Tebwara v Baree - Judgment [2007] KIHC 95; Civil Case 71 of 2007 (22 May 2007)

In the High Court of Kiribati
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 71 of 2007

Between:

Teraobe Tebwara
Applicant

And:

Bateriki Baree
Aretaake Baree
Tiinaa Tebwara
Tabanou Tebwara
Temarena Tebwara
Respondents

For the Applicant: Ms Joelle Grover
For the 1st & 2nd Respondents: Ms Berenike Iuta
For the 3rd, 4th & 5th Respondents: Ms Botika Maitinnara

Date of Hearing: 17 May 2007

JUDGMENT

Originally this was an application for review of the decision in CN 426/99. I pointed out to Ms Grover that the time limit within which to apply for review is 12 months (section 81(4) of the Magistrates’ Courts Ordinance). The only remedy now open to her client is by way of application for certiorari. Ms Grover undertook to amend the application. All parties agreed that the hearing continue as if this had all along been an application for certiorari. The amendment has now been filed. I have granted the application to amend.

Another complication was the failure to join the applicant’s brother Ngauea who lives in New Zealand. It seems (paragraph 6 of the applicant’s affidavit) that the applicant had lost touch with him. On the morning of the hearing Ms Grover tendered a fax:-

I’m Ngauea Tebaara wish the land of Bikenikua (742a) to be distributed among the five (5) children of Tebaara Tabanou. I want the share of Tiina Tebaara to be given to Ten Bwateriki Bare but not half of Bikenikua.

Thank you

Ngauea Tabaara

About 1992 the first and second respondents, Bateriki Baree and his wife Aretaake Baree, bought from Tiina Tebwara his undivided share in the land at Ambo, Bikenuka 742a. The land was owned in undivided shares by Tiina and his four siblings (the applicant, Tabanou Tebwara, Temarena Tebwara and Ngauea). The sale was not registered until 1999. It seems from the minutes that by the time of registration Bateriki and Aretaake had paid $10,000 for the land.

In CN 426/99, Tiina, Tabanou and Temarena went to Court to have the sale to Bateriki and Aretaake registered. The Single Magistrate was told (by Tabanou) that his brothers and sisters who were not there had "been given their shares, this plot belongs to Tiina". The Single Magistrate had asked Tiina:-

Q: If you sell half off this land how would go with your kids.

A: There won’t be a problem, also with my brothers & sisters.

The Single Magistrate ordered:

The name of Bateriki Baree with his wife namely Aretaake Bare shall be registered over half of the land namely Bikenuka 742a from the lagoon side to the ocean side for he purchased it for $10,000.

This land which has been purchased is therefore a share of Tiina also.

Bateriki in the same year:

....built a permanent house there which cost me over $26,000.00. This does not include the second permanent house on the land which I have also built, costing me $7,000.00 and a toilet block which cost about $3,000 and a sea-wall on the ocean side. (Paragraph 11 of his affidavit, sworn 10th May 2007).

Ms Grover has conceded that Teraobe, even though she was not summoned to appear, knew of CN 426/99 within a few months afterwards. It must have been obvious that something had happened as buildings were erected on the land and a small business established. So the applicant knew about seven years ago that Bateriki was the occupier of part of the land. That should have put her on notice.

Between now and 1999 other parcels of land have been sold (to the late Johnny Kum Kee and to his wife Denise) and the boundary of the land sold to the late Johnny Kum Kee determined. There has been no determination of the boundaries of Bateriki’s and Aretaake’s land. By now, according to Ms Grover they have built buildings covering about half of the total are of Bikenuka 742a.

In 2004 (CN 28/04) Tiina and Tabanou applied for a boundary determination. Bateriki Baree was not a party. Bateriki applied for a review of the determination. When the application came before the High Court the determination was quashed by consent and the case returned to the Magistrates’ Court for rehearing.

According to my memorandum of 9th February 2007 (a copy of which is appended to this judgment and should be read with it) the Single Magistrate on rehearing accepted the submission of the Tebwara family that in CN 426/99 the Single Magistrate had made a mistake. He should not have ordered that Bateriki and Aretaake have half the land: he should have ordered that they have only one fifth – Tiina’s undivided share. Be that as it may the decision of the Single Magistrate in CN 426/99 is plain – " --- shall be registered over half of the land ....". The parties must have heard the Single Magistrate say that: they did not complain it was a mistake. Reading the minutes it is far from plain that the magistrate did make a mistake.

What is to be done? Ms Grover argued that I should allow the application, quash the 1999 decision: that would leave the parties to come to some arrangement among themselves. A most optimistic argument, perhaps too optimistic.

Bateriki and Aretaake have spent $10,000 buying the land and well over $30,000 improving it. If the decision is quashed they will lose a substantial sum of money.

Because so long has passed since the decision in CN 426/99 and Bateriki and Aretaake are entitled to assume that their rights over half the land (even though the boundaries have not yet been determined) are indefeasible, the application for certiorari is refused.

Dated the 22nd day of May 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice