IN THE HIGH COURT OF KIRIBATI

HIGH COURT LAND APPEAL 2024-05351

BETWEEN:	Obera Tiarite 
					Appellant

AND:	Tobiro Metieti & Others represented by Benateta Tiroba for issues of Tiroba Kabunare
					Respondents

Date of Hearing:		    	6 May, 2025
Date of Judgment:			29 May 2025

Appearances:		     	Ms Botika Maitinnara for the Appellant
                                                      	Ms Eweata Maata for the Respondents

JUDGMENT

A. The Case: Brief Facts

1.	Background
  
1.1.	The Magistrates Court’s judgment in MC/CA/ST 2024-02431 is the case on appeal. The primary issue at the heart of the dispute, which has prompted the appeal, is whether ownership of land plot 738/A/1, currently numbered 738a/1, in Abairarang was transferred in whole or in part from Tiroba Kabunare to Tim Murdock, Sam Murdock’s son, in 1965.

1.2.	By way of background, Abairarang is an islet owned by two brothers, Tiroba Kabunare and Kaburara Kabunare. Their registration divided Abairarang into two halves: Tiroba was registered over one half, Abairarang plot no. 738/A/1 (or 738a/1) on the Bikenibeu side of the islet, while Kaburara was registered over the other half, plot no. 738/A/2 (or 738a/2) on the Betio side of the islet.  

1.3.	It is also important to note that the ownership of the Abairarang plot 738/A/1 has changed over time since 1965. In 1965, Tim Murdoch was registered as the owner of Abairarang 738a/1. In 1970, Tim Murdoch sold the land to Terabata Groves, and in CN B 14/2007, the appellant, Obera Tiarite, purchased it from Terabata Groves.    

1.4.	The appellant’s case in MC/CA/ST 2024-02431 involved an eviction against the respondents from Abairarang 738a/1, claiming ownership based on their registration in CN B 14/2007. The respondents asserted that they own half of Abairarang 738a/1, while the appellant owns the other half according to the decision of CN 73/65. The magistrate court denied the eviction and agreed with the respondents, concluding that the appellant only owns half of Abairarang 738a/1. This led to the appellant's appeal.  
  
2.	The Appeal

2.1.	Grounds of Appeal

2.1.1.	Accordingly, the appellant filed two main grounds of appeal against the aforementioned Magistrates Court’s judgment as follows:

i)	the Single Magistrate when interpreting the court minutes of case 73/65 erred in law. Such interpretation resulted in his judgment overriding subsequent decisions of the Court with the same jurisdiction.; and

ii)	the Single Magistrate erred in law and in fact in deciding that the appellant’s land is only half of Abairarang 738a/1 when it is very clear from the decision of case 73/65 that the land of Tiroba is half of Abairarang islet.

2.2. Evidence in support of the Appeal

2.2.1. Submission for the Appellant

2.2.1.1. To support her grounds of appeal, the appellant, through Counsel, relied mainly on the minutes of CN 73/65, CN 5/70, CN B 14/07 and MC/CA/ST 2024-02431, including the appellant’s certificate of ownership over Abairarang 738a/1.

2.2.1.2. Counsel for the appellant provided background information concerning the land, Abairarang. She mentioned that Abairarang, an islet, was initially owned by two brothers. One half, plot no. 738a/1, was registered to Tiroba and the other half, plot no. 738a/2, to his brother. In CN 73/65, Tiroba went to court to register Sam Murdoch. He gave away his land, Abairarang 738a/1. In CN 5/70, Sam Murdoch sold his land to Terabata Gordon Groves, the sister of the appellant’s mother. Terabata was then registered on Abairarang 738a/1 as shown on her certificate of ownership. In CN B 14/07, Terabata sold the land to Obera Tiarite (appellant). Obera was then registered over Abairarang 738/1 as shown on her certificate of ownership. 

2.2.1.3 For the first ground of appeal i), the appellant implied in her submission that “te baire” and “te moti” given in CN 73/65, involving the transfer of title for Abairarang plot no. 738a/1 or 738/A/1 from Tiroba Kabunare to Tim Murdoch, are similar in meaning, though worded slightly differently. ‘Te baire’ mentions that whilst in its “baire”, the Abaokoro Magistrates Court justified support of its decision or “te moti”, their judgment simply restated what was already stated in  “te baire”, which stressed the Magistrates’ collective position in support of the transfer of title for Tiroba’s share, which is half of Abairarang islet or Abairarang plot no: 738/A/1 to Tim Murdoch. What might have possibly misled the Magistrates Court in MC/CA/ST 2024-02431 in interpreting “te moti” (judgment) in case 73/65 is the full stop (.) punctuation between the word “Abairarang” and the plot number “738/A/1”. In other words, if the full stop had been considered, the Magistrates Court’s understanding of the judgment would have differed or been correct. In addition, Counsel supported her argument by pointing out that the subsequent Magistrates Courts’ judgments in CN 5/70 and CN B 14/07, including the appellant’s certificate of ownership for Abairarang plot no: 738a/1 and the fact that Tiroba, the respondent’s father, no longer have a certificate of ownership for the said plot, is clear evidence that Tiroba did give away to Tim Murdoch the whole of his share of Abairarang, not half of plot no: 738a/1. 

2.2.1.4. For the second ground of appeal i), the appellant explained that the Magistrate Court does not have the jurisdiction to interpret, review, or change the judgments made in CN 73/65, CN 5/70, and CN B 14/07. As they belong to the same jurisdiction, it is improper for the Magistrates Court to interpret, review, or override such judgments in these cases, as only a higher court (High Court) is authorized to do so.

2.2.1.5. In support of the second ground of appeal ii), the appellant reiterated her points of argument, proving the mistake in interpreting the minutes of CN 73/65 made by the Magistrate Court in its judgment in MC/CA/ST 2024-02431, as shown in para. 2.2.1.4 above. Having been made as a result of the misinterpretation of the 73/65 minutes, the judgment that the appellant’s land is only half of Abairarang plot no: 738a/1, is, therefore, inconsistent with what Tiroba told the court and had agreed to in CN 73/65 which was to transfer the ownership title for Abairarang plot no: 738/A/1 or 738a/1 from him to Tim Murdoch.

2.2.1.6. Counsel also submitted that the appellant did not visit the disputed land or attempt to evict the respondents until 2024. Only in that year, 2024, did the appellant become aware that the respondents’ settlement had been established on the disputed land.

2.3. Evidence against the Appeal

2.3.1. Submission for the Respondent

2.3.1.1. In response to the appeal, the respondents heavily relied on the wording of “te moti” or the decison in CN 73/65 and Benateeta Tiroba’s affidavit to substantiate their objection against the grounds of appeal. 

2.3.1.2. In opposing the first ground of appeal i), the respondents asserted that her father, Tiroba, allowed or gave away only half of his land, Abairarang 738a/1, in CN 73/65. The respondent pointed out that if it was the intention of the Magistrates Court in case 73/65 to register Tim Murdock on the whole of Abairarang 738a/1, then the judgment should be phrased: “Sam Murdoch (we think she meant Tim Murdoch) must be registered on Abairarang 738a/1” instead of “Sam Murdoch (again we think she meant Tim Murdoch) will be registered on half of Abairarang 738a/1”. 

2.3.1.3. Additionally, the respondent referred to Benateeta’s affidavit, in which she stated that during the lifetime of their father, Tiroba, in the 1970s and 1980s, they used to camp on Abairarang during school breaks and Christmas holidays. Also, the appellant never visited the land in dispute nor attempted to evict the respondents until recently – i.e., in 2024. As far as Benateeta is concerned, their father had given away only half of his land, Abairarang 738a/1, to Sam Murdock, so they were shocked to find out in 2021 that their father was no longer registered over Abairarang 738a/1; instead, Obera Tiarite (appellant) was registered. The respondent explained that a separate case has been filed with the High Court, seeking a judicial review to correct this anomaly, but it has been pending since 2021. 

2.3.1.4. Furthermore, the respondents argued that the judgment in MC/CA/ST 2024-02431 had not contradicted previous judgments; to the contrary, it had simply confirmed the decision in CN 73/65.

2.3.1.5. In response to the second ground of appeal ii), the respondents reiterated and stressed their point that the judgment in MC/CA/ST 2024-02431is correct. Counsel argued that the minutes of CN 73/65 speak for itself – i.e. the respondents still have a title to half of Abairarang 738a/1.

3. This Court’s Key Findings

3.1. For clarity purposes, Abairarang is a small islet between Taborio and Ambo. Having weighed the evidence submitted by the two parties, these are our findings:

i)	The respondents’ claim of title over half of Abairarang 738a/1 is based on their interpretation of the wording of the minutes and judgment that was stated in ‘te moti’ of CN 73/65, and further submitted that the ‘te baire’ is not the judgment, therefore should not be considered. This was stated in the affidavit of Benateeta Tiroba.

ii)	The appellant’s claim over the whole of Abairarang 738a/1 is also based on their interpretation of the minutes and judgment of CN 73/65 that was stated in ‘te baire’ and ‘te moti’, including the subsequent Magistrates Court’s minutes of CN 5/70 and CN B 14/07 as well as the appellant’s certificate of ownership over Abairarang plot no: 738a/1, which all suggest or indicate that Tiroba Kabunare had indeed given away the whole of his share to Tim Murdoch in CN 73/65. The appellant’s argument is that ‘te moti’ should reflect ‘te baire’ and that there is a full stop after the word ‘Abairarang’ to reflect the true meaning of ‘te baire.’

iii)	Both parties continue to hold onto their differing interpretations of the minutes and judgment in CN 73/65 because the phrasing of ‘te baire’ and ‘te moti’ carries different connotations, due to the poor quality or blurry photocopies of the minutes. This issue may have caused the parties to miss important punctuation, leading to various understandings and interpretations of the minutes, as has occurred in this appeal; and

iv)	The interpretation of the Magistrates' Court judgment in MC/CA/ST 2024-02431 regarding the decision of CN 73/65 has a contradictory effect on the decisions of the subsequent magistrates' court cases in CN 5/70 and CN B 14/07. These later decisions relied on the certificate of ownership produced in the first case, CN 73/65, which determined that the entire share, not just half, of the respondent’s father’s share (Tiroba) in Abairarang was transferred to Tim Murdoch, the son of Sam Murdoch. The respondent’s father, Tiroba, owned half of Abairarang, and his plot number was Abairarang 738a/1. The two subsequent registrations over this share, following the first case CN 73/65, in CN 5/70 and CN B 14/07, represented the transfer of the entire plot, Abairarang 738a/1, not just half of it, to two subsequent owners, including the appellant in CN B 14/07. 

v)	The Kiribati words ‘te baire’ and ‘te moti’ have similar meanings; they both refer to the decision. The first word, ‘te baire,’ refers to the consensus or decision reached by the magistrates, while the second word, ‘te moti,’ is the decision or order of the court that has been agreed upon by the magistrates. The magistrate court in CN 73/65 referred to ‘te baire’ as the recorded consensus decision made by the magistrates and ‘te moti’ as the decision or order reflecting the consensus reached in ‘te baire.’ To truly understand the meaning and use of these two words, one must interpret the entire text or minutes, rather than just the sentence alone.  

vi)	We also note the inaccuracy of the magistrate in paragraph 18 of his decision in MC/CA/ST 2024-02431 when he states that, 
’18. Man n taran te order ke te kabane ni moti are e anga te bowi n C/N 73/65 are moan karaoaki iai ao ni kuakuaki iai Abairarang 738a/1 ao e kangai te Moti “Te baire: A kamatoa ni bane ba e na tei aran Sam Murdoch iaon ieteran Abairarang 738a/1.”

