Kirata v Kautuntarawa [2023] KIHC 28; Civil Case 29 of 2023 (13 October 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 29 OF 2023

BETWEEN:
REV. BARANITE KIRATA, TRUSTEE FOR KIRIBATI PROTESTANT CHURCH FOR KPC TIBERETI
Applicant

AND:
KAUTU KAUTUNTARAWA, KIATAAKE KAUTUNTARAWA, MANIKIATA TUTU, NEI KAUTU TETEKI
Respondents

Date of Hearing: 22 SEPTEMBER 2023
Date of Judgment: 13 OCTOBER 2023

Appearances: Mr. Banuera Berina for the Applicant
Ms. Taaira Timeon for the Respondents

JUDGMENT

Brief Fact

1. This is a dispute over the land Tebukinnatu 824-i located at Betio. The Applicants built their maneaba on this land after receiving the land from the Government. The Respondents are landowners of Tebukinnatu 824-i. Sometime in May this year, the Respondents entered the land and occupied the maneaba.
   
2. ON 5 June this year, the Applicants filed their application to recover possession of this land from the Respondents pursuant to section 3 of the Squatters (Recovery of Land) Act 2005, which is stated below;
   

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

3. On 24 July this year, the Respondent filed a special case application pursuant to Order 37, rule 2 of the High Court Civil Procedure Rules 1964 regarding the need to determine a question of law stated below;
   

‘whether or not an application to evict the Respondents over the subleased land of the Applicant is competent to be brought under section 3 of the Squatters (Recovery of Land) Act 2005.’

4. At the beginning of the hearing on 22 September, I told Counsels that the court would consider the question of law and the substantive application as they are closely linked.
   

Submissions and Court’s Analysis

5. The Respondents, through Counsel, submitted that the Applicant is not qualified to sue under the Squatters (Recovery of Land) Act as they are not the Government. This is because section 2 of this Act states that ‘land’ means land owned or leased by the Republic.’ They subleased the land, so the land is no longer with the Government.
   
6. The Applicant, on the other hand, responded by stating that the Government leases the land, which makes them qualify as they subleased the land. I agree with the Applicant that even if the Applicant subleased the land, this does not mean that the Government no longer leases the land. When the Government approved the Applicant’s sublease, they also approved the transfer of possession of the land to the Applicant, but the fact remains that the Government still leases the land.
   
7. The Respondent also raised an issue about the proper proceeding, which should be a Writ of Summons. This is based on their argument that the Applicant can not sue under the Squatters (Recovery of Land) Act. The Applicant submitted that they can do both, but since the Government leases the land, it is more appropriate to sue under the Squatters (Recovery of Land) Act. I also agree, as this Act was specifically enacted to deal with lands owned or leased by the Government.
   
8. There is also a dispute regarding the plot of land used in the sublease. The Respondent claimed that the land is Temoaniwae, not Tebukinnatu; therefore, the plot on which the Applicant built their maneaba is Tebukinnatu when they were supposed to build on Temoaniwae. Both parties submitted copies of the Applicant’s sublease agreement with the Government, which are not the same. The document provided by the Respondent has Temoaniwae written on it. At the same time, the other copy from the Applicant has both Temoaniwae and Tebukinnatu written on it as the names of the lands subleased.
   
9. I understand from the above argument that this must be why the Respondent entered the land. However, I have seen the copies of the sublease agreement, which prove that the Applicant indeed has a sublease issued in 2002, as shown on both documents. The Applicant has been enjoying this land for more than twenty years without interference from anyone like the Respondents. Even with the Respondents’ knowledge of the Applicant's occupancy from 2011, as deposed in Kautu Kautuntarawa’s affidavit.
   
10. Therefore, the Applicant is entitled to think that their sublease is located on Tebukinnatu and Temoaniwae, as stated in their sublease agreement. Whether or not that is true, it is an issue irrelevant to the matter before this Court. The Respondent cannot just walk in and take over the land without proving first that the land is theirs and is not leased by the Government, otherwise, they will be regarded as trespassers.
    

Conclusion

11. In light of the above reasons, the application is granted.
    
12. The Applicant can recover possession of their sublease where their maneaba and other properties are located, and the Respondents must surrender possession.
    

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice