Tenonoki v Republic [2017] KIHC 24; Criminal Appeal 4 of 2016 (30 May 2017)

IN THE HIGH COURT OF KIRIBATI 2017

CRIMINAL APPEAL NO. 4 OF 2016
(HELD ON KIRITIMATI ISLAND)

[TAWANA TENONOKI APPELLANT
[
BETWEEN [AND
[
[THE REPUBLIC RESPONDENT

Before: The Hon Chief Justice Sir John Muria

18 October 2016

Mr Raweita Beniata for Appellant
Ms Pauline Beiatau for Respondent

JUDGMENT

Muria, CJ: The appellant was charged in the Magistrates’ Court with the following offences, namely:

Count 1 Unlawfully developing and re-developing of Government lands, contrary to s.17 of the Land Planning Ordinance (Cap 48)

Count 2 Criminal Trespass contrary to s. 182(1) of the Penal Code.

2. The appellant pleaded Not Guilty to both counts.

3. Following a trial, the Magistrates’ Court found the appellant guilty and convicted him. He was sentenced to:
   

Count 1 $500.00 fine to be paid within 4 months, in default one (1) month’s imprisonment

Count 2 Six months’ imprisonment, suspended for one year.

Notice of Appeal

4. The appellant appealed against his conviction. He raised three grounds of appeal, namely:

1. The Magistrates’ Court erred in law and in fact in finding the Appellant guilty when in fact the onus of proof is clearly not discharged.
   
2. The verdict is against the weight of evidence.
   
3. The Magistrates’ Court erred in law in deciding against its own decision given earlier on 22 August 2014.
   

5. Mr Beniata of Counsel for the appellant submitted that the appellant who was one of the squatters on Government land in Kiritimati Island was given notice to vacate Government land. The appellant said she had left the land and at the time of her arrest, she was residing in another place, at Nangitio Lease.

6. But it is important to note, in this case, that the appellant’s house was still standing in the Government land from which she was given notice to vacate. Her belongings were also still in her house.

7. The evidence in the Court below shows that the appellant was one of squatters on Government land in Kiritimati Island. The appellant’s name was not on the list kept by the Lands Office of those who applied for and were given leases over the Government land.

8. The appellant’s story is that she was told to stay on Government land in 1997. She said she had right to reside on the land because it is owned by the Government and public. She also said she had applied for business lease in 1997 and still waiting for approval.

10. The Single Magistrate considered the evidence on the two charges. On the charge of developing and re-developing land without permission, the evidence clearly shows that the appellant did not have permission to reside on the Government land. She was not given any lease over Government land. She did not have planning permission to undertake any construction on the land.

11. Despite her not having a lease over the land and not obtaining a planning permission the appellant went ahead and constructed her house on Government land. That is contrary to section 17 of the Land Planning Ordinance (Cap 48). The Single Magistrate was therefore correct to find the appellant guilty of breaching section 17 of the Land Planning Ordinance.

12. On the charge of trespass contrary to section 182 of the Penal Code, the evidence against the appellant is irrefutable. She constructed her house on Government land without permission. That is trespass. She was given notice to vacate the land. She left but her house still remained on the land together with her belongings. That is continuing trespass. She deliberately allowed her house and belongings to remain on the Government land.

13. The evidence against the appellant on both charges was overwhelming. The Single Magistrate was clearly right to find her guilty on both charges.

14. The appeal against conviction is dismissed.

15. There is no appeal against sentence. The sentence imposed by the Single Magistrate on each charge remains unaffected.

Dated the 30^th day of May 2017

SIR JOHN MURIA
Chief Justice