Orea v Tamoaieta [2024] KIHC 51; HCLA 30 of 2021 (5 November 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT LAND APPEAL 30 of 2021

BETWEEN: BEIATAAKE OREA MTMM

Appellants

AND: TAUNGARE TAMOAIETA MTMM
Respondents

Date of Hearing: 1 October 2024
Date of Judgment: 5 November 2024

Appearances: Mr Banuera Berina for the Appellants
Mrs Kiata Ariera for the Respondents

JUDGMENT

A brief background of the case;

1. The case was brought up when the Respondents brought proceedings to evict the Appellants from the land they are registered on, namely Teabanimate from 791a at Teaoraereke. The Appellants were the defendants in this case, Bailan 315/20, while the Respondents were the Plaintiff.
   
2. In CNB 1/2000, the Appellant's father, Orea Kaiuea, was allowed to settle on the Respondent’s grandfather’s land, Teabanimate 791a, by Mwatiera in this regard. In Bailan 315/20, the Respondents issued an eviction case against the Appellants from their land, Teabanimate 791a, since Orea had died, and the court approved it.
   

Ground of Appeal

3. The Lands court erred in law in interpreting the judgment of the court in case 1/2000 by referring to what was said by the parties in that case in that the judgment was clear and unambiguous where it was clearly stated that Orea was to live on the land pursuant to the permission granted by Matiera on behalf of his brothers and sisters. As such, what happened after the death of Orea was to be determined by reference to the law relating to native estates and not by reference to what was said by the parties in the case.
   

Arguments and Court’s Analysis

4. The Respondent argues that the permission for the settlement ended when Orea died. It was only a license to occupy the land that Orea was given, which did not pass on to his next of kin, the children. That was the parties' intention, as reflected in the minutes.
   
5. The Appellant, through Counsel, said that the court decision had confirmed the settlement; therefore, it was no longer a license to occupy but an encumbrance. The Respondents' conduct in encouraging the Appellants to build their house on the land also confirmed the court’s decision. The Respondent responded that the house was partially permanent, the basement only.
   
6. The Respondents referred to the minutes of the proceeding of CNB 1/2000 to support their stand that the right to ownership remains with the Respondents. The Respondents stated that the Appellants had not tried to register their names over the land, although they had lived on it for 25 years. The minutes of CNB 1/2000 show Matiera's response when asked by the Court whether they agreed to have Orea’s name registered on the land. He said ‘no’ but only to allow him to live on the land for as long as he wanted.
   
7. The Appellant said the judgment did not mention that the land should have been reverted to the landowners when Orea died. They argued there was no need to interpret the judgment through its minutes since it was unambiguous. The Appellant raised that it was too late now for the Respondent to try to change the intention of the judgment since several years had lapsed. The ‘slip rule’ could be used to correct any judgment, but the party must apply promptly to have it corrected. Counsel raised this case Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (unreferenced) and Gould v Vaggelas (also not referenced) in support of this argument.
   
8. The Respondent, through Counsel, also used this slip test rule to argue that the Appellants should have asked for the judgment to be corrected to have their names registered on the land. It is too late now.
   
9. The case of Teweia v Aviu [2008] KICA 3 supported the argument that the Appellant was only given a license to occupy. Tebeia’s grandmother allowed Aviu to settle on their plot of land near the school so that Aviu’s children could easily access their school. When the grandmother died, and all the children had grown up, Tebeia applied for an eviction order against them. The court approved this, which explained that the license to occupy had expired when the landowners issued an eviction notice.
   
10. We have analysed the parties’ arguments and must agree with the Respondent. The judgment mentioned that Orea could occupy the land indefinitely for as long as he wanted. But the minutes clearly stated that the intention was not for him to be registered on the land. This means that he was given only a license to occupy, and the court was merely confirming this agreement. The Appellant did not refer to any law in the Native Lands Ordinance to support that they could live on the land indefinitely using the permission given to their father nor any support that the decision of CNB 1/2000 has the legal effect of turning a license to occupy to a permanent permit to occupy the land from generation to generation.
    

ORDER

11. In light of the above reasons, the appeal is dismissed with cost to the Respondent, to be agreed or taxed.
    

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THE HON. TETIRO SEMILOTA MAATE MOANIBA

CHIEF JUSTICE

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TITAN TOAKAI RETETA RIMON

LAND APPEAL MAGISTRATE LAND APPEAL MAGISTRATE