Translation
’18. From the order or the final decision of the court in C/N 73/65, which marked the first modification to Abairarang 738a/1, the decision was as follows: “The Decision: All agree that Sam Murdoch must be registered over half of Abairarang 738a/1.”

vii)	The magistrate court intended to quote from ‘te moti’ but instead the quote was from ‘te baire’, which contains a mixed statement of both ‘te baire’ and ‘te moti.’  

viii)	For ease of reference, we have quoted and translated the proceedings in CN 73/65 below. We agree with the magistrate court that the copy is neither clean nor clear, but this is the best we can obtain from it.

“73/65	Te katoka ara irouia Tiroba ao Sam, abana i Abairarang are iterana.
(73/65 The registration between Tiroba and Sam, his land at Abairarang, the half that he owns)

Tiroba (kain Eita): 	Ngai I tangira abau ae Abairarang nakon Sam ba au bai n tangira nakoina ba bon ana akoi nakoiu ni baai aika I kainanoi iai ao e karekei.
Tiroba (from Eita):	I want my land, Abairarang, to be registered under Sam as my gift to him for his kindness in providing me with the things I needed. 
	
Kauring: 	Kama tia n ongo ana karaki teuae Tiroba ba e anga abana ae Abairarang nakon Sam ba ana bai n tangira nakoina ba boon ana akoi ni baai aika e karekei ibukina ao tera ami baire iai.
Reminder:	You have heard from this man, Tiroba, who gives his land, Abairarang, to Sam as a gift for his kindness in providing him with the things he needed, so, what is your decision?

Te Baire:	A kanakoa ni bane ba e na tei aran natina Tim Murdoch iaon Abairarang 738A/1 ba e bati naba abana imwin aio.
Consensus decision:	They allowed all to be registered in his son’s name, Tim Murdoch, over Abairarang 738A/1, as he has plenty of land left after this.

Te Moti:	E na tei aran Tim Murdoch iaon iteran Abairarang. 738A/1.
Decision/Order:	The name of Tim Murdoch must be registered over half of Abairarang. 738A/1”

ix)	Under the paragraph ‘Reminder,’ the magistrates were informed of the landowner Tiroba's wishes to give his land, Abairarang, to Sam, and they were asked for their decision. ‘Te baire’ is the record of the magistrates’ consensus agreeing to allow all of Tiroba’s land in Abairarang to be registered under Sam’s son, Tim Murdoch, because they believed that Tiroba had plenty of other lands remaining after this registration. ‘Te moti’ is the decision or order properly recorded, and we believe there is a full stop after the word ‘Abairarang’ to reflect the magistrates’ decision as recorded under ‘Te baire.’ Without this full stop, the decision will differ completely from what Tiroba and the magistrates intended during the proceeding. This should be the correct way to interpret the decision of CN 73/65, which also reflects the description of Tiroba’s share of Abairarang as stated at the beginning of the minutes, which was half of Abairarang.

x)	We also believe the appellant holds an indefeasible title to the land, Abairarang 738A/1, since her registration in CN B 14/07 in 2007. This title is based on the indefeasible title of Tim Murdoch from 1965, as specified in CN 73/65. 

B. ORDER

4.1.	For the above-mentioned reasons:

4.1.1.	the appeal is, hereby, allowed.

4.1.2.	the decision in MC/CA/ST 2024-02431 is set aside; and

4.1.3.	the respondents must vacate the land within 6 weeks.

4.1.4.	cost to the appellant, to be agreed or taxed.

THE HON. TEITIRO SEMILOTA MAATE MOANIBA
Chief Justice

 

TITAN TAOKAI						RITETI MANINRAKA
Land Appeal Magistrate					 Land Appeal Magistrate