Teweru v Tamuera [2025] KIHC 13; Land Appeal 14 of 2023 (27 March 2025)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT LAND APPEAL 14 of 2023

BETWEEN: Renata Teweru, Tetino Teakai, Teaotai Tamatoa
Appellants

AND: Tawita Tamuera
Respondent

Date of Hearing: 4 March 2025
Date of Judgment: 27 March 2025

Appearances: Ms Batitea Tekanito for the Appellants
Mr Banuera Berina for the Respondent

JUDGMENT

A. The Case: Brief Facts

1. Background
   

1.1. The appellant challenges the decision of the magistrate court in Betlan 413/22, delivered on 16^th February 2023. This was an eviction case taken up by the Respondent (formerly the applicant in the lower court) against the Appellants (then Respondents in the lower court). The land in dispute is Tabito 762r2 located in Banraeaba, Tarawa. The magistrate found that the appellant had no title to the land and, therefore, granted the eviction against them.

1.2. It is important to note that this application is out of time however, the respondent did not oppose it.

1.3. It is also important to mention here that the appellants applied to introduce new evidence in case number Misc. App 2024-03769. The application was considered by this Court on 23 July 2024. The new evidence is as follows: Case No. 47/03, Minutes of HCLA 3 of 2003, Certificate of ownership dated 11/11/22, Minutes of Betlan 21/15, Minutes of C213/2000, and Land Register showing the former owner prior to the exchange of land confirmed in 23/93. The respondent did not oppose the introduction of these new evidence as the court could also take judicial notice of them. Consequently, the application was allowed.

2. The Appeal
   

2.1. Appeal Grounds

2.1.1. The three grounds are listed below;

Ground 1
The court erred in law in making an order for eviction against the appellants without holding a trial.

Ground 2
The court erred in law in holding that the appellants should vacate the land due to their lack of ownership when there are earlier decisions of C213/2000, CNTT 94/03, 24/12, HCLR 3/2003 and Betlan 21/15 in support of the appellants' ownership which the Respondent acknowledged.

Ground 3
The single magistrate misunderstood the issue.

Ground 4
The decision to evict was made without ascertaining the boundary between the appellants and respondent land.

2.2. Evidence in support of the Appeal

2.2.1. Submission for the Appellants

2.2.1.2. In support of ground appeal 1, Counsel for the Appellants emphasised the point that, although the parties had waived their right to a trial, it is crucial that a trial should have been conducted because the case at hand involves numerous issues, each involving factual and legal questions that require thorough examination through examination-in-chief and cross-examination, hence the need for a trial. Basically, these factual and legal questions relate to or are concerned with:

- i) the legitimacy of the decision in the Arorae case no: 23/93 for the exchange of Tabito with Tentanini between Kieuriri and Taae;

- ii) the validity of the exchange or the Arorae 23/93 decision due to the 10-year (i.e., 1993-2003) delay in registering Taae over Tabito;

- iii) the court’s administrative error in registering the issues of Kieuriri on plot 762r instead of 762r/2 and how the mistake affects the legitimacy of subsequent transactions and registration;

- iv) the legitimacy of the land sale of Tabito by a Bonafide purchaser from the issues of Kieuriri;

- v) effect of the decision in Betlan 21/15 on the appellants’ ownership over 762r/1;

- vi) the effect of the apellants’ failure to produce the required certificate of ownership in their submission on the appellants’ legitimate interest in Tabito 762r/1;

- vii) appellants’ possession and use of the property and any improvements made and whether the earlier court decision approving the appellants’ ownership is protected by the doctrine of res judicata;

- viii) the need to ensure fair opportunity is accorded to the appellants to respond to all claims and defence competing claims made by the issues of Taae, that is, whether the respondent has a stronger claim to the property and the basis for his eviction application, and

- ix) the existence of Tabito 762r/1 over which the appellants have been registered.

2.2.1.3. Counsel stressed the point that “making a decision based on the written submission is inadequate, rendering the outcome of the proceeding to be erroneous, irregular, unjust, unfair and undermines the Appellants’ interest in the property... and, therefore, such decision must be dismissed.

2.2.1.4. In support of grounds 2 and 3, Counsel argued that the court had misunderstood the existence of Tabito 762r/1. This misunderstanding has led to the misinterpretation of the facts and legal principles involved. In fact, as confirmed by the certificate of ownership and the minutes of Betlan 21/15 (new evidence), Tabito 762r/1 does exist. It is clear, therefore, that registration of the appellants over Tabito 762r/1 does meet all legal requirements, including the indefeasibility of title requirements, as stipulated by section 4 of the Native Lands Ordinance. Accordingly, the validity of the appellants’ title over Tabito762r/1 cannot be questioned.

2.2.1.5. The appellant cited the High Court case of Tokintebuaka v Areretaake [2014] KICA 5 to support their position. Counsel asserted that “... the court held that a registered certificate of ownership along with supporting earlier court decisions constitutes an irrefutable proof of the existence and ownership of a land parcel.”

2.2.1.6. In support of the ground that a boundary determination should be made first before the eviction is granted, the appellant claimed the magistrate court should determine the boundaries first since they own Tabito 762r/1 and not 762r/2, which the respondent owns.

2.3. Evidence against the Appeal

2.3.1. Submission for the Respondent

2.3.1.1. At the outset, Counsel for the respondent highlighted the following points:

1. their claim is about the eviction of the appellants from Tabito 762r/2;
   
2. when the lower court first called the case on 20^th October 2022, the appellants claimed they were not living on Tabito 762r/2 but 762r/1 instead;
   
3. titles to native lands are registered in the register of native lands following a decision of the Lands Court so, with this understanding, the appellants (who claimed to have a good title over Tabito 762r/1) and the respondent then conceded to waive their rights to a trial and to rely solely on their written submissions to support their respective positions on the case;
   
4. at the hearing mentioned in ii) above, the appellants did not ask for a trial nor did they ask for a boundary determination between 762r/1 and 762r/2; instead they only asked for a determination on whether or not they have a valid title on Tabito 762r/1 – hence the parties’ agreement not to call evidence but to rely only on their written submissions;
   
5. appellants’ submission failed to prove they hold title to the plot they occupy, claimed to be Tabito 762r/1, so the Single Magistrate ruled that the eviction application be granted,
6. the lower court was not bound to advise the parties on how to conduct their case, especially since legal counsels competently represented both parties. It was parties’ choice not to call evidence, therefore, the appellant cannot complain now.
   

2.3.1.2. The respondent clarified that the two parties chose to waive their rights to a trial and rely solely on their respective written submissions. This choice has been based on the understanding that the appellants only asked for a determination on whether or not they have a valid title on Tabito 762r/1.

2.3.1.4. In response to the questions of law and facts pointed out by the appellants, the respondent explained that:

1. the validity of the Arorae case no: 23/93, which ruled in favour of the exchange of Tabito 762r/2 with Tentanini in Arorae between Tawita (for Taae) and Kieuriri Ioatata, was never questioned by the appellants in the lower court;
   
2. when the validity of the Arorae case no: 23/93 was confirmed by the High Court in HCLA 8/06, the appellants’ predecessors didn’t raise questions on the long delay in registration or in reflecting the decision made in Arorae case no: 23/93 in the Lands Register;
   
3. the appellants did not raise any point about the mistake made by the court when it registered their names on Tabito 762r/1 instead of Tabito 762r/2 and how they had been adversely affected by that mistake;
   
4. there is no legitimacy in the purchase of land title for Tabito from the issues of Kieuriri as, they cannot pass on the title when they do not own it in the first place, as confirmed by HCLA 8/06, that Kieuriri’s issues no longer hold any title over land Tabito in Banraeaba because of the transfer case in Arorae;
   
5. the interpretation of the effect of the decision in case no: Betlan 21/15 is a legal question, not a factual one;
   
6. the validity of a land certificate of ownership depends on the validity of the supporting court minutes; hence, on its own, a certificate of ownership cannot exist;
   
7. The appellants' only defence is to prove that Tabito 762r/1 existed before the decision in case no: 21/15. However, the appellants have failed to substantiate this defence, so they cannot establish grounds to support their claim that they have a valid title over the land in dispute.
   

2.3.1.5. The respondent further argued that the court has not misunderstood the fundamental issues regarding the existence of Tabito 762r/1.To the contrary, as argued by the respondent, the Single Magistrate understood the issues very well when he asked in his judgment, “the question is whether they have a good title to the land Tabito in Banraeaba?”. He found that they did not have title after the transfer.

3. This Court’s Findings

3.1. Following is a summary of the Court’s findings based on the submissions and all the evidence presented by both parties:

1. on 7^th September 1993, the Arorae Magistrates Court endorsed or ruled in favour of the exchange of Tabito 762r/2 in Banraeba with Tentanini in Arorae between Kieuriri and Taae;
   
2. It is clear that Tabito 762r/1 was born out of the court’s mistake made in Betlan 21/2015 when the court did not follow the correct plot number,Tabita 762r2, used by the parties in that case;
   
3. before the year 2015, when the mistake was made, Tabito 762r/1 did not exist;
   
4. both the appellants and respondent did agree to waive their right to a trial but to rely on their written submissions only to support their respective positions;
   
5. The dispute over ownership between Kieuriri’s issues and the respondent was resolved in HCLR 8 of 2006. Boneru Kieuriri knew of the outcome of HCLR 8 of 2006 that the transfer in Arorea in 2003 concerning the land Tabito was valid.
   
6. The new documentary evidence referred to in this court by the appellant did not support the idea that the plot, 762r/1, existed before the transfer.
   
7. The case authority, Tokintebuaka v Areretaake, is irrelevant to the case at hand since the existence of the plot Tabto 762r/1 was a mistake created by the Court in Betlan 21/15.
   

B. ORDER

4.1. For the reasons mentioned above:

4.1.1. the appeal is not allowed and

4.1.2. the decision in case Betlan 413/22 is affirmed, accordingly.

4.1.3. Cost is awarded to the Respondent, to be taxed if not agreed.

THE HON. TEITIRO SEMILOTA MAATE MOANIBA
Chief Justice

TITAN TAOKAI RITETI MANINRAKA
Land Appeal Magistrate Land Appeal Magistrate