Karotu v Attorney General [2024] KIHC 17; Civil Case 71 of 2019 (24 July 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 71 OF 2019

BETWEEN:
RINEIETA KAROTU WITH SISTERS AND ISSUES OF KORIRI ROAROA AND KABAUA RABANGAKI
Plaintiff

AND:
ATTORNEY GENERAL
Defendant

Date of Hearing: 24 JUNE 2024, 5 JULY 2024 (w/submission)
Date of Judgment: 24 JULY 2024

Appearances: Ms. Taaira Timeon for the Plaintiff
Mr. Nenebwati Tainimaki for the Defendant

JUDGMENT

Introduction:

1. By Writ of Summons filed on 1 July 2019, the plaintiff sued the defendant for the unpaid lease of 59 years concerning their family land, Teabanimate 592-i, located at Tuarabu, Bonriki.
   
2. The defendant is sued on behalf of the Republic and the Lands Department pursuant to the Proceedings By and Against The Republic, Cap 76A. The Government acquired the land in dispute for public use, a water reserve, in the 1970s or before. The exact date was not clear from the evidence.
   
3. Both parties called one witness each and tendered their affidavit supporting their case. The only defence raised by the defendant is that the plaintiff must carry out a boundary determination of their land Teabanimate 592-I and apply for a survey before compensation or lease could be paid. Therefore, the defendant agrees that since they use the land for a public purpose, the landowners should be compensated by payment of annual rent.
   
4. The defendant disagrees with the amount claimed. This is the only issue remaining. Paragraphs 5 and 6 of the Statement of Claim spell out the plaintiff’s claims as follows;
   

- Unpaid rent for 59 years x $2400 x 0.50 acre = $70, 800

- General damages of $3000

- cost and court fee of $50

- interest of 5% from the date of judgment to the date of payment.

5. The defendant’s evidence shows that the land has not been surveyed, and the boundary is yet to be determined, which is necessary as there is an ongoing dispute between the plaintiff and their neighbors. The plaintiff denied having a dispute with their neighbours, but the disagreement is with some people living on their land claiming ownership. According to the plaintiff, their ownership is determined from CN 220/95. Paragraph 5 of the plaintiff Rineieta’s affidavit states, “Our ownership derived from the wording of the minutes Koriri Roaroa with issues of Kabaua. Kabaua married Tarakai and had children of Karotu, Roaroa, Tebaiti, Timwamwa, and Maria. I and Beta are daughters of Karotu.”
   
6. The defendant does not dispute the plaintiff’s ownership, so CN 220/95 is irrelevant. I agree that ownership should not be a problem as long as the plaintiff is registered over the land, which a certificate of ownership can prove.
   
7. As mentioned in paragraph 4 above, the defendant agrees to pay; however, they need the plaintiff to determine their boundary and survey their land before payment can be made. This is stated in paragraphs 3, 4, and 5 of the defendant’s witness, which indicate the reason for the delay in payment. The defendant did not show why these were required before payment. However, the reason for this is evident from the plaintiff’s formula for unpaid rent. The plaintiff specified in their evidence (refer to the previous paragraph) that the formula used is the land size calculated with the rent rate and the number of unpaid years. The defendant does not dispute this formula. According to the plaintiff, the size of their land is 0.50 acres, the rate is $2400 for 59 unpaid years.
   
8. The defendant argued that the rate could not be the same throughout the years. It could change every three years, either increasing or remaining the same. According to the defendant, the Government has the legal obligation to review the rent every three years. The plaintiff did not prove how they came about with the rate of $2400. The claim is for 59 years from 1974, per paragraph 4 of Rineieta’s affidavit. I agree with the defendant that the rate may increase or remain after the reviews. However, whatever the rate was for the particular periods claimed, the defendant should know as they are in charge of the review, and they have the records of rates used for past years. Therefore, this issue should not be a problem.
   
9. The real issue is the size of the land. This is critical in determining the claim. The plaintiff stated when cross-examined that the survey had been done a long time ago with Nei Koriri, but the plaintiff was not specific on the date. There was also no documentary evidence to show the survey report or map for this court to accept that their land size is 0.50 acres. If there had been a survey, the defendant must know as they keep records of surveys conducted all over the island. They said the plaintiff’s land has not been surveyed; thus, I am inclined to accept the defendant's evidence. I have mentioned above that the land size is critical in determining the amount payable to the plaintiff as per the formula used by the plaintiff. Therefore, I accept the defendant’s contention that the total amount claimed cannot be ascertained without knowing the size of the land.
   

Summary

10. In light of the above evidence, there is no dispute that the defendant must compensate the plaintiff for using their land.
    
11. According to the formula used by the plaintiff, the plaintiff’s land size must be known; therefore, its boundaries must be determined and surveyed. There is no proof that the survey or boundary determination had been achieved. The plaintiff must apply for their land survey and boundary to be determined. This should follow the proper procedure before the magistrate courts. Therefore, the plaintiff’s claim of $70,800 is not accepted. Compensation must be paid once the size of the land is determined.
    
12. The claim for general damages of $3000 concerns the late payment of the rent and the natural feelings of frustration and distress that commonly arise from this. The evidence shows that the delay in payment happened because the land boundaries need to be determined and surveyed first. This explains the delay; therefore, the claim for general damages is not allowed.
    

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice