Bonbwati v Kiritimati Housing Corporation [2024] KIHC 3; Civil Appeal 8 of 2023 (5 January 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL APPEAL 8 OF 2023

BETWEEN:
KATITEREREI BONBWATI
Appellant

AND:
KIRITIMATI HOUSING CORPORATION
Respondent

Date of Hearing: 28 NOVEMBER 2023
Date of Judgment: 5 JANUARY 2024

Appearances: Ms. Taoing Taoaba for the Appellant
Ms. Kanrooti Aukitino for the Respondent

JUDGMENT

The Appeal

1. This is an appeal against the magistrate court decision in case number XCiv 9 of 2023. In this case, the appellant was allowed to be evicted from the house belonging to the respondent on the ground that she had not lived in her house for more than one month.
   

Grounds

2. The appellant filed three grounds of appeal as follows;
   • - The court erred in law in allowing the claim for eviction by the respondent without any evidence produced to the court or to counsel for the appellant to prove that section 9.5 of the Housing Allocation Policy was observed,
     
   • - The court failed to take into account the reasons given by the appellant in requesting to vacate her house temporarily to ensure that her children live in a safe environment, are free from discrimination, violence, abuse, neglect, and exploitation, and have access to the education in a friendly environment. This is expected of the appellant pursuant to the ‘Children, Young People and Family Welfare Act’ (6 of 2013).
     
   • - The court failed to take into consideration the fact that the appellant and her family would have no place to stay in Kiritimati if evicted since she is an employee of the Kiribati Airport Authority who was transferred to Kiritimati to make it possible for the Authority to be complete in its responsibility.
     

Submissions and Analysis

3. The appellant was transferred from South Tarawa to work on Kiritimati Island and was allocated a house by the defendant. The defendant found that she did not live in her house for more than a month, therefore she was issued with an eviction letter.
   
4. On appeal, the appellant claimed the eviction was in breach of the Housing Allocation Policy section 9.5, which reads as follows;

“Assigning, Transfer, Subletting and Untenated

Not assign, transfer sublet or untenanted demised premises to other persons or relatives while living at other places for a period of more than one month,

Upon production of strong documentation and evidence of not complying with the above, the Housing Division will recommend to the Permanent Secretary of MLPID an authorisation to terminate existing agreement and issue eviction notice.”

5. The appellant submitted that no recommendation from the defendant was sent to the Secretary for authorisation to evict her, her request to OIC Housing Division to live elsewhere awaiting her mother’s return to Kiritimati was granted, the defendant failed to inform her that they have withdrawn their approval, and no proof to show that the OIC MLPID received the authorisation from the Secretary to process the eviction. In the absence of the evidence, section 9.5 of the Policy was breached.
   
6. In response, the respondent stated the appellant received several reminder letters to return to her house, but she did not comply; therefore, she was asked to leave. There was a breach of the Policy; hence, the magistrate court decision was correct.
   
7. I have read the minutes and judgment of the court, and there was evidence that the appellant was sent two reminder letters to return to her house, but she ignored this. I also note from the minutes that witness one for the respondent, Bannaua Moiaua, said they had in their email the authorisation of the secretary to comply with the OIC MLPID's directions regarding the appellant's eviction. I must also state here that even if the secretary did not give his authorisation, the authorisation from the OIC MLPID is sufficient as she acted in the secretary’s absence. The absence of the defendant’s recommendation to the secretary should not be an issue as the secretary or OIC MLPID had issued authorisation for eviction and the Housing Division have no problem with this. Even with or without the recommendation, the policy gives the Secretary or OIC MLPID the final decision, so the decisions taken by the Secretary and OIC are still within their powers.
   
8. However, the critical issue to consider is whether or not the respondent’s OIC granted permission to the appellant to live elsewhere until her mother returned. The appellant stated in her evidence that when she received the second reminder letter to return to her allocated house, she wrote her request/reply to explain that she has no one to look after her children but her mother if she returns, hence her staying elsewhere. The OIC acknowledged her problem but informed her that she should deliver a copy of her letter to the OIC MLPID through the administration office. She said she was not told to await the reply from the OIC MLPID. Several days later, she received the first eviction letter. There was no letter from the OIC Housing to confirm the appellant’s contention that the OIC Housing accepted her request to stay outside awaiting her mother. That was the evidence, as seen by the magistrate court below.
   
9. I find that the magistrate court had properly considered the issue above. The magistrate court had seen and heard witnesses giving their evidence regarding this important issue; therefore, as an appellate court, I am reluctant to decide otherwise, but only if there was strong evidence to the contrary. After considering the evidence, I also believe that the fact that the appellant was told to submit her reply/request letter to the OIC MLPID means that the reply would come from that authority.
   
10. Ground two is a new issue and should be disregarded. Ground three is irrelevant to the policy and should also be disregarded.
    

Summary

11. In light of the above reasons, the appeal is dismissed with cost to the respondent to be taxed if not agreed.
    

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice