Attorney General iro Director of Lands v Atanimoa - Judgment [2006] KIHC 135; 47-06 (28 November 2006)

IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 47 of 2006

Between:

ATTORNEY GENERAL IN RESPECT OF THE DIRECTOR OF LANDS
Applicant

And:

BETA ATANIMOA
1st Respondent

BURENGARENGA BONG (AKA BURENGARENGA PONG)
2nd Respondent

AND OTHERS UNKNOWN AND BEING MEMBERS OF THE HOUSEHOLD OF THE NAMED RESPONDENTS AND PERSONS UNKNOWN
3rd Respondent

For the Applicant: Mr Birimaka Tekanene
For the 1st Respondent: Ms Joelle Grover
For the 2nd Respondent: Mr Karotu Tiba

Date of Hearing: 13 November 2006

JUDGMENT

Application by the Attorney General (iro Director of Lands) pursuant to S.3(2) of the Squatters (Recovery of Lands) Act 2005 to recover possession of part of land Baremaio 672a from the Respondents. The land is at Bikenibeu.

The first respondent, Nei Beta Atanimoa claims to be entitled to possession of the land on which she is living. Nei Beta has purported to lease part of it to the second respondent Burengarenga Bong.

Burengarenga in the last few years has established a store. Burengarenga’s right to remain in occupation depends on Nei Beta’s right to possession. For that reason Ms Grover, counsel for Nei Beta, took the lead in opposing the application.

Nei Beta is now an old lady. She claims to have lived on some part of Baremaio 672a for 30 years or more. Her claim comes through her mother in law, Nei Raua Tororo. Nei Beta’s children are now registered as owners of 672a, subject to a 99 year lease given to the Government in 1952. This lease is the basis of the applicant’s claim in these proceedings. Nei Beta’s children claim to have inherited their grandmother’s right to remain on part of the land. They allow their mother the benefit of the right.

In case No. 78/58, the Lands Court at Abaokoro approved the 99 year lease of Baremaio 672a to the Government. Before doing so, on 4 October 1958, the Court had enquired as to the welfare of a number of persons (from the minute the Court must have been considering approval of several leases), "if their lands is leased by the Ministry of Education". One of the persons was Nei Raua Tororo. Against her name is this note:-

Survive as she has one piece of land which had staying on.

Nei Beta in her affidavit sworn on 27th August 2006:-

.....my children are currently the registered owners of the part of the land on which I am living. The Land was originally owned by their grandmother and my mother-in-law, Raua Tororo, who was registered in 1949. She did not own any other lands ..... the part of the Land that remained with Raua was the part where the power house is located.

Nei Beta confirmed this in her oral evidence.

If Nei Raua owned no other land on which to live but 672a she must have been given part of 672a itself to live on - but which part and how much land? Nei Beta claims it was part where the old power house stands on the ocean side of the main road. Yet it appears that for many years Nei Raua (and Nei Beta) lived on part of 672a on the lagoon side.

Although Baremaio 672a stretches from ocean to lagoon, the lease before the Court is over only that part of 672a on the ocean side of the main road. That part of 672a on the lagoon side is the subject to a separate lease.

The Director of Lands, Mr Tebutonga Ereata, gave evidence for the applicant. As always Mr Ereata’s evidence was frank and helpful to the Court. In cross examination he acknowledged the significance of the note made by the Lands Court in CN 78/58. He agreed that there is no indication of what land Nei Raua had left to live on. My note of his evidence:-

There could easily be some document to the effect that Nei Raua be permitted to remain on part of the land but such not found. That could explain the notation (made by the Lands Court in CN 78/58).

Nei Raua was probably given in 1952 the right to live on some part of 672a when the Government entered into the lease. Nei Beta is now enjoying that right. But which part of what land? No one can say. It may have been on the lagoon side or it may have been, as Nei Beta asserts, on the ocean side where the old power house stands and which she has been occupying now for more than 10 years. No one knows for sure.

Mr Tekanene tried to make something of the prosecution in 1994 of Nei Beta for criminal trespass. It seems to have been alleged that she interfered with persons going into the old power house. The prosecution failed. Notice of appeal was given but the Government never went on with it. The appeal was struck out in 2001 for want of prosecution. It is not relevant to this application.

The onus of proof is on the applicant but how heavy is that onus? The Act is penal in nature. That being so, the onus should be regarded as heavier than on the balance of probabilities although not as heavy as beyond reasonable doubt. It is one of strict proof. The applicant must prove strictly his right to recover possession of the land.

The first respondent is probably entitled to occupy some part of 672a but which part? The applicant has failed to prove strictly that she is not entitled to occupy that part (whatever its size, position and boundaries may be) which she is occupying. The application for recovery of "possession of part of land Baremaio 672a" from the first respondent fails.

The application with regard to the second respondent therefore also fails. Burengarenga’s successful opposition to the application depended on Nei Beta’s successful opposition. Nei Beta has been successful.

Had the decision been otherwise, had the application been granted, I would have been in a quandary as to how to frame an order. The application is to recover possession "of part of land ....." but which part? The appeal is not to recover possession of the whole of Baremaio 672a but only of an undefined part. Not to mention the difficulty of making an order binding on "others unknown and being members of the household of the named respondents and persons unknown". Those are problems now perhaps to be solved another day.

The application is refused.

Dated the 28th day of November 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice