Raidi v Tekaieti [2023] KIHC 21; Civil Review 21 of 2019 (13 October 2023)

IN THE HIGH COURT OF KIRIBATI

High Court Civil Review 21 of 2019

BETWEEN:	MELISA RAIDI MTMM RURETE TOANIMATANG, TENANO TEWETI Applicants
AND	KAREE TEKAIETI, ITINNATA BOUBOU 1st Respondents MATANG KAMATIE, KOIN AKOI
	2nd Respondents
Date of Hearing: Date of Judgment:	21 September 2023 13 October 2023
Appearances:	Ms. Botika Maitinnara for Applicants Ms. Taoing Taoaba 1st Respondents
	Mr. Banuera Berina for 2nd Respondents

J U D G M E N T

Introduction

1. This is an application for review of a decision of the magistrate court in case number BD 23/18 dated 3 September 2018 regarding the boundary determination of the land Tannakonmatang 787 located in Teaoraereke.
   
2. The application is made pursuant to section 81(3) of the Magistrate Court Ordinance, which gives this Court the power to review the decision or any order of the Magistrate Court issued within twelve months of the date of the decision or order. The application was filed on 13 June 2019, which is well within the allowance of twelve months from the date of the judgment, 3 September 2018.
   

Ground for judicial review

3. Several grounds for review are listed below;
   1. The boundary determination was carried out between the 1^st and 2^nd Respondents without summoning the Applicants, who are also owners of Tannakonimatang 787u/1,
   2. The 1st Respondent owns Tannakonimatang 787u/2 while 2nd Respondent are adjoining landowners of the land Taruti 788a,
   100. There was no boundary determination being held between the Applicants and 1^st Respondent apart from registering the 1^st Respondent’s name over the part of the land Tannakonimatang by the Applicant’s mother. This boundary determination fraudulently established the boundary of the 1^st Respondent and the Applicants without summoning them to present their side of the story,
   4. The 1^st Respondent knew that the Applicants were interested parties to this case but refused to summon them,
   5. And the Applicants were not a party to the case, they have no right of appeal, and therefore, their only means is by way of review,
   6. Injustice and hardship shall be occasioned if the decision is not reviewed,
   7. The decision given does not reflect the land ownership of the parties but deals with the plot Tannakonimatang 787a,
   8. Further grounds are shown in the affidavit filed herein.
      

Relief Sought

4. The Applicants sought the following relief
   1. That the case number BD 23/2018 be quashed,
   2. That an Order for the Applicants and 1^st Respondent for their boundary to be determined first before they can have a boundary defined with the 2^nd Respondent,
   100. Such further order or orders as this Honourable Court may deem just.
        

Parties’ Positions and Court Analysis

5. The Applicants’ position is that the boundary determination of the land Tannakonimatang 787u, which both the Applicants and 1^st Respondent occupy, has not been determined. The 1^st Respondent was given a portion of Tannakonimatng to live on by the first-named Applicant’s mother. The Applicants occupy 787 u/1, and the 1^st Respondent lives on 787u/2. These are the agreed facts.
   
6. The 1^st Respondent initiated the boundary determination of her land, Tannakonimatang 787u/2, in BD 23/18. She invited the owners of the adjoining lands on both the Betio and Bikenibeu sides, who are the Respondents in this review case: Itinnata Bobou from the Bikenibeu side and Matang Kamatie and Koin Akoi from the Betio side.
   
7. The Applicants allege that the land Tannakonimatang runs from the ocean to the lagoon. They occupy the lagoon side, and the 1^st Respondent was given the ocean side to live on. The Applicants claim that the stones erected as boundaries for the Betio and Bikenibeu sides of the 1^st Respondent’s land had reduced the size of their land, Tannakonimatang 787u/1.
   
8. In the submissions for both Respondents, BD 23/18 only determined the boundaries of the 1^st Respondent’s land, Tannakonimatang 787u/2, with adjoining lands of the 2^nd Respondents on Betio and Bikenubeu sides; therefore, it does not affect the Applicants’ boundary.
   
9. Counsel for the 1^st Respondent submits that CN 115/01, a different case, is more likely to affect the Applicants’ boundary. This may be so, but I find CN 115/01 irrelevant because it was only about identifying the plot of the 1^st Respondent on the land.
   
10. Counsel for the 2^nd Respondent submits that although the Applicants claimed the size of their land had been affected by the decision of BD 23/18, the supporting affidavit of Rurete Toanimatang complained about something else; that the 1^st Respondent threatened to evict their people who reside on the half of Tannakonimatang that belongs to them. Hence, the issue is between them and the 1^st Respondent; it is not about their boundaries with the 2^nd Respondent. I have read this affidavit, and in my view, the affidavit also supported the case that the boundaries fixed for the two sides of Tannakonimatang 787u/2, in effect, reduced the land size of Tannakonimatang 787u/1.
    
11. It is essential at this point to mention that at the end of the hearing on 21 September, I asked the parties to submit the sketch map to assist this court with the parties’ plots or location on the land, Tannakonimatang 787u/2, the subject matter of BD 23/18. I did not receive any sketches.
    
12. My understanding from the submissions is that the land Tannakonimatang 787u runs from the ocean to the lagoon. Minutes BD 23/18 dated 31 May 2018, shows that the boundary determination concerns the Betio and Bikenibeu sides of Tannakonimatang 787u/2. Tannakonimatang 787 was divided in half between the Applicants, who own 787u/1, on the lagoon side, and the 1^st Respondent, 787u/2, on the ocean side. Therefore, the Applicants and 1^st Respondent share the two sides, on the Betio and Bikenibeu sides. As mentioned, the adjoining landowners on their Betio side are Koin Akoi and Matang Kamatie, and Itinnata Boubou is their adjoining neighbor on their Bikenibeu side. Therefore, the decision of BD 23/18 is not only for Tannakonimatang 787u/2 boundaries but also concerns Tannakonimatang 787u/1, which the Applicants own. They claimed their land had been reduced in size because of the boundaries fixed in BD 23/18, and they are stuck with these boundaries. Consequently, I agree with the Applicants that they should be invited to the proceedings of BD 23/18 as interested parties.
    

Conclusion

13. In light of the reasons stated above, this Court finds that the application for review made under section 81(3) of the Magistrate Court Ordinance is hereby granted.
    
14. The magistrate court decision in BD 23/18 is set aside.
    
15. The case is remitted to the magistrate court for a rehearing, and the magistrate court must ensure that all interested parties, especially the named Applicants, are summoned.
    
16. Cost to the Applicants to be taxed if not agreed.
    

ORDER accordingly.

HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice