Kaumai v Richard [2024] KIHC 7; Land Review 6 of 2021 (12 January 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT LAND REVIEW 6 of 2021

BETWEEN:
RARAINTAAKE KAUMAI, TIEBANE KAUMAI, BANTEANG KAUMAI
Appellants

AND:
KAITU RICHARD WITH BROTHERS AND SISTERS
Respondents

Date of Hearing: 6 NOVEMBER 2023
Date of Judgment: 12 JANUARY 2024

Appearances: Ms. Taaira Timeon for Appellants
Ms. Elsie Karakaua For Respondents

JUDGMENT

Background

1. The Single Magistrate’s decision dated 12 Jan 1999 in CN31/99 confirmed and ordered the distribution of land Terereua 819-a/1 under Tamau Teati to his three issues, Temarin Rairateatu, Tokobea Kaumai and issues of Nanai, and Neiti Morrison with issues of Temaraia.
   
2. In case number Betlan 120/21, the judgment delivered on 8^th February 2021, the court confirmed the deregistration of Tokobea Kaumai and registered his children, Kaitu Richard Tokobea and siblings, including the issues of Nei Nanai for issues of Tamau Teati, on the land Terereua 819-a/1 at Betio west.
   

The Review Application

3. The petitioners called for a review of the decision of the Magistrate’s Court Betlan 120/21 when they confirmed and allowed the transfer of land title to the Respondents over Terereua 819-a/1 succeeding the deceased father, Tokobea Kaumai, who also owned the land.
   
4. The grounds for review are listed below:
   
   • The petitioners were not invited during the proceedings of Betlan 120/21 or during the court for registering the respondents.
     
   • They were also interested parties over the land Terereua 819-a/1
     
   • They were deprived of their right to the principle of natural justice and fairness and the right to be heard, audi alteram partem.
     
   • The transfer of this land was contrary to the rule of survivorship.
     
   • The petitioners argued that the respondent’s father was left with nothing because the land had never been subdivided or distributed between him and the petitioners.
     

Petitioner’s submission

5. Since it had not been distributed, the petitioner’s submission confirmed their co-ownership of the land, Terereua 819 -a/1. They argued that pursuant to section 11 of the Magistrate Court Ordinance, the petitioners are the closest ‘next-of-kin’ of Tokobea Kaumai as siblings; therefore, they should be invited to the proceeding,
   

Respondent’s Submission

6. Counsel’s submission stated that the case was not a distribution of the land Terereua 819 – a/1. It was only a deregistration of Tokobea Kaumai (deceased) to his issues, the respondents.
   
7. The petitioners still own the same land pursuant to the decision; therefore, there are no opposing sides. The respondent referred this Court to the case of Tebanna v Tebanna [2002] KIHC 22, in which the Court of Appeal states the following;
   

“It is a basic principle of law that, before making orders that will affect others, a court must ensure any potential opposing party has an appropriate opportunity to be heard. This is known as the audi alteram pattern principle. Orders made without hearing from parties who might be affected adversely by them are made only in exceptional circumstances...”

8. In line with the above case, the petitioners cannot be said to be the opposing parties; therefore, the case should be struck out.

Court’s stance

9. The Court confirmed that:
   
   • The magistrate case number Betlan 120/21 concerned the title registration after their deceased father, Tokobea Kaumai, and not a distribution of the land Terereua 819a/1;
   • The petitioners, being the issues of Nanai, are landowners together with Tokobea Kaumai following the decision of CN 31/99 mentioned above.
   • The judgment of Betlan 120/21 states that the land Terereua 819a/1 be registered under the respondent, Kaitu Richard Tokobea, with his siblings as children of Tokobea Kaumai and together with the issues of Nanai for the issues of Tamau Teati.
   • The petitioners, being the issues of Nanai, their interests on the land were not excluded, as they are also the registered owners of Terereua 819 a/1;
   • The petitioners cannot be regarded as opposing parties.
   • The review of the case HCLR 6/21 is not necessary.
     

Order

10. The application for review is dismissed, and
    
11. The decision of Betlan 120/21 is reaffirmed.
    

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice

Moriati Motiti Koae	Amina Uriam
Land Appeal Magistrate	Land Appeal Magistrate