IN THE HIGH COURT OF KIRIBATI

HIGH COURT LAND APPEAL 2016-00049

BETWEEN:	Rabunaiti Taberu & Teakoi Arikitau
					Appellants

	         AND:		      	Atinta Tabwebweiti & Maure Tabwebweiti
					Respondents

Date of Hearing:		    	29 April 2025
Date of Judgment:			1 July 2025

Appearances:		     	Ms Batitea Tekanito for the Appellants
                                                      	Mrs Kiata Kabure Ariera for the Respondents

JUDGMENT

A. The Case: Brief Facts

1.	Background
  
1.1.	This appeal is prompted by the Magistrates Court’s decision in BD 33/2016.  

1.2.	This case, BD 33/16, addressed two primary issues: i) confirmation of the actual locations or positions on the ground of the respective shares of Arikitau’s children on Teraereke 752-a in Ambo; and ii) confirmation of the location of Rabunaiti’s (appellant) house, which was claimed to be within her father’s (Taberu) share, as decided in CN 187/2000. Using the decision in CN 187/2000 as a reference point, the Magistrates Court confirmed, after conducting an onsite visit, that a) Taberu’s share on the ground was located only on the western or lagoon side of the road, and b) Rabunaiti Taberu’s (appellant) house was found to be within Tabwebweiti Arikitaua’s share, which begins immediately from the eastern side of the road. From this finding, the Magistrates Court ruled that Rabunaiti (appellant) should move her house to her father’s share on the western side of the road within three months from the date the judgment was delivered.     

1.3.	It should be noted that there was also an eviction miscellaneous application, no: 36/16, lodged by the Respondents against the Appellant. The decision on this miscellaneous application was then reserved by the Magistrates Court, pending the outcome of the Court's on-site visit to Teraereke to confirm the positions on the ground regarding the respective shares of Arikitau’s children, particularly those of the parents of both the Appellants and Respondents, as required by BD 33/16 in which both the Appellant and Respondents were also parties.

1.4.	CN 187/2000, which has highly influenced the decision in BD 33/2016, dealt with a) the distribution of the estates of the late Arikitau which included Teraereke 752-a in Ambo and b) the apportioning of Teraereke into equal shares and the allocation of the shares to each of Arikitau’s children (including Appellant’s and Respondents’ parents) based on the division starting from the western or lagoon side of the road up to the eastern or ocean side of the road towards the sea. These are the allocated portions/shares on Teraereke of Arikitau’s children, starting from the west to the east or lagoon side to the ocean side in that order, as decided in CN 187/2000:

Taberu Arikitau			-	752-a/1, maeao (western)
Tabwebweiti Arikitau		 -	752-a/2, mainikuna (eastern)
Teakoi Arikitau  			-	752-a/3, mainikuna (eastern)
Takoua Arikitau			-	752-a/4, mainikuna (eastern)
Teuoi Arikitau			-	752-a/5  mainikuna (eastern)
Angitoa Arikitau			-	752-a/6  tanrake (eastern)

1.5.	However, the Magistrates Court’s interpretation and application of CN 187/2000 in its judgment and rulings in BD 33/16 are unacceptable to the Appellant. In summary, the Appellant believes the Magistrates Court has completely misconstrued the judgment in CN 187/2000, a misunderstanding that heavily influenced its decision in BD 33/16, thus leading to this appeal. Furthermore, the Appellant also contends that the eviction issue is a separate matter that must be addressed independently.

2.	The Appeal

2.1.	Grounds of Appeal
2.1.1.	The appeal is based on 2 main grounds which, for clarity, may be elaborated as follows:

i)	the Magistrate Court erred in law in having made a decision/order for the removal of the Appellant’s house, a cause of action which was not stated in the case filed for hearing; and

ii)	the Magistrate Court erred in law in having made a decision that contradicts an earlier Magistrate Court’s decision.

2.2. Evidence in support of the Appeal

2.2.1. Submission for the Appellants
	
2.2.1.1. In supporting their appeal, the Appellants relied on the minutes and judgments of CN 187/2000 and BD 33/16, the evidence of Teakoi Arikitau presented in CN 187/2000, Rabunaiti Taberu’s affidavit, along with case authorities Henderson v Henderson (1843) 3 Hare 100, 67 ER 313, Teteki v Tata [2005] KICA 3, and Uouo v Tooki [2008] KICA 8 &12.  

2.2.1.2. In support of the first ground of appeal, the Appellants argued that CN 33/66 should only address the confirmation of the positions regarding the shares held by the parents of the Appellant and Respondents, particularly concerning Teraereke, as well as the confirmation of the location of Rubanaiti’s house, which was claimed to be within the location of her father’s (Taberu Arikitau) share. The eviction issue was not included in the cause of action required by BD 33/16; therefore, this matter should not have been part of the considerations, and consequently, the judgment made in this case. Counsel for the Appellant further contended that including the eviction issue in the case denied the Appellants the opportunity to properly argue and defend their position against the eviction application, which is unfair to them.

2.2.1.3. For the second ground of appeal, the Appellants persuaded this Court by referring to the evidence of Teakoi Arikitau given in CN 187/2000, which states: “Ao aron karaoana iroura tina ikatokatoka nako tanrake ... maeaon te kawai nako mainikun rake te kawai Taberu, imainikun Taberu ngkanne Tabwebweiti ....”, translation, “our respective shares were specially arranged so that one falls after the other starting from the western side towards the east side. Taberu’s share starts from the western side of the road and extends across the road to some point at the eastern side of the road; next on the eastern side of Taberu’s share is Tabwebweiti’s share ...” and so on. This clearly shows, the Appellants argued, that the Magistrates Court has misconstrued and thus wrongly applied the judgment in CN 187/2000 in its decision in BD 33/16. The Appellants further argued that what the Magistrates Court did in this case (BD 33/16) violated the doctrine of res judicata, which bars courts from reopening and contradicting final court decisions.—using the aforementioned Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 and Teteki v Tata case authorities to support this argument. 

2.2.1.4. In conclusion, the Appellants argued that for the mistake they believe was made by the Magistrate Court in its interpretation of the judgment in CN 187/2000 and application in BD 33/16, it is imperative for the Appellants to challenge and seek the reversal of the decision in this case (33/16) as soon as possible. 

2.3. Evidence against the Appeal

2.3.1. Submission for the Respondents

2.3.1.1. The Respondents opposed the appeal and also relied on the judgment in BD 33/16, including Miscellaneous Application 38/16, which sought eviction of the Appellant’s house from the eastern or ocean side of the road back to her father’s share on the western or lagoon side of the road. 

2.3.1.2. In response to the first ground of appeal, the Respondents clarified that the eviction decision made in BD 33/16 is proper. This is because there was also an eviction Miscellaneous Application, No: 38/16, against the Appellant, the decision for which was reserved pending the outcome of the court's on-site visit to confirm the respective boundaries of the Appellants’ and Respondents’ shares on Teraereke. Both the Appellant and Respondents were parties in Misc. App 38/16, so Counsel argued that the Magistrates' Court had not erred in law by including the eviction in BD 33/16.

2.3.1.3. For the second ground of appeal, the Respondents argued that the Magistrates Court had neither misconstrued nor contradicted the judgment in CN 187/2000. According to the judgment of CN 187/2000, the share of the Appellant or her father should only be on the western or lagoon side of the road, and it does not extend to the eastern or ocean side. Additionally, Counsel pointed out that when cross-examined in BD 33/16, the Appellant admitted that her share is on the western or lagoon side of the road, but due to erosion, she had sold her share. Furthermore, the Respondents highlighted the Appellant’s false allegation that the western or lagoon side of the road is family land. Therefore, rather than misinterpreting and contradicting the Magistrates Court’s decision in CN 187/2000, the judgment in BD 33/16 enforced or reaffirmed it.

3. This Court Key Findings

3.1. These are the key findings of this Court from the evidence submitted by both parties:

i)	The decision in BD 33/16 is based on the outcome of the onsite visit to Teraereke and the decision of CN 187/2000;
ii)	No evidence to show that CN 187/2000 has been challenged and overturned; therefore, it remains valid.
iii)	There was also a miscellaneous application, no: 38/16, which sought eviction of the Appellant’s house from the eastern or ocean side of the road back to her father’s share on the western or lagoon side of the road; the decision for which was reserved pending the outcome of BD 33/16;
iv)	Both the Appellant and Respondents were parties in both BD 33/16 and Misc. App 36/16;
v)	Res judicata is not an issue because the shares finalized in CN 187/2000 were enforced in BD 33/16, and the decision of BD 33/16 aligns with CN 187/2000. 
vi)	The Magistrate Court’s decision in BD 33/16 has neither misinterpreted nor misapplied the judgment in CN 187/2000; instead, it has enforced it. Such a decision clearly indicates that the share of Taberu Arikitau is on the western side. 
vii)	Despite her false statement in BD 33/16, claiming that the western or lagoon side of the road is family land, during cross-examination in BD 33/16, the Appellant admitted that she had sold her share on the western or lagoon side of the road due to erosion.

3.2. Based on these findings, this Court concludes that CN 187/2000, resulting from the onsite visit to verify the positions on the ground of the Appellant’s and the Respondents’ respective shares on Teraereke, along with the Appellant's own statement in BD 33/16, all support the fact that the Appellant’s share should be on the western or lagoon side of the road. This decision has not been challenged, therefore, it remains valid. Consequently, the decision in BD 33/16 has neither misconstrued nor contradicted the judgment in CN 187/16. Furthermore, the eviction decision made in BD 33/16 is appropriate, considering that there was also an eviction miscellaneous application against the Appellants, CN 36/16, the decision for which was pending the outcome of the onsite visit conducted in the aforementioned BD 33/16.

B. ORDER

4.1. For the above-mentioned reasons:

4.1.2.	the appeal is dismissed with costs to be taxed if not agreed; and

4.1.3.	the judgment in BD 33/16 is reaffirmed, accordingly.

THE HON. TEITIRO SEMILOTA MAATE MOANIBA
Chief Justice

 
TITAN TAOKAI						RITETI MANINRAKA
 Land Appeal Magistrate				Land Appeal Magistrate