Attorney General v Antonia [2024] KIHC 35; Civil Case 13 of 2023 (29 October 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 13 of 2023

BETWEEN: Attorney General in respect of the Director of Lands
Applicant

AND: Riria Antonia and

Persons Unknown
Respondents

Date of Hearing: 3 October 2024
Date of Judgment: 29 October 2024

Appearances: Mr. Nenebati Tainimaki for the Applicant
Ms. Eweata Maata for the Respondent

JUDGMENT

Introduction

1. This is an application to recover possession of parts of the land Tekainga 803t pursuant to section 3 of the Squatters (Recovery of Lands) Act and an order for the Respondents to vacate the said land.
   
2. The land in dispute has been government-leased for 99 years. The late husband of the Respondent, Riria, applied for the sublease, but his application was not granted due to the Government's plan to develop the land. The wife continued to stay on the land regardless of eviction notices from the Applicant.
   

The Law

3. Section 3(1) of the Squatters (Recovery of Lands) Act states the following;
   

Any person who claims possession of the land which he or she alleges is occupied by a person entered into or remains in occupation without his or her license or consent, or that of any predecessor in title, may make an application to the court to recover possession of the land.

Parties’ Position and Court Analysis

4. The applicant is adamant that there was no signed lease agreement between the parties; therefore, the Respondent’s stay on the land is unlawful without the Minister’s consent.
5. The minister’s consent is relevant in this type of case as the minister has the authority to issue consent for sublease applications regarding Government land leases. This is stated in section 10(1) of the Native Lands Ordinance.
6. The respondent submits that they occupy the land not because of her late husband’s sublease application but because of someone else’s application. This person is Yin Fung, and she was called to give evidence in support of the Respondent’s case.
7. According to this witness, she applied for a sublease for the same piece of land. She is a businesswoman who wants to use the land for her business. She went to see the Minister of Lands regarding her sublease application. Then, the staff of the Lands Department told her that a survey would be conducted, but they would have to wait for the Office of the Attorney General to review the agreement first.
8. Later, a staff from the Lands Department came to do the survey. During the survey, she realised the size of her land was reduced when the land's end did not extend to the fence. The staff told her to determine the land's boundary to ascertain the correct size. She was also told that once the boundary case is completed, she would notify the Lands office so they can work with the court minutes and issue a building permit. The boundary determination is still ongoing.
9. The Applicant called one witness who testified that the land had not been subleased. This witness also spelled out the steps of sublease approval, including the issue of a building permit after the sublease has been approved, but he maintained his position that approval means having a signed sublease agreement. The witness, Yin Fung, said she assumed her sublease application had been approved because she was told the building permit would be issued after the survey.
10. The Respondents, through Counsel, refer to two case authorities in support of their position that they acted on their belief that their application had been approved when the survey was conducted.
11. The first case is Attorney General or Director of Lands v Beta Atanimoa and Burengarenga Bong High Court Civil Case 47 of 2006, which shows that the onus of proof is heavier than the balance of probabilities, one of strict proof. In that case, the Applicant agreed that the Respondents were probably given some parts of the land in dispute to live on, but there was no evidence to show which part of the land she was given; therefore, the Court found the Applicant had failed to prove strictly that the Respondent was not entitled to occupy the part of the land that she lived on.
12. The second case is AG iro Director of Lands v Maerere Itaaka & Others High Court Civil Case 56 of 2015. Having read that case, I believe the facts are different since there was substantial evidence in that case that the minister had issued verbal consent through the President, and the Government staff had also given the key to the Respondent to use one of the small offices built by the Applicant on the plot.
13. The Applicant correctly submits that no sublease agreement between the parties has yet been signed. The ongoing boundary determination may have contributed to this. However, there is no evidence that the minister would approve land use after the survey. Through the witness Yin Fung, the Respondent only provided evidence that the staff told her the survey would be conducted. She was not told directly by any staff of the ministry that her application would be approved after the survey.
14. The Applicant referred this Court to the case of AG iro Director of Land v Timote [2023] KIHC 12, Civil Case 61 of 2015 (22 June 2023). The High Court, in that case, approved the recovery of the land because a mere assurance from the minister did not count as consent or license to occupy the land. I find that the Applicant’s case is strong, and the Respondents have been occupying the land without the minister's consent.
    

ORDER

15. For the reasons mentioned above:
    
    • - the application is granted,
    • - the Applicant can recover possession of the parts of the land Tekainga 803t that the Respondents occupy, and
    • - the Respondents must surrender possession.
      

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice