Attorney General iro Director of Lands v Tabomoa [2023] KIHC 20; Civil Case 54 of 2015 (25 August 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 54 OF 2015

BETWEEN:
ATTORNEY GENERAL iro DIRECTOR OF LANDS Applicant

AND:
BWEBWENIBERU TABOMOA
1^ST Respondent

AND:
PERSONS UNKNOWN
2^ND Respondent

Date of Hearing: 9 AUGUST 2023
Date of Judgment: 25 AUGUST 2023

Appearances: Mr. Monoo Mweretaka for the Applicant
Mr. Titabu Tabane for the Respondent

JUDGMENT

Introduction

1. This is an application to recover possession of the portion of the land Terawabono 820a/2 pursuant to section 3(1) of the Squatters (Recovery of Lands) Act 2005 that the respondents occupy.
   
2. Section 3(1) is quoted below;

“Any person who claims possession of land which he/she alleges is occupied by a person who entered into or remained in occupation without his/her license or consent, or that of any predecessor in title, may make application to the Court to recover possession of the land.”

3. It is not disputed that the Government has leased the land in question for 99 years since 1 January 1964; therefore, it still has 30 plus more years of exclusive rights over this land under the lease agreement.
   

Parties’ Position

4. The applicant refers this court to section 10(1) of the Native Lands Ordinance, which states that a lease or sublease of native land, other than a native lease, shall require the approval of the Minister. They admit that the respondent had filed his application for a sublease, but the minister’s approval had not been issued. They had sent several eviction letters to the respondent from 2010 to 2013. In 2015, they filed this case to recover possession of the land from the respondent, who continues to remain on the land.
   
5. On the other hand, the respondent argues that they remained on the land after getting the implied approval of the ministers responsible for Land in support of their sublease. Over time, since they moved onto the land, they had visited three ministers accountable to the Lands Office regarding their sublease application. They were assured that there would be no problem as the Government would return the unused part of the leased lands to the landowners.
   
6. The respondent relies on the principle of legitimate expectation in the judicial review of the representation of a public authority. They argue that where a lawful promise has induced legitimate expectation of a substantive benefit, the court has to decide whether to frustrate an expectation so unfair that taking a new and different course will amount to an abuse of power.
   
7. The respondent also raises estoppel in that because of the assurances by the ministers, the respondent has restructured her affairs. There is no notice to retract the promise, and the respondent could not fulfill her side of the promise to build her home because of the breach of the minister’s promise not to evict her. The respondent refers to these cases to support her point: Foakes v Beer (18840 9 App case 605, Central London Property Trust Ltd v High Trees House Ltd [1946] EWHC KB 1; (1947) KB 130, Ajayi v Briscoe (1964) 3 All ER 556
   
8. As the respondent submits, voluntary promise is an extension of the equitable estoppel principle stated above. The respondent states that the applicant is estopped by its conduct through its officials, who had not been acting to address the respondent’s sublease application. The cases of Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7 and Crabb v Arun District Council [1975] EWCA Civ 7; [1975] 3 All ER 865 are referred to in support of this argument.
   
9. The respondent also submits that the applicant has a fiduciary obligation to its people, the respondent, in this case. Trustees owe a fiduciary obligation to those they act as trustees to always act in their best interest. The applicant, being the State, is the trustee for the people. The case of Mabo v Queensland [1992] HCA 23; (1992) 175 CLR 1 is cited as an authority.
   

Court’s Analysis

10. The fact shows that the respondent went on the land before or sometime in 2010, as the first eviction letter was received in 2010. Later, in November 2011, the respondent applied for their sublease. They have yet to receive a reply to this sublease application. The respondent continued to receive eviction letters until 2013, and finally, in 2015, the applicant filed this case with the High Court for repossession of the land.
    
11. The respondent paid his first visit to the minister responsible in 2016. He received an assurance from that minister that he would ask the Cabinet to return the unused part of the leased lands to the landowners. He also visited the new minister for lands in 2018 and was told the same message that the Government would return the unused part of the leased lands to the landowners. He also visited the current minister, and the same message was relayed to him.
    
12. The critical issue here is whether or not the respondent has the consent or license to occupy the land as per the requirement of section 3 of the Squatters (Recovery of Land) Act.
    
13. In my view, the minister's approval under section 10(1) of the Native Lands Ordinance can also count as the consent required in section 3 of the Squatter Act. However, the sublease request has yet to be formalised in this case. The question is whether or not the assurances by the three ministers that the Government would return the unused part of the land could be counted as consent or license to occupy the land as per section 3 above.
    
14. The assurance is a promise. So, the promise is for the Government to return the unused portions of the leased lands to the landowners. This is relevant to the respondent’s case as the respondent’s mother is the landowner of the leased land, which is in dispute.
    
15. The ministers’ assurance to the respondent to return the unused parts of the leased land to the landowners was never fulfilled, even when this case was heard. That assurance may happen in the future; that being said, it is irrelevant at this time. Through the Director of Lands, the Government is applying to this Court to repossess the land from the respondents. Until now, the respondent and other persons living on this land have not attained the minister’s consent or license to occupy the land for the purpose of section 3 of the relevant Act. They have the assurance that the unused part of the leased lands would be returned to the landowners; this remains to be seen in the future.
    
16. Consequently, the principles of legitimate expectation, voluntary promise, estoppel, and fiduciary obligation are not applicable since they all rely on the ministers’ assurance, which is irrelevant, as explained above.
    

Summary

17. In light of the above, the Court makes the following decision;
    1. That the application is granted,
    2. That the applicant can recover possession of the portion of the land Terawabono 820a/2 that the respondents occupy, and
    100. That the respondents must surrender possession.
         
18. Cost is awarded to the applicant, to be taxed if not agreed.
    

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice