondents deceased father to them as the land was jointly “owned” by the appellants and the respondents father.
   
8. Miss Timeon posed a question for us to answer and the question is:
   

“... to consider is what portion the respondents are entitled to inherit when the land in question has not been subdivided?”

9. The respondents counsel submits that this was a simple case of deregistration of the father’s death and registration of the Respondents as his next of kin as provided for in section 11 of the Native Land Ordinance; and that both the appellants and respondents were co-owners of the land and that case number 139/23 did not alter the appellants interests and therefore there was no need for the appellants to be invited to attend the hearing.
   
10. The Respondents counsel further submitted that the principle of survivorship does not apply to land in Kiribati and that the appellants contention that it applies is clearly flawed.
    

CONSIDERATION

11. We dealt with identical issues in the case of Wiauea v Rui and Teaorerei Land Appeal 5 of 2024 in which we also discussed section 81 of the Magistrates Court Ordinance. We referred to the case of Atanta v Tabaua^[1] and cited what was stated at [17] therein, viz:
    

[17] The third point is that the s 81 review jurisdiction conferred by the Magistrates’ Court Ordinance is an enabling provision. It confers powers on the High Court which it would not otherwise have. Section 81(1) gives the High Court the power to judicially review on its own motion. The Court does not have to wait for a petition or application from some interested person. There is no prerogative equivalent to that power. Section 81(1) also authorises the High Court to exercise all the powers, authority and jurisdiction of the Magistrates’ Court. There is no prerogative equivalent to that power either. In the Magistrates’ Courts Ordinance Parliament has seen fit to confer additional powers which the High Court would not have had if reliant solely upon prerogative powers. But it does not follow that by giving the High Court additional powers, Parliament intended to take away those prerogative powers which it would have had in any event.

12. In Wiauea v Rui and Teaorerei we gave our reasons as to why the principles of survivorship are not applicable to land in Kiribati and we adopt those reasons for this matter as well. The Land Review Court made a finding that the rule of survivorship is invalid and we support those findings.
    
13. At [14] of Wiauea v Rui and Teaorerei we explained as to how legal title to native land is obtained and we stated at [14] as follows:

[14] She further submitted that the legal title to land is only created upon registration in the Register and she relied on the case of The Attorney General of the Republic of Kiribati v Ngatau^[2] where it is stated at [20] as follows:

[20] Before proceeding further we would summarise the history of the land from a legal perspective as follows:

1. The Native Lands Register created under s 64 of the Magistrates' Court Ordinance was and is the sole record of legal title to native land. Interests in native land derived from succession, purchase, or court order, remain mere equitable interests unless and until entered on that Register. (Emphasis added)
   

14. In this case the legal title to the land was obtained by succession, that is, upon the death of the respondent’s father, then to the Respondents (pursuant to section 11 of the Native Land Ordinance) and through the court order in case number 139/23 the respondents obtained their “legal title” by making the ex parte application in case number 139/23 and in doing so they were complying with the provisions of section 11 of the Native Land Ordinance. The appellants rights were not affected and, in fact their rights remain intact and therefore there was no need for them to be invited to attend the hearing.
    
15. In light of the above findings, it is not necessary for us to address the question of subdivision.
    
16. In the circumstances the appeal is dismissed and the appellants are ordered to pay the respondents costs to be taxed if not agreed.
    

DATED this day of March 2025

Sir Gibbs, JA

Nelson, JA

Khan, JA

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^[1] [2005] KACA; Land Appeal 01 of 2005 (8 August 2005)
^[2] [2010] KICA 6; Civil Appeal 08 of 2010 (a8 August 2010)