Aata v Robwati [2024] KIHC 50; Miscellaneous Application 2024-03669 (29 October 2024)

IN THE HIGH COURT OF KIRIBATI

MISCELLANEOUS APPLICATION 2024-03669 from
HIGH COURT LAND APPEAL 33 of 2022

BETWEEN: Tabuia Aata & Raurenti Teioo for family

Appellants

AND: Anre Robwati, Manati Temaati, Ariti Takentarawa, Tetabo Ieremia & Rineieta Tebeia

Respondents

Date of Hearing: 01 October 2024
Date of Judgment: 29 October 2024

Appearances: Ms Eweata Maata for the Appellants
Ms Botika Maitinnara for the Respondents

R U L I N G

The Case: Brief Facts

1. The Appellants request the Court’s consideration for the reinstatement of their appeal, Land Appeal 33 of 2022, which was struck out on 28 August 2023 for want of prosecution.
   
2. The Appellants also applied for a stay of execution of the decision of the Magistrate Court in Betlan 28/22, Misc App 209/23 and Misc App: 2024-03073 MC/LA/ST regarding the eviction of the Appellants from the land Tebikeinano 711 “n” in Eita. On 21 August 2024, this Court issued a ‘Stay Order against these decisions. The second hearing is to consider the application for a reinstatement.
   
3. Betlan 28/22 is the eviction case in the Lands Court against the Applicants/Appellants, which was concluded on 21 November 2022.
   
4. The Applicants filed their appeal on 16 December 2022 on one ground only: that the boundary between the land plot occupied by the Appellants and the Respondents has not been determined.
   
5. The land in dispute is Tebikeinano 711 “n,” which the Appellants occupied.
6. The initial appeal was due to be heard and argued on 28 August 2023, but the Appellants, through their Counsel, applied for the appeal to be struck out for want of prosecution. The application was granted, and the applicants were given six weeks’ liberty to re-apply if they were still interested to prosecute their appeal.
   
7. The Applicants did not reapply within the time provided, so the Respondents applied in the Lands Court to enforce the eviction order in Betlan 28/22. This was done in miscellaneous application 209/99; the decision was delivered on 17 April 2024.
   
8. During the hearing of Misc App 209/22, the Applicants then filed their motion with the High Court for the reinstatement of their Land Appeal 33 of 2022. They also asked the Court to consider staying the enforcement proceedings because they had just filed their reinstatement application with the High Court.
   
9. Their application was not granted, and the Court made a ruling that the Applicants must vacate the land of the respondents within three weeks of the date of the judgment. The Counsel representing the Appellants had conceded to the eviction.
   
10. The Applicants then took out proceedings in miscellaneous application 2024-03073 to stay Betlan's decision of 28/22. The application was dismissed on 8 July 2024.
    
11. Counsel Ariera had initially represented the Appellants, but after she withdrew from their appeal case and due to financial difficulties to engage another legal counsel, the Appellants then sought the assistance of a person named Matiina, known as a land commissioner, a bush lawyer, who attended the hearings on their behalf.
    
12. The Appellants claimed that Matiina failed to update them on the progress of their appeal case or inform them that it had been withdrawn for want of prosecution.
13. The Appellants claimed they only became aware of Ms Maata's striking out of their appeal case in mid-October 2023 during the enforcement of the eviction order against them. Matiina had recommended Ms Maata to the Appellants to take on their case.
    
14. The Appellants then applied for the re-instatement of their appeal on 20 October 2023, which was 9 days late. The affidavits of Aata Temai, dated 20 May 2024, and his sister Atobwa Temai, dated 25 September 2024, were filed to support their reinstatement application.
    
15. The Counsel further pointed out there have been natural accretions to the land in dispute where the Appellants are occupying – Tebikeinano 711 ”n” in Eita. She added that though the court below had established that the land in dispute is registered under the Respondents, she believed that there is merit in examining the relevance of the provision of Natural Accretions in Section 16 (i) and 16 (ii) of the Native Lands Code in support of the Appellant's application for the reinstatement of their appeal:
    

(i) “If a land accretes naturally towards the sea from an owner's land then the accretion belongs to the landowner upon whose land it accretes; if it accretes upon a seawall then the accretion belongs to the owner of the wall: and if it accretes from a land and from a seawall then the accretion is shared between them”, and 16. (ii) “Any accretion which does not adjoin an existing land shall belong to the Government, and the court may give it to any indigent person. If the person awarded the land plants it properly then he will be confirmed in ownership but if' he neglects the land the court may take it from him and give to another person”.

16. In closing, the Counsel requests that the Court kindly consider the argument put forward in support of the Appellant’s application for the reinstatement of their land appeal of 33 of 2022.
    
17. In response, the Respondent’s Counsel told the Court that the Respondents opposed the Appellants’ application for the reinstatement of their land appeal on the grounds that have been provided to the Court in the affidavit of one of the Respondents, Mr. Anre Robwati, on behalf of the other Respondents.
    
18. Counsel highlighted that the Appellants are occupying the land unlawfully as the land in dispute, Tebikeinano 711 “m,” which the Appellants are occupying, is registered under the Respondents. The Appellants have not disputed this fact in the lower court.
    
19. She referred to case Betlan28/22, in which the Respondents took out proceedings to evict the Applicants from the land in dispute. She claimed that the Appellants had conceded to the application and requested one month within the Court judgment to vacate the land on 21 November 2022.
    
20. Although the Applicants had conceded to the eviction proceedings, they filed their appeal with only one ground of appeal to the High Court on 16 December 2022, just five days before the one-month eviction order was to be effected. The Appellants did not apply for a stay of the 21 November 2022 order.
    
21. She informed the Court that the Appellants are now applying for the reinstatement of their appeal, which was struck out on 28 August 2023, upon the instructions of the Appellants’ Counsel.
    
22. The Respondents’ Counsel argued that this case had been allowed to drag on for so long, and they believed that the Appellants' application for reinstatement of their appeal was another attempt by the Appellants to prolong the execution of the Court Order dated 13 June 2024.
    
23. Furthermore, the Respondents’ Counsel did not accept the reasons given by the Appellants about not being informed by their Counsel about the progress of their appeal case, including about their appeal having been struck off without their knowledge and consent, which had resulted in their late application for the reinstatement of their appeal. In Ata’s affidavit, he mentioned that they faced difficulties when transferring their case to a new lawyer. This indicated their knowledge of their case being struck out.
    
24. Based on the foregoing information, the Respondents’ Counsel told the Court that the Respondents strongly oppose the Appellants’ application for the reinstatement of their appeal for the following reasons:
    
    1. The Applicants failed to file their application within the specified time.
    2. There is no application for leave filed by the Appellants to extend the time within which to apply for a reinstatement application knowing that their time had elapsed.
    3. The Appellants filed their motion for re-instatement of their appeal after being served with an enforcement summons.
    4. The Appellants failed to ensure the application to the Court for the re-instatement of their appeal was heard as soon as possible. It has been almost one year since their application for reinstatement was filed.

Ruling

25. Based on the submissions put forward by both Counsels, especially on the argument put forward by the Counsel for the Appellants regarding the application of the provision of Natural Accretions in Section 16 (i) and (ii) of the Native Lands Code and its possible relevance in support of the Appellants’ application for the reinstatement of their appeal, and the need to do a boundary determination this Court agrees that the case may have merit, therefore, the reinstatement of the Appeal is allowed.
    
26. The requirement to apply for leave first because the application is out of time has been answered when the Applicant’s Counsel did it verbally when she made submissions. In the interest of justice, we accept this application.
    
27. The Respondent will not be prejudiced as they have not occupied or used the land. The Applicants, however, would be since they have occupied the land for nearly 30 years.
    

Order accordingly.

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The Hon. Chief Justice
Tetiro Semilota Maate Moaniba

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Reteta Rimon Titan Toakai

Land Appeal Magistrate Land Appeal Magistrate