Ietimeta v The Attorney General iro Minister for Lands and Agricultural Development [2023] KIHC 5; Civil Case 36 of 2022 (28 March 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 36 OF 2022

BETWEEN:
BAANTARAWA IETIMETA
Applicant

AND:
THE ATTORNEY GENERAL IRO HON RUATEKI TEKAIARA, MINISTER FOR LANDS AND AGRICULTURAL DEVELOPMENT
Respondent

Date of Hearing: 17 MARCH 2023
Date of Judgment: 28 MARCH 2023

Appearances: Mr. Banuera Berina for the Applicant
Ms. Kanrooti Aukitino for the Respondent

JUDGMENT

On 9 November 2022, the applicant, Baantarawa Ietimeta, applied to the Court for leave to make an application for an order of certiorari bringing into this Court for the purpose of it being quashed the decision of the named respondent in issuing an Eviction Notice dated the 1^st November 2022 against the applicant. This Eviction Notice was attached to the applicant’s affidavit sworn on the 9th of November 2022 and marked with the letter ‘A’. The land occupied by the applicant is currently subleased from the Government by the Tokatarawa Association, the copy of the sublease agreement is attached to the applicant’s affidavit, marked with the letter ‘B’.

On 6 February 2023, the police tried to execute this Eviction Notice, and the applicant rushed to the court requesting an urgent hearing of his application for leave. Order 61 r2 (2) of the High Court Civil Procedure Rules allows an application for leave to be made ex-parte to the Court. At the hearing, I told Counsel for the applicant that even though the Rules stipulated for an ex-parte proceeding, it is only fair that I also hear from the respondent. Hence, I issued an Order granting leave subject to further arguments from both parties to determine whether or not leave should be permanently granted. In that same Order, I stayed the execution of the Eviction Notice.

The issues:

1. Proper person or body having authority or possession over the land in question;
2. Validity of the Eviction Notice,

100. Proper Procedure;- Originating Summons or Prerogative Writ.
     

The Relevant Law:

Squatters (Recovery of Land) Act 2005

“11. Powers to remove trespassers on land
(1) If a senior Police officer present at the scene reasonably believes that—
(a) any person is trespassing on land; and
(b) such person is present there with the intention of residing there for any period; and
(c) reasonable steps have been taken by or on behalf of the person entitled to possession of the land to ask him or her to leave; and
(d) the Minister has given approval for the taking of action in respect of the subject land under this Part,

the officer may direct that person to leave the land and to remove any chattels and structures (not being fixtures) he or she has with him or her on the land.

(2) A direction under subsection (1), if not communicated by the Police officer giving the direction, may be communicated by any Police officer at the scene.

(3) Any person who, knowing that a direction under subsection (1) has been given which applies to him or her,—
(a) fails to leave the land as soon as reasonably practicable; or
(b) having left, again enters the land as a trespasser within the period of three months
beginning with the day on which the direction was given, commits an offence and is liable upon conviction to imprisonment for a term not exceeding two years or a fine not exceeding $1000, or both.

(4) Any Police officer who reasonably suspects that a person is committing an offence under this section may arrest that person.

(5) Any Magistrates’ Court shall have jurisdiction to hear, try and determine any criminal proceeding arising in or from a charge made before such court that any person has committed, or is suspected of committing, within the area over which such court has jurisdiction, any offence under this section.”

The Issues

1. Proper person or body having authority or possession over the land in question;

For the applicant, their submission is that the Tokatarawa Association have exclusive possession of the land when they signed the sublease agreement with the Government. Paragraph 4 of the Sublease Agreement states as follows;
“During the term of the sublease, the tenant shall be entitled to the exclusive use of the land, all trees, plants and fixtures and shall pay all rates and taxes which may be payable in respect of the demised land.”

The respondent has no counterargument except that they agree that the Tokatarawa Association subleases the land. I agree with the applicant that the Tokatarawa has exclusive use of the land. This is very clear in paragraph 4 of the Sublease Agreement.

2. Validity of the Eviction Notice
   

The Eviction Notice, as issued by the Minister, arose from section 11(1)(d) of the Squatters (Recovery of Land) Act 2005. Section 11 deals with powers to remove trespassers on the land. This provision has requirements before the removal can be directed to the trespassers. One of these requirements is that reasonable steps have been taken by or on behalf of the person entitled to possession of the land to ask the trespasser to leave the land, refer to section 11(1)(c ).

The applicant argued that he has never been asked by the Tokatarawa Association, the body with exclusive possession of the land, to leave the land. There was also no evidence from the respondent that the eviction notice was issued on behalf of the Association. The Government did not have exclusive use of the land, so their eviction reminders do not count. Further, the Tokatarawa Association authorises the applicant’s stay on the land because he is the secretary of the Association. He has not been removed from his position since he was first appointed.

On the other hand, the respondent tried to argue that the applicant is no longer the secretary of the Association; therefore, his stay on the land is not authorised, hence the eviction notice. Mr. Ukitoori’s affidavit mentioned this in paragraphs 3 to 8. However, these paragraphs were struck out from his affidavit, by consent of both Counsels as they contain hearsay evidence. For ease of reference, I quote these paragraphs here;

3. That the applicant should be evicted from the land plot Teinanikai 800u on the basis that his stay is illegal. He is trespassing on the Government leased land and that he has no authority to stay there as he is no longer a secretary to the Tokatarawa Association. His time as a secretary for the Tokatarawa Association had lapsed ages ago.
4. That the applicant must not stay on the Tokatarawa Association’s sublease. He must know that his time as secretary for the Tokatarawa Association had lapsed and still stayed and he is no longer an interested party to this Tokatarawa Association.
5. That, it is common sense for the applicant to know that the Tokatarawa Association’s sublease must not be used and dwelled and must be left clean and clear only for official purposes and meetings of the entire members of the Association especially when the applicant knows that he is no longer a secretary of this Tokatarawa Association.
6. That there are new executive members of the Tokatarawa Association known as the Tokatarawa Unimwane. These are the new members who run this association currently.
7. That they complained that the applicant must be evicted from this sublease as he has no legal basis to stay there hence this eviction.
8. That I would further say that even though the applicant has been living there for more than 10 years, his staying is unlawful as I have stated in paragraph 3.
   

At the beginning of the hearing, Mr. Berina of Counsel for the applicant, asked for Mr. Ukitoori’s presence to cross-examine him regarding the above paragraphs. Ms. Aukitino of Counsel for the respondent informed this court that Mr Ukitoori was told to attend the hearing but failed to do so. As a result, Mr Berina proposed that the above paragraphs be struck out or removed from the affidavit as they are hearsay. Mr Ukitoori could not have known the truth about this information as he has no relations with or position within the Association. Ms Aukitino agreed that these are hearsay evidence and must be struck out. This information that the applicant is no longer the secretary of the Association was the only basis behind the Government eviction notice, and I agree that there was no evidence that the eviction was issued for the Association. For the reasons put forward by the applicant, I agree that paragraphs 3 to 8 must be struck out. In effect, the respondent no longer has a valid ground to support the lawfulness of the eviction notice. Further, since the condition of section 11(1)(c ) as stated above, was not satisfied, the Eviction Notice is also invalid.

The applicant also submitted that section 11 is limited to the issuance of the directions to leave the land but not the actual eviction of the trespassers. If the trespassers fail to comply with the direction to leave the land, they would be liable to be prosecuted for an offence under section 11(3) but should not be physically forced to move out of the land. Discussing this other point is unnecessary after finding the Eviction Notice invalid.

9. Proper Procedure to follow;- Originating Summons or Prerogative Writ.

The respondent submitted that the proper application to use in this type of case is the Originating Summons rather than the Prerogative Writ since they need to determine whether or not the applicant has the right to reside over the land. The respondent argued that they were using the correct procedure, the prerogative writ, as they needed to ask for an order from the court to quash the minister’s decision regarding the eviction notice. They cannot do that with the Originating Summons.

I agree with the applicant that the proper procedure is the Prerogative Writ instead of the Originating summons. One uses an Originating summons when a dispute concerns a question of law and is unlikely to be any substantial dispute of fact. This present case raises issues of disputed facts, such as whether or not the applicant is no longer the secretary of the Tokatarawa Association and whether or not section 11(1)( c) of the Squatters (Recovery of Land) Act 2005 is satisfied; therefore, the Originating Summons is not an appropriate procedure. Also, the applicant intends to seek a court order to quash the minister’s decision which a prerogative writ can adequately achieve.

Order;

In the circumstances of this case and for the reasons given, leave must be given to the applicant to bring certiorari proceedings. Leave is granted.

For the substantive application itself, I follow the decision of Tabora v Uruatarawa that “rather than putting to the trouble of transversing the merits again...” in this Court, especially since there is overwhelming evidence presented to this Court that favors the granting of certiorari order, I am prepared to grant certiorari.

Leave to issue certiorari is given, and certiorari is granted ordering the decision of the Minister in issuing an Eviction Notice against the applicant dated 1 November 2022 to be brought into this Court for the purpose of it being quashed.

Order accordingly.

Cost to the applicant to be agreed or taxed.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice