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Temaua v Kumkee [2025] KIHC 115; Land Review 02271 of 2023 (27 May 2025)

IN THE HIGH COURT OF KIRIBATI
Land Appeal Jurisdiction
(South Tarawa)


HIGH COURT LAND REVIEW NO: 2023-02271


BETWEEN

TAATOA TEMAUA & KARAIA TEMAUA _____________ Applicants


AND

KING KUMKEE ________________________________ 1s Respondent
TIAE TEKABWEBWERE, TIRAWA TEMAUA mtmm,
UAUA KAINTIKUABA, RUATARA KAINTIKUABA,
BIKAN TINOU, KATABA TUREMWA,
TEROA TEMAKAU, TOKAUA TEMAUA __________ 2nd Respondents


Date of Hearing: 27 September and 13 November 2024


Appearances: Ms Taotere Korimara for the Applicants

Ms Kiata Ariera for the 1st Respondent

Mr Mantaia Kaongotao (the late) for the 2nd Respondents


RULING

  1. This is an application for review pursuant to section 81 of the Magistrates’ Courts Ordinance CAP 52 to examine the proceedings in case NTCN 19/23, following the leave granted on September 27, 2024.
  2. In summary, the applicants expressed their grievances regarding the proceedings conducted in NTCN 19/23, stating that they were neither invited nor summoned. They believe they have been treated unfairly as they were co-owners of the land that was sold to the 1st respondent by the 2nd respondents. They reference Rule 29 of the Magistrates’ Courts Rules, asserting that as interested parties, they should have been invited or summoned. The proceedings were therefore conducted in breach of such rule and natural justice.
  3. The response of the 2nd respondents indicated that the presence of the applicants’ other siblings, Tirawa, Teroa and Tokaua is sufficient. They (the siblings) represent their interest; therefore, it is unnecessary to extend invitations to them, as they reside elsewhere at that time. The proceedings were done in accordance with the rule. The matter was done because they were in dire need of financial assistance. They have received the purchase price and have divided it equally among six heads, representing all the issues of Takabwebwere. The shares belonging to the applicants are held by their siblings who were present at that time. They have sufficient remaining lands.
  4. The reply from the 1st respondent indicated that he was merely a bona fide purchaser. All the matters in the proceedings under review were conducted by the 2nd respondents themselves. He was never involved in anything. It would be prejudicial if NTCN 19/23 is set aside as he had paid a substantive amount and none of the respondents are employed. They lack the financial capacity to reimburse what he has paid. Furthermore, he has invested considerable resources in the development of the land. Their (applicants) only option is to initiate proceedings against their own siblings for their share of the purchase price.
  5. The law is clear on service and appearance. Rule 29[1] provides:

“In all matters before the court the parties or their representatives, or, in the case of a party who has failed to appear, his representative as appointed under rule 28 shall be present throughout.”


  1. Natural justice, in general, means fairness and being treated justly. In New Zealand in the case of EA v Rennie Cox Lawyers[2], which was relied upon by the Court of Appeal in Tebanna v Tebanna[3], the Court of Appeal there had this to say:

“In summary, where a judgment has been irregularly obtained, there will almost always be a miscarriage of justice such that the judgment should be set aside without considering the merits. However, that is not an inflexible rule that must be applied in every case, regardless of the circumstances. There may be cases where the irregularity in obtaining the judgment was so minor and inconsequential that it could not have caused prejudice and there is no arguable defence. If the court can safely conclude that there is no risk of a miscarriage of justice, it might properly decline to set aside the judgment.”


  1. The Court of Appeal in Tebanna (supra) stated that:

“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. It is a fundamental rule of natural justice. Orders made without hearing from parties who might be affected adversely by them are made only in exceptional circumstances, and usually on an interim basis. Final orders made on an ex parte basis carry a substantial risk of causing a miscarriage of justice. Judges can only know what orders are appropriate if they have all relevant facts and legal arguments put before them for consideration, by all affected parties.”


  1. It went on to say:

“The fundamental nature of the obligation to hear both sides before making a decision is reinforced by the principles that apply when an application is made to set aside a judgment obtained following irregular (or no) service. Although there remains a residual discretion for the Court to allow such a judgment to stand, the general rule is that it must be set aside to enable the merits to be properly assessed by the relevant Court.”


  1. In analyzing the situation, it is undisputed that the applicants were also co-owners, and in accordance with the principles of natural justice and the rule mentioned earlier, it is indeed true that they ought to have been notified of any decisions made by other co-owners that could affect their interests. Furthermore, it is also undisputed that the 2nd respondents were in urgent need of financial assistance and that the decision to sell the land was made collectively by the majority due to this necessity. Additionally, there is no dispute that of all people, the 1st respondent was approached for his assistance. There can be no dispute as well that the 1st respondent was never a party when NTCN 19/23 was done.
  2. Was it necessary for the applicants to be present despite the presence of their siblings? The applicants stated that they were legally obligated to attend. Had they been notified; they would have raised objections to the sale. Conversely, the 2nd respondents asserted that their presence was not necessary since their siblings were present. Their siblings' attendance suffices. The share belonging to their mother was transferred to them. In essence, the presence of their siblings fulfills the requirements of natural justice and the aforementioned rule.
  3. We note there are two primary reasons why the applicants would have opposed the land sale had they been invited to participate. First, there is an insufficient amount of land available for them and their children, and the land in question has yet to be distributed. Secondly, they are contesting the legitimacy of Tiae’s paternity, asserting that she is neither the biological nor the adopted daughter of Tekabwebwere. We are starting to question the authenticity of the applicants' claims. It appears to me that the core aim of their objection is their assertion that Tiae is not their natural or adoptive sister. In other words, they are attempting to argue that Tiae lacked any authority to appear, much less to consent to the land sale, which, if accurate, would render the entire proceedings in NTCN 19/23 invalid. Why have they waited all these years, and more importantly, why would their siblings, Tirawa, Teroa, and Tokaua, along with their cousins (the remaining 2nd respondents), consent to the sale initiated by Tiae? In my opinion, this rationale is merely a pretext to have NTCN 19/23 declared void ab initio for reasons that remain unclear. Nevertheless, this matter is irrelevant to the current application. This is an entirely separate issue that can be addressed at a later date. Regarding the claim of insufficient land, Tiae has stated that there are adequate lands still available.
  4. As per the authorities mentioned earlier, we find merit in their nonappearance, nonetheless. As co-owners of the land in question, they should have been summoned according to the law. The proceedings should not have proceeded with until the court was assured that their siblings were appearing on their behalf. This situation is indeed prejudicial to the applicants.
  5. If we were to accept their position, it would mean that NTCN 19/23 would be annulled; consequently, this would lead to the deregistration of the 1st respondent, which in turn necessitates the repayment of the sum of $60,000 from the 2nd respondents. We do not perceive any issues with the deregistration itself, but rather with the refund; is this feasible? Furthermore, what will happen to the developments made by the 1st respondent up to this point? We are aware that the original intent of the sale was driven by their urgent need for financial support, indicating that the 2nd respondents lacked the capacity to repay the amount of $60,000. This situation would be extremely detrimental to the 1st respondent if he were compelled to relinquish possession of the land, fully aware that he would never recover his funds and that his efforts in development would be in vain.
  6. For the 2nd respondents, their sole issue will be the reimbursement of $60,000.00. They may have already utilized the funds for their necessities by this time. NTCN 19/23 was adjudicated in 2023, marking a span of two years. This situation will also be detrimental to them, as they will be obligated to repay the amount. Considering the primary motive behind the sale, we have reservations regarding their ability to repay the amount of $60,000.00.
  7. Prior to reaching a conclusion, let us examine the stance of the 1st respondent. It was asserted on his behalf that he was a bona fide purchaser; he acquired the property in good faith, for valuable consideration, and without awareness of any conflicting claim against the aforementioned property.
  8. After listening to Taotere, Kiata and Mantaia and reviewing the minutes, and bearing in mind the principle enunciated in EA v Rennie Cox Lawyers (supra), we believe that the 1st respondent’s situation is somewhat unusual compared to other bona fide purchasers we are aware of, as he, although was the purchaser, did not actively participate in the sale nor did he initiate it from beginning to end. The decision to sell the land was entirely and exclusively made by the landowners (the 2nd respondents), and he was merely considered due to his reputation as a successful businessman, no doubt. It was undisputed that the majority of the landowners (2nd respondents) were experiencing financial hardships, and the only solution they collectively agreed upon was to sell one of their properties. The 1st respondent played no role whatsoever; the landowners managed everything independently, and it was all consensual. They approached the court themselves and ensured that the name of the 1st respondent was registered. Once all actions had been completed by them, the 1st respondent entered the scene solely to pay the price that the landowners had determined and confirmed in court. Consequently, the 1st respondent had no means of being aware of any potential issues regarding the ownership of the property and its transfer. It cannot be asserted that he was required to conduct due diligence prior to agreeing to purchase the land, as all actions were taken without his involvement. This is clearly evident from the record of NTCN 19/23 – he was not a party to the proceedings, and when the court issued its ruling, it said, “this court has heard from all parties, and it is clear from their testimonies that they all consented to the registration of King’s name who will pay $60,000.00.” This means that the registration was done first then the purchase price was paid later.
  9. As previously stated, this situation is distinguishable from the cases presented in support of either side, as the purchasers were consistently involved throughout the entire process. Consequently, they are required to conduct due diligence. In the instance of the 1st respondent, he did not participate at all. Once everything was finalized, he merely intervened to make a payment. For this reason, it cannot be asserted that he is required to perform due diligence. Had he engaged in the matter before his name was registered, then indeed, he would be obligated to undertake his own due diligence, the failure of which would be detrimental to his case.
  10. In particular, it is worth noting section 14 of the Lands Code[4] which stipulates that a landowner is permitted to sell their property if the next of kin consent and the court, after reviewing the situation, grants approval upon confirming that there are adequate lands still available. Evidence has been presented to this court by Tiae indicating that there are sufficient remaining lands for them. All the issues of Tokabwebwere were present, either by themselves or through their representatives. The applicants’ siblings were in court; they had the opportunity to raise objections if they believed the remaining lands were inadequate, yet they opted not to do so.
  11. We genuinely empathized with all parties; however, ultimately, we must reach a conclusion. Bearing in mind the individual positions of the parties, and the applicable laws, what course of action should we take in this situation? Since this application is submitted under section 81 of the Magistrates’ Courts Ordinance CAP 52, section 81(3) of the same outlines the remedies that this court is authorized to provide.
  12. In considering all aspects and taking into consideration section 81(3) previously referenced, along with the authorities cited earlier, we are of the opinion that while the applicants are impacted, setting aside NTCN 19/23 would significantly harm the 1st respondent for the reasons stated earlier. In the circumstances, we give the following orders:
  13. In view of the reasons herein mentioned, the application is hereby dismissed but with the consequences mentioned above. Based also on the above reasons, there will be no order for cost; parties are to bear their own cost.

Order accordingly.


Dated this 27 of May 2025.


HON. AOMORO T. AMTEN

JUDGE

TITAN TAOKAI
Land Magistrate Appeal Panelist
RITETI MANINRAKA
Land Magistrate Appeal Panelist

[1] Magistrates’ Court Rules
[2] [2018] NZCA 33
[3] [2021] KICA 8 (PacLII)
[4] Native Lands Ordinance CAP 61

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