Attorney General iro Director of Lands v Itaaka [2023] KIHC 4; Civil Case 56 of 2015 (16 March 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 56 OF 2015

BETWEEN:
AG IRO DIRECTOR OF LANDS
Applicant

AND:
MAERERE ITAAKA
PERSONS UNKNOWN
Respondents

Date of Hearing: 16 FEBRUARY 2023
Date of Judgment: 16 MARCH 2023

Appearances: Mr Monoo Mweretaka for the Applicant
Mr Titabu Tabane for the Respondents

JUDGMENT

The applicant applies to the Court for an order that the applicant recovers possession of part of the land Tenanoniwae 825(m) at Temakin, Betio pursuant to section 3 of the Squatters Act 2005.

The land in question is owned by the first respondent but currently leased by the Government of Kiribati for 99 years from the 1^st of January 1954. According to the applicant, the respondent occupied the land sometime in 2007 or 2008 without proper approval from the Government. As Counsel for the applicant submitted, the Government started interfering in 2013 by sending eviction notices to the respondent. The respondent ignored the eviction notices on the belief that the Cabinet approved their stay on the land during Teburoro Tito’s Government in the later part of the 1990s and received a key to one of the Meteorological offices to use following the instruction from the Office of the Beretitenti.

The issues:

1. Proper legal authority to approve;

-Whether or not Cabinet in permitting the 1^st respondent to occupy the part of the leased land is valid.

-Whether the Meteorological officials are authorised to give away the key to the office for the respondent to use and reside in.

2. Whether or not voluntary promises or estoppel is applicable in this case.

100. Fiduciary obligation of the Government toward its people
     

The Relevant Laws:

1. Squatters (Recovery of Land) Act 2005
   

Section 3 of the Squatters (Recovery of Land) Act 2005;
“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.”

2. Native Lands Ordinance
   

Section 9 of the Native Lands Ordinance Cap 61;
“No lease or sublease of any native land shall be valid until it has been approved and registered in accordance with the provisions hereinafter contained.”

Section 10(1) of the Native Lands Ordinance
“A lease or sublease of native land, other than a native lease, shall require the approval of the Minister”

100. Constitution

Section 45:
“The executive authority of Kiribati shall vest in the Cabinet, which shall be collectively responsible to the Maneaba ni Maungatabu for the executive functions of the Government.”

Section 47(1):
“The Kauoman-ni-Beretitenti and each of the other Ministers shall be responsible for such business of the Government (including the administration of any department) as the Beretitenti may assign to him.”

The Issues

1. Proper Legal Authority to Approve;
   

As stated above, the concerned plot of land is owned by the first respondent but leased out to the Government for 99 years. The Government uses this plot of land for its Meteorological Office. The first respondent applied to the Government to sublease some part of the land that the Meteorological Department is not using. According to section 10(1) of the Native Lands Ordinance, a sublease requires the minister’s approval. Counsel for the respondent submitted that the powers and functions of the ministers are assigned to each of them by the President as per section 47 of the Constitution. After waiting a long time for the reply to his sublease request, the respondent approached President Tito. He got his verbal approval from Cabinet which was conveyed to him by President Tito.

The Meteorological staff, as agents of the Government also submitted to him the key to one of their small offices to use after one Alexander Teabo, an official from the Office of the Beretitenti, the ministry which looked after the Meteorological Office, paid a visit to look at the proposed area for the first respondent’s sublease. He argued that the approval from the Cabinet which was conveyed to him by the President, followed by the submission of the key to him, is a valid approval for the sublease as the Cabinet is the highest authority of the Executive which looks after the affairs of the Government as per section 45 of the Constitution.

The applicant's case is that the minister's approval meant the minister of the Ministry of Environment and Lands Development (known as MELAD) as commonly practiced since it is the ministry responsible for lands, not the Office of the President nor the Meteorological Office. However, I am not inclined to follow this kind of argument because there are circumstances where one needs to look beyond the scope of ministerial duties and responsibilities. Even if the minister responsible for Lands is meant here, that minister represents the Government or the Executive. In this case, it is alleged that Cabinet, the highest authority for the Executive, gave approval, and the President himself conveyed it. Also, the minister of MELAD is a member of the Cabinet, and as submitted for the respondent, it must be assumed with no evidence to the contrary that this minister was also present in Cabinet when the issue was approved.

Also, the Meteorological Officer in submitting the office key to the first respondent is an implied confirmation of the approval by the Cabinet and President. Further, the first respondent occupied that building since 1998, and there was no evidence of the Department of Lands’ intervention until five years later in 2013 when they sent their first eviction letter.

In fact, after the eviction letter, there was also a letter dated the 19^th of November 2013 from the Lands Department in reply to the first respondent’s letter (marked as Attachment A to the first respondent’s affidavit.) The letter’s content is significant to the first respondent’s case as it shows that the Lands Department acknowledges the claim of the first respondent that the Cabinet approved their stay on the land but that they will work with the Office of the Beretitenti to find the copy of that approval. The letter mentioned that once they see the copy of the Cabinet’s approval, they will process the first respondent’s sublease by the law. At the third last paragraph of the letter, it states as follows;
“The decision of Cabinet, as mentioned here, is seen as important and acknowledged for the formal processing of your sublease and especially regarding the payments you mentioned on your part in fulfilling the decision.”
I see this statement as an acknowledgment by the Department of Lands that the Cabinet’s approval is also valid for initiating the process of sublease registration.

2. Estoppel and Voluntary promises
   

The first respondent submitted that the Cabinet, through President Tito, had approved the sublease. Also, the Meteorological staff’s action in submitting the office key to the first respondent to use confirmed this approval. The first respondent acted upon this approval by adjusting their circumstances, moving onto the land, and occupying the Meteorological building. They lived in the building for five (5) years without eviction notices from the Lands Department. The first respondent argued that the applicant was estopped by its conduct through its officials when they visited the land and surveyed the plot where the first respondent had lived to process the sublease. Counsel for the respondent referred this court to the cases of Ajayi v Briscoe (1964) All ER 556 and Waltons Stores (Interstate) LTD v Maher [1988] HCA 7; (1988) 76 ALR 513 (HC of A), in support of estoppel and voluntary promises. These cases are not directly relevant to the fact of the case at hand however, the principles are.

On the other hand, the applicant submitted that there was no written promise or agreement. I agree that there was no written promise or agreement. Still, the actions of the Cabinet, the President, Meteorological staff and the Department of Land officials, together with the fact that the respondent stayed on the land for five years without the Department of Lands’ intervention, counted as a promise, an undertaking or representation in which the first respondent relied on. In light of this, the Director of Lands was estopped from evicting the respondents.

3. Fiduciary Obligation of the Government toward its people

The first respondent raised this point in support of their case. I have agreed with them on their two points above, so I see no point in discussing this issue here.

Sublease Process
What remains to be done is for the Department of Lands to process the sublease. I did raise a question to both Counsels regarding section 9 of the Native Lands Ordinance which states that the lease and sublease are not valid until approval and registration are done, both Counsels agreed that once this Court finds that approval has been obtained, the next step which is registration is just a process that would follow suit.

Order;
Given the above reasons, I order that the application be dismissed with cost to the first respondent to be taxed if not agreed.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice