Bakabane v Baikia [2024] KIHC 18; Civil Case 44 of 2019; Miscellaneous Application 83 of 2021 (20 August 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 44 OF 2019
MISCELLANEOUS APPLICATION 83 OF 2021

BETWEEN:
NIKORA BAKABANE
Applicant

AND:
KABOTERENGA BAIKIA
First Respondent

TEKIMWA TEKAETITAEKA
Second Respondent

TABAKIA TABUKIA
Third Respondent

Date of Hearing: 22 JULY 2024
Date of Judgment: 20 AUGUST 2024

Appearances: Mr. Banuera Berina for the Applicant
Mr. Birimwaka Tekanene for the Respondent

JUDGMENT

Introduction:

1. This is an application for an extension of time and leave to apply for an order of certiorari to quash the magistrate court's decision in case number BD 04/20. The basis of the application for review is that the decision of the magistrate court in BD 04/20 concerns the determination of the boundaries of land Terereua 278m owned by the first respondent and the adjoining land that the third respondent resided on but the applicant purports to own. The second respondent, Tekimwa Tekaetitaeka, was involved in the proceeding below, as the boundary determination was initially between her and the first respondent.
   
2. The magistrate court in BD 04/20 accepted the plaintiff’s case, now the first respondent, by finding that they reside on the correct plot, Terereua 278m, the last plot in Terereua. The court also ruled that the defendant and family, now the third respondent, reside on others’ land since their plot is located further on the seventh plot away from the plaintiff’s land, Mone 279b. The defendant/third respondent had filed an appeal against this decision, pending its hearing.
   
3. The applicant claims to own the plot the third respondent now occupies, which adjoins the first respondent’s land, Terereua 278m. In this application, he applied for the decision of BD 04/20 to be quashed for the breach of natural justice when the magistrate court had failed to invite him to the proceedings of BD 04/20.
   
4. This application was filed out of time. The first respondent did not oppose the application for an extension of time. Therefore, an extension of time is granted.
   

Application for Review

5. As mentioned above, the main ground in support of this review is the breach of natural justice. In support of this ground, the case of Terenga v Tooma [2011] KIHC 33; Civil Case 179 of 2010 was referred to. In that case, the High Court quoted from an English case of Jones v National Coal Board [1957] 2 AB 55 at 67, which states as follows;

“There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge...No case is lost until the judge has found it so, and he cannot find it without a fair trial, nor can we affirm it.”

6. Paragraphs 8 to 21 of the applicant’s affidavit filed in support of this application set out the applicant’s case of the breach of natural justice in the proceedings of BD 04/20. In summary, the applicant claimed that the third respondent occupied their land, Terereua 278n, which adjoins the first respondent’s land, Terereua 278m. He stated that this plot is the last plot on Terereua, and the magistrate court was wrong when they mentioned in their judgment that the last plot is Terereua 278m, which the first respondent owns. The applicant claims he owns Terereua 278n with others, as shown on the land register of Abemama for the plots owned by Toantabu and others. He said they have registered their names after Toantabu. He knew that his plot had been occupied by the family of Tabukia from 1969. He also explained that the land of Nauoko, the first respondent’s grandfather, does not adjoin the plot Mone. The applicant's plot number is 278n. Nauoko did not live on Terereua, and Nei Tekimwa did not know where Nauoko lived as she did not grow up in Kenna; only her father and second cousin lived there. He also claimed that the map relied upon by the magistrate court had been tampered with, as Nauoko’s name should not have been written to own the last plot in Terereua, which should be Terereua 278n that belonged to them (applicant). A different map that the applicant got from the Lands and Survey Office in Bairiki is very clear in the location of Terereua 278m on the ocean side, and Terereua o and u. That map shows that Terereua 278n is located south of Terereua 278u and 278m. The applicant submits that this is the evidence he could have raised to the court had he been allowed to attend the hearing.
   
7. I agree that BD 04/20 was heard in the applicant's absence. The first respondent did not dispute this fact as the case was only between them and the third respondent, who occupy adjoining lands. At the end of the case, the magistrate court accepted that the first respondent occupies the correct plot of land, Terereua 278m. The magistrate also ruled that the third respondent occupied the land that did not belong to them as their land is Mone 279.
   
8. The magistrate court also mentioned in their judgment that the first respondent’s land, Terereua 278m, is the last plot in Terereua. The applicant denies this. To the applicant, the last plot is Terereua 278n, which belonged to his family. His argument is stated in paragraph 6 above.
   
9. After considering the above arguments, this Court is inclined to accept the first respondents’ argument. There is no breach of natural justice in the proceedings of BD 4/20. The magistrate court and the first respondent could not have known that the applicant was an interested party. This is because the applicant did not reside on the adjoining land. It was the third respondent. Before the magistrate court in BD 4/20, the subject matter was about determining the boundaries of the first respondent’s land with the land adjoining it, which the third respondent occupies. Although the magistrate court had ruled that the third respondent did not own the plot where they lived, the magistrate court still could not have known that the rightful owner was the applicant and that they must invite him to the hearing.
   
10. Counsel for the first respondent argues that this application interferes with the first respondent’s case. The first respondent eagerly awaits the hearing of the appeal lodged by the third respondent against the decision of BD 4/20, not this review case. Counsel also states that the applicant should file a separate case before the magistrate court to establish his ownership of the plot that the third respondent is currently occupying; only then can they be allowed to interfere.
    
11. I agree with the first respondent’s argument. I have considered the applicant's position as laid out in the previous paragraphs and believe that it is premature for the applicant to interfere in the decision of BD 4/20. There are issues that the applicant raised before this High Court that only the magistrate court can determine, such as whether or not Terereua 278m owned by the first respondent is the last plot in Terereua, whether or not Terereua 278n is the last plot and is owned by the applicant, whether or not Terereua 278n is the adjoining land to the first respondent’s land, whether or not the map had been tampered with, and so forth. The applicant differs on these issues with the magistrate court in BD 4/20. Their legal standing over the adjoining land the third respondent occupies is yet to be established and confirmed. That is why the magistrate court in BD 4/20 could not have known their interest in BD 4/20.
    
12. The magistrate court must determine all the issues I mentioned in the preceding paragraph. Even if this Court does not grant the applicant’s application for review against BD 4/20, they can still sue the first respondent to determine their boundaries after winning their case against the third respondent over their claim on the adjoining land.
    

Order

13. Based on the above reasons, the application for review is not allowed.
    
14. Cost to the first respondent, to be agreed or taxed.
    

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice