Ataieta v McDermott [2024] KIHC 22; Land Appeal 36 of 2016 (3 September 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT LAND APPEAL 36 OF 2016

BETWEEN:
TEATA ATAIETA
Appellant

AND:
NICK MCDERMOTT WITH BROTHERS & SISTERS
Respondents

Date of Hearing: 2^nd May, 2024
Date of judgment: 03^rd September, 2024

Appearances: Ms Taoing Taoaba for the Appellant
Ms Botika Maitinnara for the Respondents

JUDGMENT

A. The Case: Brief Facts

1. Background
   

1.1. The piece of land in dispute is called Tekawa, plot number 664E, in Bikenibeu. The ocean side portion of this land is leased by government and is currently occupied by the Kiribati Teachers College (KTC). The lagoon portion has been sold out and is currently occupied by the Santa Maria College. So, the portion from the ocean side of the main tar sealed road up to KTC (or the government leased portion of the land) is really the portion of the said Tekawa 664E which is being disputed by the parties.

1.2. Originally, Tekawa 664E was registered under Teakaua Kaitangare, Kaake Kaitangare, Nei Kiakia Kaitangare and Tuako Kaitangare who are brothers and sisters. Following their death, their issues had their names registered over this land. The appellant is registered after his late great grandmother, Nei Kiakia Kaitangare, whilst the respondents are registered after their late great grandfather, Kaake Kaitangare.

1.3. In CN TI 18 of 2007, this disputed portion of Tekawa 664E was distributed equally amongst the four original owners of the land. According to the judgement, the apportioning of the land was done in such a manner that the first portion, which starts from the main tar sealed road towards the ocean side, is allocated to Kaake Kaitangare (the respondents’ great grandfather), followed by Nei Tuako Kaitangare, then Nei Kiakia Kaitangare (the appellant’s great grandmother) and lastly Teakaua Kaitangare whose share stops where government’s lease starts.

1.4. This undisputed land distribution judgement was followed straight after by another proceedings, taken up by the respondents, to establish and erect demarcation boundaries between the agreed four shares. The appellant himself was the one assisting the Court on-site, together with the issues of Tuako and Teakaua, in erecting stone boundaries during the proceedings. Of importance to note is the fact that not only was the appellant then residing within Kaake Kaitangare’s allocated portion of the land and present during this land distribution and boundary determination proceedings but has also failed to oppose or appeal against the judgement of CN TI 18/2007 right on the spot, including the boundary determination for the undisputed four shares.

1.5. Despite these undisputed outcomes of the land distribution and boundary determination proceedings, the appellant and his family are reluctant to vacate Kaake Kaitangare’s allocated portion, claiming he has bought the plot they are occupying from Eritabeta Kaake who is the grandmother of the respondent. He claims that the purchase of the plot was done in CN 55 of 1988. This case sought for the registration of the appellant over Eritabeta Kaake’s land but the proceedings was never completed, pending receipt of the consent of Eritabeta’s children which has never happened whilst Eritabeta was still alive up until this present day.

1.6. Because of the appellant’s adamant refusal to vacate the rightful share of the respondents’ great grandfather and the clear fact that the appellant has not been registered over the said land, the respondents, through CN 285 of 2011, sought for the eviction of the appellant and family from their rightful share of land 664E or Kaake Kaitangare’s share. Hearing for this eviction case was just completed in 2016 and was won by the respondents. Accordingly, the Court ruled that the appellant and family should vacate Kaake Kaitangare’s share in three months’ time, effective from 30^th June, 2016. The appellant is not happy with this ruling of the lower court, hence this appeal case.

2. Submission by Appellants’ Lawyer
   

2.1. The Appeal

2.1.1. There are two grounds upon which this appeal is based:

1. the Single Magistrate erred in law in considering CN TI 18 of 2007 as the basis of the judgement because the case was only concerned with the distribution of Tekawa 664E land by the family; and
2. the Single Magistrate erred in law in failing to consider the appellant’s claim that he has bought the land in dispute from Eritabeta Kaake in CN 55 of 1988, hence the lower court has failed to take into account the implied agreement over the purchase of the said land when Eritabeta agreed to sell it to the appellant for $1,000.00, such agreement which the latter has honoured.
   

2.2. Evidences in support of Appeal

2.2.1. The appellant’s lawyer didn’t have any written submission but simply argued that the eviction order is not proper. Firstly, she pointed out that there is a need to, first of all, sort out the issues involved in getting the needed affidavit of the land administrator which she argued warrants the further adjournment of the case before the eviction order can take effect. Secondly, she also argued that the case should have been taken up when Eritabeta Kaake was still alive, being party to the said land title purchase agreement and the only one who is fully aware of the background and all other relevant information related to his land title purchase case in CN 55 of 1988.

2.2.2. The appellants’ lawyer further argued that, though registration of the appellant’s name over the disputed portion of Tekawa 664E was never completed (as the required consent of Eritabeta’s children has never been submitted to the Court up to now), the land title purchase agreement between Eritabeta and the appellant should rightfully entitle the latter’s registration over this disputed portion of the land, or the portion belonging to Eritabeta’s father, as the respondents are only her grandchildren and Eritabeta has received the agreed amount of $1,000.00 for the land from the appellant .

2.2.3. For these reasons, the appellant’s lawyer stressed her other point of argument that CN TI 18 of 2007 should have not been considered and used as the basis of the judgement in the case on appeal, being irrelevant as the case is only a land distribution matter

3. Submission of Respondents’ Lawyer

3.1. Evidences against the Appeal

3.1.1. The respondents’ lawyer had a written submission in support of her objection to the grounds of appeal but, before she proceeded, she made it clear to the panel that since this case has continued to drag on since 2011 and the appellant has passed away, there is, therefore, no reason to allow the further adjournment of the case, as the long delay in finalizing the case has been causing unnecessary inconveniences to the respondents. For these reasons, the lawyer made it clear to the panel that the respondents are not in a position to support the further adjournment of the case.

3.1.2. After giving the full background information on the case, as briefly summarized earlier, the respondents’ lawyer then vividly explained the very basis of the respondents’ objection to the grounds of appeal.

3.1.3. In response to the first grounds of appeal, the respondents’ lawyer argued that the lower court or Single Magistrate had not erred in law in having taken into account CN TI 18 of 2007 in the judgement on appeal. In fact, this is not the only case relied on but, being concerned with the distribution and boundary demarcation of the unsold and unleased portion of Tekawa 664E amongst the four original owners of the land, it is considered relevant, being helpful in establishing who really owns the portion in dispute, and therefore must also be considered in the judgement on appeal. Besides, the lawyer emphasized the point that the appellant was present, together with the issues of the other original owners of the land in dispute, in all of the proceedings, including the one in which the judgement on appeal was delivered – i.e. in 2016, but the appellant had never shown any sign of opposition to what the lower court was doing nor appealed against the judgement right away; rather he had chosen to appeal this judgement only after the respondents’ eviction case (CN 285/11) was taken up in 2011 or about 4 years after the event. In other words, as the lawyer also stressed, this appeal of the appellant has been overtaken by time and, therefore, is rather too late to consider at this stage.

3.1.4. For the second grounds of appeal, the respondents’ lawyer simply argued that the appellant has not been registered after Eritabeta upon the land in dispute, as claimed; rather Nick’s mother, Ellen Nicholas, and her brother, Tabuki Iotebwa, are registered after her. CN 55 of 1988 relied upon by the appellant as proof that he has purchased the plot in dispute from Eritabeta for $1,000.00 was rebutted as the court minutes for this case, produced as evidence by the respondents’ lawyer, clearly shows that the proceedings for this case was never completed, hence the case has never been concluded nor any judgement made on the case up until now, pending submission and receipt of the required consent of Eritabeta’s children by the the lower court in support of the land purchase and implied agreement for the transfer of the land title from Eritabeta to the appellant. So, the lawyer reaffirmed the position of the respondents that the lower court or Single Magistrate has not erred in law in any way, as alleged, as CN 55/88, the only case relied upon by the appellant, has also been closely considered and used in arriving at the judgement on appeal.

3.1.5. For these reasons, the lawyer prayed that a) the appeal be dismissed with costs and b) an eviction order, to evict the appellant and family from the rightful share of the respondents, be issued with immediate effect.

4. The Panel’s Stance on the Appeal

4.1. For the requested further adjournment of the case, the panel considered the further adjournment unnecessary and thus ruled that the full hearing must proceed forthwith, given the continuous failure of the appellant and legal counsel to get their administrator and affidavit sorted out, as well as the unnecessary inconveniences caused to the rightful owners of the plot of land in dispute, due to the long delay (which is about 11 years now) in finalizing this eviction case.

4.2. In addition, the panel noted that both parties did not indicate in their respective submissions, the relevant laws that have been breached nor refer the panel to the relevant precedents to support their respective arguments for and against the appeal. However, based on the evidences submitted by the legal counsels of both parties, as has been summarized and presented herein, the panel is led to believe and thus conclude that:

1. the lower court or Single Magistrate had not erred in law in having used CN TI 18 of 2007 as the basis of the judgement on appeal, given that the then undisputed judgement on the case is very helpful in determining whether or not the respondents have the right to demand eviction of the appellant and family from the plot of land in dispute or what the respondents claimed to be Kaake Kaitangare’s share of Tekawa 664E, now registered under Ellen Nickolas and brother Tabuki Iotebwa after the death of their mother, Eritabeta Kaake;
   
2. neither the lower court or Single Magistrate had failed to consider CN 55/88, the only case relied upon by the appellant, but, as clearly pointed out by the respondents’ lawyer, proceedings for this land purchase case has never been completed up until now (pending submission and receipt of the required consent of Eritabeta’s children by the lower court) hence registration of the land in dispute under the appellant cannot be effected, being improper if done in the absence of the required consent.
   

B. ORDER

5.1. For the above mentioned reasons:

5.1.1. the appeal is not allowed and should, therefore, be dismissed, accordingly;

5.1.2. the decision in CN 285 of 2011 is reaffirmed;

5.1.3. an eviction order for the eviction of the appellant and family from the disputed land in question be issued for the appellant and family to leave the land immediately (within one week from today) or the Kiribati Police Service shall execute this order with immediate effect thereafter;

5.1.4. costs of this appeal to be borne by the appellant to be taxed by the Registrar if not agreed.

ABUERA URUAABA
Commissioner of the High Court

AMINA URIAM RITETI MANINRAKA
Land Appeal Magistrate Land Appeal Magistrate