Tataua v Taam [2025] KIHC 57; Land Appeal 01666 of 2024 (1 September 2025)

IN THE HIGH COURT OF KIRIBATI
LAND JURISDICTION

HIGH COURT LAND APPEAL 2024-01666

BETWEEN: IOANE TATAUA
Appellant

AND: TONGANIBEIA TAAM
Respondent

Date of Hearing: 27 May 2025
Date of Judgment: 1 September 2025

Appearances: Ms Eweata Maata for the Appellant
Mr Banuera Berina for the Respondents

JUDGMENT

Background of the case

1. The case was initiated when the Respondent filed proceedings to evict the Appellant from the land he is registered on, specifically Teitibong 658o/2a Bikenibeu. The Appellant was the defendant in Betlan 459/22, while the Respondent was the plaintiff.
   
2. The Appellant's mother, Nei Titirou, was allowed to settle on the Respondent’s father’s land, Teitibong 658o/2a. In Betlan 459/22, the Respondent filed an eviction case against the Appellant from the land, Teitibong 658o/2a, as Nei Titirou, the Appellant’s mother, had passed away, and the court approved it.
   

Grounds of Appeal

3. The Magistrates’ Court erred in law in accepting and relying on hearsay evidence from the Respondent’s/Plaintiff’s witness without supporting evidence during the trial.
   
4. The Magistrates’ Court erred in law and in fact in holding that the commencement of the proceedings for eviction of the appellant but the respondent terminated the license to occupy when it is clear from the unchallenged evidence of the Appellant/Defendant’s only witness that the Respondent/Plaintiff gave his word to the Appellant that he can live peacefully and would not be disturbed by his children.
   
5. The Single Magistrate also erred in law and fact in holding that section 15 of the Native Lands Ordinance did not apply as stated in paragraph 12 of the judgment, the reason being that the Appellant had not made significant improvements to the land such as constructing a seawall or burying a pit when there was sufficient evidence that the Appellant did make significant improvements without the interference of the Respondent for more than 30 years
   

Arguments and the Court’s Analysis

6. The first ground of appeal is that the Magistrates’ Court erred in law in accepting and relying on hearsay evidence from the Respondent’s/Plaintiff’s only witness, Teaira Tonganibeia, without any supporting evidence during the trial.
   
7. The issue to determine is whether Teaira’s evidence is admissible in court. A consent letter was tendered and marked as Exhibit 2. It is a consent letter from the landowner, Tonganibeia Taam, whereby he granted his authority, along with that of his brothers and sisters and their children, to his daughter, Teaira Tonganibeia, to act on their behalf in family matters.
8. The Magistrate accepted the letter, and Teaira was permitted to represent her father and the rest of the family in the eviction case of Betlan 459/22 against the appellant, Ioane Tataua, as a witness. However, we agree with the appellant that the letter did not specify or authorize her to initiate eviction proceedings against the appellant, Ioane Tataua. The letter was also not signed before a Justice of the Peace to confirm its authenticity. Nonetheless, this does not negatively affect the case, as Tonganibeia was named as a party, not Teaira. Teaira was only called to provide evidence.
   
9. The appellant contends that Teaira's testimony is hearsay since she was just a young girl when the settlement agreement was made between her grandfather, Taam, and the appellant’s mother, Titirou, in the 1970s. Her testimony states that Taam and Titirou agreed to exchange lands. Titirou was permitted to live on Teitibong (the disputed land), and in return, she was to give her land in Banraeaba to Taam. However, Titirou has not fulfilled her part of the agreement. Her father, Tonganibeia (the respondent), sent a letter to the appellant instructing him to vacate the land. Then, he initiated eviction proceedings against him when the appellant refused to leave the land. The respondent denies that the agreement was for an exchange of lands; instead, their mother, Titirou, was given the land by Taam to reside on for as long as she wished.
   
10. We have reviewed the minutes and agree that Teaira’s evidence that the settlement agreement was for an exchange of lands was hearsay. We note from the minutes that when Teaira was asked during cross-examination if she knew about the agreement because she was told, she confirmed. In other words, she knew no more than what she had been told. Hearsay evidence is inadmissible and cannot be used by a court to determine a fact. The Magistrate was therefore quite wrong to accept the witness’s testimony about the initial settlement agreement between the appellant’s mother and her grandfather, as this was hearsay evidence because she learned about it from her father.
    
11. Therefore, the magistrate court should disregard this part of the evidence and instead accept the respondent’s evidence that the agreement was for Titirou to live on the land for as long as she wanted.
    
12. Furthermore, in paragraph four, on the last two lines of the judgment, a notice of eviction by letter authored by Tonganibeia Taam addressed to Ioane Tataua was referenced, purportedly based on Teaira’s testimony. This eviction notice was not submitted as part of the Respondent’s evidence in the lower Court, but the appellant did not deny receiving this eviction letter from Tonganibeia. The minutes show that the appellant confirmed he had received Tonganibeia’s letter, which instructed him to vacate the land. He did not question that the letter was indeed from Tonganibeia. He only stated that when his mother, Titirou, passed away, he went to see Tonganibeia with the intention of buying the land, but Tonganibeia refused to sell it and instead told him that he could live on the land without any problem.
    
13. In light of the above, we dismiss this ground of appeal because the evidence that the appellant was notified by letter from the respondent Tonganibeia to vacate the land was not disputed. Although the letter was not submitted, the court is entitled to accept this evidence.
    
14. The Appellant, through his counsel, also argues that a portion of land was given to Nei Titirou, the appellant’s mother, by the Respondent’s father, Taam, out of kindness because he was related to her.
    
