Teiwaki v Iotebwa [2024] KIHC 55; HCLA 2023-02346 (22 November 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT LAND APPEAL 2023-02346

BETWEEN: ITUA IBUKIN KN TEIWAKI

Appellant

AND: TOOMA IOTEBWA

Respondent

Date of hearing: 29 October 2024

Date of Judgment: 22 November 2024

Appearances: Mrs. Kiata Ariera for the Appellant

Mr. Mantaia Kaongotao for the Respondent

J U D G M E N T

Introduction

1. This is an appeal against the magistrate court decision in Betlan 08/23, delivered on 29 June 2022. The application is out of time, but the Respondent agreed to the extension. In Betlan 08/23, the magistrate court allowed the Appellant to be evicted from the land in dispute, hence their appeal.

Appeal Ground

2. Initially, the appellant filed three grounds of appeal to support their appeal. At the hearing, Counsel for the Appellant withdrew grounds one and two. Ground three is stated below;

The court erred in law when making a decision without a proper hearing or facts from the respondent.

Submission and Analysis

3. In the court below, the Applicant, now the Respondent, applied for an eviction order against the Respondent, now the Appellant. The case started when the Appellant went on the land owned by the Respondent, claiming that the land was owned by their forefathers but was taken from them by fraud. The magistrate asked the parties to provide their certificate of ownership concerning the land in dispute. The Appellant could not provide one. The court only received the Respondent’s evidence of ownership. The court stated that even if the Appellants claim to be rightful owners of the land taken from their forefathers by fraud, this does not entitle them to move onto the land automatically. They should file their case first from where they were living to assert their rights to the land.
   
4. The Appellant argued that the magistrate court did not allow them to present their case through their lawyer, who was away in Fiji at that time.
   
5. Counsel for the Respondent submitted that the Appellants did not own the land. They just moved onto the land and chopped down trees. They were trespassers, so the Respondent filed an eviction case against them. Their lawyer did not attend the first hearing. The magistrate court informed the parties to provide their certificate of ownership to prove their rights over the land. At the second hearing, the Appellant did not provide their certificate of ownership concerning the disputed land. The Respondent did. Therefore, the magistrate court ordered an eviction against the Appellant to preserve the status quo.
   
6. We have considered the minutes and judgment of Betlan 08/23. We agree with the magistrate court that the eviction order must be issued against the Appellant as they could not provide their certificate of ownership. The minutes show that on 29 March 2023, their lawyer came to a court hearing and informed the court that his client could not provide the certificate of ownership as they did not have it until they had proven their fraud claim against the Respondent over the land. Their lawyer asked the magistrate court to dispense with the requirement of a certificate of ownership and hear the party's claim of fraud concerning the land. The request was not granted, and the eviction order was issued. They were told to file a separate case to determine the claim over the land from where they previously lived.
   
7. The Appellant’s argument before this court was mainly on their claim of fraud against the Respondent. There was no mention that they have a certificate of ownership. Their concern was that they should be given a chance to argue their claim that their land had been fraudulently taken away from their forefather. The magistrate court made the right decision in stating that their claim that the land was taken from their forefathers by fraud must be determined first before they can move onto the land. If they are successful, they can only move onto the land. This should be the only way to justify their presence on the land. The magistrate court made no error.
   

ORDER

8. For the reasons mentioned above, the appeal is dismissed.
   
9. Cost to the Respondent to be agreed or taxed.
   

THE HON. TETIRO SEMILOTA MAATE MOANIBA

CHIEF JUSTICE

RITETI MANINRAKE TITAN TOAKAI

LAND APPEAL MAGISTRATE LAND APPEAL MAGISTRATE