Taketiau v Totoa [2024] KIHC 39; Civil Review 6 of 2021 (31 October 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL REVIEW 6 of 2021

BETWEEN: Francis Taketiau with brothers and sisters for Issues of Taketiau Beriki and Tanre Ratintera with brothers and sisters for Issues of Ratintera Beriki
Applicants

AND: Teeko Totoa
Maetiu Ioane Respondents

Date of Hearing: 10 October 2024
Date of Judgment: 31 October 2024

Appearances: Ms. Taaira Timeon for the Applicants
Mr. Banuera Berina for the Respondents

JUDGMENT

Introduction

1. On 13 October 2023, I granted leave for an extension of time. This time, the court will consider the submissions from both parties on the application for leave to apply for an order of certiorari to quash the decision of CNTI 7/06, delivered on 7 June 2006.
   

Grounds for review

2. There are two grounds filed in support of the application as listed below;
   1. The magistrate court erred in law in allowing the transfer of the land Tekauna 691-1 to the Respondents subject to the final distribution of this land in the presence of the Respondents alone without enquiring about the other interested landowners of this land or co-owners who had a similar interest in the land that had never been distributed or fragmented.
      
   2. The magistrate court erred in law by proceeding to hear the application for a land transfer without any reasonable evidence supporting the decision that the Respondents were Kabure Beriki's next-of-kin. The evidence given was from the lawyer adduced from the bar table.
      

Analysis

3. For ground one, the Applicants, through Counsel, made submissions that the land has not been subdivided among the three owners; therefore, the share of Kabunare Beriki, one of the brothers, has not been identified. The case, CNTI 7/06, was conducted without the presence of Taketiau Beriki, who was still alive then, and the issues of Ratintera Beriki, the other brother who died before this case.
   
4. The essence of the argument is that since the land has not been subdivided, Kabunare Beriki's share has not been identified. The three brothers still own the land. The other brother, Kabunare Beriki, transferred his interest to both Respondents. That was the decision of the magistrate court, nothing more. The court mentioned that the interests of both Respondents will be confirmed when the distribution has been made. This confirms the Applicants’ argument that the land has not been subdivided, so the share of Kabunare has not yet been identified. The magistrate court decided to attach the interests of both Respondents to Kabunare Beriki’s interest over his share of the land until distribution. The magistrate made it clear in her last sentence that the interest of both Respondents does not concern the whole land but only in relation to Kabunare Beriki’s interest.
   
5. Despite the Applicant's argument, I believe that generally, landowners can still transfer their interest before the land distribution. Our laws do not prohibit this. The transfer can be confirmed as long as that landowner has a share after the distribution. For this particular case, it may be complicated as this specific landowner died issueless so at the end of the day the interests of the Respondents will be determined against the interest of his next of kin before the court can confirm the Respondents’ interests.
   
6. The Applicants, through Francis Taketiau and Taabu Taketia, two of the issues of Taketiau Beriki, made affidavits in support of this case.
   
7. Both affidavits provide evidence that the proceeding has breached the principle of natural justice since the two brothers and their issues were not invited to the proceedings; therefore, they were not given a chance to state their position on the attachment of the Respondents’ interest to Kabunare Beriki’s interest over the land.
   
8. After the cross-examination of Applicant Francis at the hearing of their application for an extension of time, I found that their father, Taketiau Beriki, had known about this case, CNTI 7/06, during his lifetime. Therefore, I ruled that I could not accept that Taketiau was unaware of his brother’s case of transferring his interest to both Respondents. I explained this in my previous judgment regarding the application for leave to apply out of time.
   
9. At this second hearing, the Respondents, through Counsel, raised the issue that the interest of the other brother, Ratintera Beriki, or his issues, was not supported by any affidavits. The Applicants responded by saying that the affidavits of both Francis and Taabu also covered their cousin's interest. Paragraph 5 of Francis Taketiau’s affidavit mentioned that their father, Taketiau Beriki, and the co-applicant, the children of their uncle, Ratintera Beriki, were not invited to the proceeding of CNTI 7/06. Also, paragraph 7 of Francis’s affidavit repeated that both their father and Ratintera’s children were not invited to the proceeding of CNTI 7/06. Taabu Taketiau’s affidavit, in paragraph 10, also mentioned that Ratintera’s children were surprised to learn about this case. The Respondent did not question any of this contention when cross-examining the Applicant.
   
10. It was not disputed that Ratintera Beriki, the father of the other respondents, died long before the case CNTI 7/06 was heard and decided. This confirms that he could not have been aware of this case. Also, the minutes of case CNTI 7/06 show that the parties of the case were only Kabunare Beriki as the applicant versus Teeko Tetoa and Maetiu Ioane as respondents. This indeed confirms that the two landowners and their children were not invited. Although there was no affidavit from the issues of the other landowner (Ratintera Beriki), the minutes of CNTi 7/06 speak louder.
    
11. The main issue concerning the second ground is that Kabunare Beriki died issueless. The first Respondent was his wife, and the second was his stepdaughter. The Applicants argued that the issue of who the rightful next of kin of Kabunare Beriki must be determined first. The court in CNTI 7/06 did not determine this because Kabunare Beriki was alive when the case was decided. However, because the land in dispute is not freehold but family land, several provisions of the Native Lands Code direct how the distribution or gifts of an issueless owner must be made and approved. In all these provisions, the interest of the next of kin of an issueless owner must be considered so that they are not left in hardship. See sections 3, 4, 5, and 6 of the Native Lands Code. I will not discuss these provisions in detail in relation to this case; the magistrate court is the proper court to determine these matters. For this reason, I agree with the Applicants.
    

ORDER

12. For the reasons mentioned above:
    
    • - The case for review against CNTI 7/06 is granted.
      
    • - The decision of CNTI 7/06 is quashed, and the matter is sent back to the magistrate court for rehearing.
      
    • - Cost to the Applicant, to be agreed or taxed.
      

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice