IN THE HIGH COURT OF KIRIBATI

HIGH COURT LAND APPEAL 14 of 2020

BETWEEN:	Tebutoo (Butoo) Iannang mtmm(brothers & sisters) 
					Appellants

	         AND:		      	Terawanteuea (Rawanteuea) Burangke
					Respondent

Date of Hearing:		    	18 March & 29 April 2025
Date of Judgment:			27 May 2025

Appearances:		     	Ms Maere Kirata for the Appellant
                                                      	Ms Batitea Tekanito for the Respondent

JUDGMENT

A. The Case: Brief Facts

1.	Background
  
1.1.	This proceeding is two-fold: i) an appeal for out of time, as the appeal was just filed about 4 months after the expiration of the statutory time limit allowed or about 7 months after the appealed decision was delivered; and ii) the substantive appeal against the Abaiang Magistrates Court’s decision in CN 31/19.

1.2.	CN 31/19 concerns the determination of Terawanteuea Burangke’s (respondent) house plot or its location on the ground. Terawanteuea’s house plot is located in Teabanimate 265e/2, which, according to CN 46/17, is registered under Tebutoo Iannang mtmm, with Terawanteuea (respondent) registered only for the portion occupied by his house plot area. The judgment indicates that the respondent’s house plot area is situated on the western side of the field and ends before the bwaibwai pits. The matter before CN 31/19 is determining the boundary of the respondent’s house plot. The appellant claims that the magistrate court’s decision has resulted in enlarging the respondent’s house plot area, contrary to the decision of CN 46/17; hence, this appeal.

1.3.	The respondent agreed to enlarge the time but asked for a $500 fee. The appellants accepted the fee and informed this court that the High Court also awarded them a $500 fee on the last hearing date in Abaiang. Based on this, both parties agreed that they no longer owed each other any cost payment. 

1.4.	On the basis of this agreement by the parties, this Court granted the out-of-time application and proceeded with the hearing of the substantive appeal forthwith.

2.	The Appeal

2.1.	Grounds of Appeal

The appeal is based on three main grounds, which are listed below:

i)	the Magistrates Court erred in law and fact in having increased the size of the Respondent’s house plot on Teabanimate 265e/2 beyond what had been agreed by the Appellant’s father, which was evident in the positioning or layout of the Respondent’s houses, as pointed out on the ground by the Appellant;

ii)	the Magistrates Court erred in law in having taken into account the Respondent’s evidence regarding his house plot’s boundaries on Teabanimate 265e/2, yet she has no title to this land plot but the Appellants; and

iii)	the Magistrates Court erred in law in having based its judgment on the decision in CN 44/17, which did not do the boundary determination of the Respondent’s allocated or agreed house plot area.

2.2. Evidence in support of the Appeal

2.2.1. Submission for the appellant

2.2.1.1. The Appellants heavily relied on Tebutoo Iannang’s affidavit, Abaiang Magistrates Court’s decision in CN 44/17 and CN 46/17 in supporting their appeal against the judgment of CN 31/19. 

2.2.1.2. In support of the first ground of appeal, the Appellants made it clear that, according to the distribution of Kaibakia’s estates among his children in CN 46/17, Terawanteuea’s father, Burangke, was allocated Tekamam, which is situated close to Teabanimate, as his share. Teabanimate was allocated to Tebutoo mtmm as the share of their father, Iannang Kaibakia, but Iannang permitted Terawanteuea to settle and be registered where his house-plot was (which used to be his father’s), which, on the ground, should be situated in the western or towards the west side of the field and stops before the bwaibwai pit, according to the judgment of CN 46/77. 

2.2.1.3. However, Counsel argued that Terawanteuea (respondent) had expanded the size of his house plot beyond what the Appellants’ father permitted, as agreed and evident in the layout or locations of his houses on the ground.  The location of Arobati’s branch store, authorized by the Respondent to be built on Teabanimate, was another evidence provided by the Appellants to prove that the Respondent had expanded his house plot area beyond what had been permitted by their father and agreed upon in CN 46/17. In an attempt to address the latter situation, the Appellants took up an injunction in CN 44/17, against Terawanteuea (Respondent) to evict Arobati’s store from the spot it was occupying, however, their attempt was not granted since the land had not been distributed. The distribution was later done in CN 46/17. Subsequently, as explained in Tebutoo’s affidavit, the Appellants again took up court proceedings in CN 31/19, the case on appeal, against the Respondent so that the actual agreed allocated location on the ground of Terawanteuea’s house plot was ascertained.

2.2.1.4. To support the second ground of appeal, the Appellants argued that the Respondent has no title to Teabanimate. Teabanimate is the share of their father, Iannang Kaibakia, from Kaibakia’s lands when distributed in CN 46/17. Moreover, the Appellants argued that Terawanteuea (Respondent) is only licensed to have a house-plot on Teabanimate, so they, Appellants, retain the right to determine the size of the Respondent’s house-plot on their rightful land; the Respondent does not have the right at all over the matter, hence his evidence should not have been welcomed and taken into account by the Magistrates Court in CN 31/19.

2.2.1.5. For the third ground of appeal, the Appellants stressed that CN 44/17 (we think Counsel meant CN 46/17) did not determine the boundaries or positions on the ground of the Respondent’s area of house plot. The case only dealt with the distribution of Kaibakia’s estates to his children, hence the Magistrates Court’s decision in CN 31/19 should not have been based on CN 44/17 (again it should be CN 46/17); instead a proper boundary determination to ascertain the boundaries on the ground of the Respondent’s allocated area of his house-plot should have been undertaken and the outcome used to inform the Magistrates Court’s decision instead.

2.2.1.6. In response to the Respondent’s question on the validity of the Appellant’s case in relation to section 15 (we think she meant section 12) of the Lands Code - since she had left the land in dispute and gone to settle outside Kiribati for a duration of 40 years (which is well over 15 years) - the Appellants explained that for such cases of the kind the Court may do the distribution of the land as if the landowner has died issueless. So, impliedly, Counsel considered the question inapplicable and thus irrelevant to this case.

2.3. Evidence against the Appeal

2.3.1. Submission for the Respondent

2.3.1.1. Responding to the grounds of appeal, the Respondent also relied on the minutes and judgments in CN 46/17 and CN 31/19. 

2.3.1.2. In opposition to the first ground of appeal, the Respondent argued that, according to the land distribution in CN 46/17, Teabanimate is shared between or co-owned by Iannang (the Appellants’ father) and Burangke (the Respondent’s father), but the latter’s share is restricted to where the Respondent’s house-plot area is located. In other words, the Respondent had not expanded the area of his house plot beyond what was agreed and decided in CN 46/17. During the proceedings in CN 46/17, the Respondent did highlight the point that Teabanimate is co-owned by the respective fathers of the Appellants and Respondent by explaining that Burangke’s share in Teabanimate is confined to the Respondent’s house-plot area only, whilst the Appellants’ father, Iannang, owns the remaining parts of the said land.  

2.3.1.4. The Respondent did not give a direct answer against the third ground of appeal but, impliedly, they also opposed this ground. That is, though Counsel confirmed that CN 46/17 is only a land distribution case, it is implied by her submission that reference to this case had been helpful particularly to the Magistrates Court in knowing the registered owners of Teabanimate, a certain portion of which was not only occupied by the Respondent’s house plot but was also registered under the Respondent, as agreed in the said case – an issue which is the primary subject matter in CN 31/19.

2.3.1.5. The Respondent also questioned the validity of the case in dispute since Appellant Tebutoo had left the disputed land and lived outside Kiribati for 40 years, which is far beyond 15 years. 

3. Court's Findings 

3.1. Deducing from the evidence, this Court finds the following:

i)	Terawanteuea and Tebutoo mtmm are first cousins as their fathers and mothers are the children of Kaibakia (wife of Tiebane), the original owner of Teabanimate 265e/2. CN 46/17 is about the distribution of Kaibakia’s estates (lands, pits and land lease) amongst his children (the parties’ fathers and mothers). As clearly shown in the decision in CN 46/17, whilst Tebutoo Iannang mtmm (appellants) should be registered over Teabanimate 265e/2, Terawanteuea (respondent) should also be registered over the portion of Teabanimate where he occupied, as agreed by the parties in the case. Of importance to note is the fact that both the named appellants and respondent in this case on appeal were also parties in CN 46/17. In effect, the appellants’ argument concerning ground two that the respondent has no title on Teabanimate 265e/2 is not accepted; the respondent is also the owner of Teabanimate 265e/2 in the area where he has his houses.

ii)	The location of the respondent’s portion (house plot) is stated in CN 46/17, situated on the western side of the field and ending at the bwaibwai pit. The appellants referenced the decision of CN 44/17 in their third ground, but we believe they intended to refer to CN 46/17, since CN 44/17 pertained to the application for the restraining order regarding the store located on the land in dispute.

iii)	The outcome of the boundary determination in CN 31/19 confirmed that Terawanteuea’s house plot area on the ground remained within the area agreed upon in CN 46/17, stretching from the northern to the southern boundary, encompassing the area above the pit and stopping at the western side of the field.   

iv)	The difference between the two decisions, CN 46/17 and CN 31/19, is that the latter case clarified where the house plot area ends on its northern and southern sides. This indicates that the respondent's house plot extends to the north and southern boundaries of Teabanimate 265e/2. 

v)	The magistrate court in CN 31/19 ruled that the respondents remained in the same area as in CN 46/17. However, we are skeptical about this; the ruling in CN 31/19 appears to allocate the respondents more land than originally stated in CN 46/17. CN 46/17 did not indicate that the respondents' house plot extends to the northern and southern edges of Teabanimate 265e/2. Furthermore, the magistrate court's decision in CN 31/19 did not clarify why they believe the respondents remain in their original area when they stated that the extent of the respondents' area reaches the northern and southern limits of Teabanimate 265e/2, a detail the magistrate court in CN 46/17 did not include. This issue is ambiguous and can only be clarified by the magistrate court.

vi)	To bring closure to the dispute, it is essential to determine the boundaries of the respondent’s house plot area in line with the decision of CN 46/17, particularly to assess whether the respondent's area reaches the northern and southern boundaries of Teabanimate 265e/2.  

vii)	Section 15 of the Lands Code is entirely irrelevant in this case, but section 12, which reads as follows, is closer to the point made by the Respondent: “if an owner is absent from his island for 15 years, the court should enquire the intention of the owner or his issue to return. If the court is satisfied that neither the owner nor his issue will return then the estate may be distributed to his next-of-kin who live on the island as though the owner had died issueless or decided by the court.”

viii)	The Respondent's point regarding section 12 of the Lands Code is not applicable in this appeal because Tebutoo and the issues have not explicitly indicated their intention not to return to their island or Abaiang. However, based on the implications of this case, it can be safely assumed that the Appellant and the issues do not intend to leave Abaiang for good.

B. Court’s ORDER

4.1.	For the above-mentioned reasons:

4.1.1.	the appeal is hereby allowed.

4.1.2.	the decision in CN 31/19 is dismissed; and

4.1.3.	The case is remitted to the magistrate court for re-hearing to determine the boundaries of the respondent’s area allocated to him in CN 46/17.

4.1.4.	Parties to bear their costs.

THE HON. TEITIRO SEMILOTA MAATE MOANIBA
Chief Justice

TITAN TAOKAI					RITETI MANINRAKA
Land Appeal Magistrate				Land Appeal Magistrate