15. The Appellant submitted that it was a gift for kindness according to Section 6 (i) of the Native Lands Code. The portion was given to his mother out of goodwill or “kukurein nanona” as he had known her as a close relative.
    
16. Section 6(i) stated the following;

“A gift for kindness

6. (i) An owner is free to give a gift for kindness, and it is immaterial if he is neglected or not, and the gift may be approved by the Court. If there is no neglect, the gift will not be approved, if it is large, and it will result in his next of kin being left in hardship.”

17. The Respondent stated that his father, Taam Tonganibeia, allowed Nei Titirou, the appellant’s mother, to live on his land, Teitibong, but did not transfer that portion as a gift out of kindness. The issue here is to determine whether Taam Tonganibeia, the respondent’s father, actually gave a part of his land, Teitibong, as a gift of kindness to Nei Titirou, the appellant’s mother.
    
18. Counsel for the respondent pointed out that if it were true that the land was a gift to Titirou for kindness, Titirou should have had her name registered on the portion of land. However, since the 1970s, when Nei Titirou first settled on the land and during the lifetimes of both Nei Titirou and Taam, no such registration has been made to confirm the intention of the land being given as a gift for kindness.
    
19. As mentioned in the judgment of Betlan 459/12, the plaintiff, now the respondent, provided evidence stating that Taam, her grandfather, was the one who allowed Nei Titirou to live on the land. The defendant, now the appellant, agreed and added that his mother, Nei Titirou, owns land in Banraeaba, but it needs clarification first. Therefore, Taam permits them to live on his land in Bikenibeu. There is no mention of the land given to Nei Titirou as a gift out of or for kindness. Therefore, we reject the appellant’s counsel's argument that the land was a gift given to Nei Titirou as an act of kindness.
    
20. The second ground of appeal, is that the Magistrates’ Court erred in law and in fact in holding that the commencement of the proceedings for eviction of the appellant but the respondent terminated the license to occupy when it is clear from the unchallenged evidence of the Appellant/Defendant’s only witness that the Respondent/Plaintiff gave his word to the Appellant that he can live peacefully and would not be disturbed by his children.
    
21. The Appellant, through his Counsel, stated that after his mother died, he approached the Respondent (Tonganibeia Taam) and asked for permission to buy the land. The Respondent assured him that he could live on the portion of the land they currently occupy without interference from him or his children. The Appellant believed that the Respondent had now permitted him to continue living on the part allocated to his mother and had built a permanent toilet and bathroom.
    
22. The respondent argued that the permission for settlement was given to the appellant’s mother, not to him. According to Teaira's evidence, the consent had ceased when her father, Tonganibeia Taam, sent the appellant the eviction letter and initiated eviction proceedings against him.
    
23. The case of Teweia v Aviu [2008] KICA 3 supports the argument that the Appellant was only granted a license to occupy. Teweia’s grandmother allowed Aviu to settle on their land near the school so that Aviu’s children could easily access the school. When the grandmother died and all the children had grown up, Teweia applied for an eviction order against them. The court approved the eviction and explained that the license to occupy had expired, as evidenced by the landowners' issuance of an eviction notice.
    
24. We have analysed the parties’ argument and must agree with the Respondent. The Appellant’s mother and the Appellant himself were only granted a licence to occupy the land Teitibong 658o/2a Bikenibeu, nothing more.
    
25. Nei Titirou, the appellant’s mother, was granted permission by Taam Tonganibeia, the Respondent’s father, to live on a portion of his land, and she did so until her passing. The appellant later approached the Respondent and was also allowed to stay on the land. However, the Respondent later issued an eviction letter to the appellant, and the appellant did not deny this piece of evidence. This indicates that the permission or license to occupy given to the appellant has now ended.
    
26. The third ground of appeal relates to improvements made to the land. Section 15 (i) of the Native Lands Code states that before constructing a fishtrap, seawall, pond, pit, or niba on someone else’s land, the person intending to make the improvement must go to court only if the landowner refuses to give permission or if the value of an existing improvement will be diminished.
    
27. Section 15 (ii) When permission has been obtained to make an improvement, then it must be made and when it is complete it will be inspected by members of the court and the person who made it must again come before the court so that it can be registered in the register of native lands under his name.
    
28. Section 15 (i) of the Native Lands Code is designed for someone who plans to make improvements on land owned by another person. These individuals must first obtain permission from the landowner. They will only get the court’s permission if the landowner refuses to grant permission.
    
29. Section 15(ii) of the Native Lands Code allows the person making improvements on the land to go to court and register the improvements in their name in the Native Lands register. However, the court will only approve the registration of their name on the improvement after an inspection by court members.
    
30. We believe section 15 does not apply because there is no evidence that the requirements to obtain permission from the landowner or court for the improvements have been met. The provision above states that permission must be obtained before making improvements.
    
31. Additionally, section 15 listed the types of improvements as fishtrap, seawall, pond, and niba. The current case before us involves improvements like a permanent toilet, bathroom, and ground well. These improvements differ from those listed in this provision, but they could be recognized as improvements under this provision; however, we reserve consideration of this matter for a later time, as the provision is not relevant.
    

Outcome

32. The appeal is dismissed.
33. The ruling of the Magistrates Court of South Tarawa in Betlan 459/22 made on 27 July 2023 is upheld;
    

Order accordingly

THE HON. TETIRO SEMILOTA MAATE MOANIBA
Chief Justice

ARIAN ARINTETAAKE TEAUAMA IOTEBA
Land Appeal Magistrate Land Appeal Magistrate