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Tatake v Atauea [2003] KIHC 166; Land Appeal 47 of 2001 (5 December 2003)

IN THE HIGH COURT OF KIRIBATI
LAND JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Land Appeal 47 of 2001

Between:

TABUA TATAKE & OTHERS
(REP BY TATAKE KANTERA)
Appellants

And:

KAMWEA ATAUEA
Respondent

For the Appellants: Mr Banuera Berina
For the Respondent: Mr Aomoro Amten

Date of Hearing: 5 December 2003

JUDGMENT
(Ex Tempore)

The respondents have taken proceedings to evict the appellants from a piece of land. An eviction order was made.

Mr Berina for the appellants submits that there were five co-owners of the land each having an undivided share. The land had never been physically sub-divided. So it was impossible to make an order evicting the appellants from any particular part of the land. Mr Amten argues to the contrary but we are against him. In 222/97 the Single Magistrate refers to "the share of Tokamauri and his sister" in the land. This is confirmed in 399/97 which sets out the family tree, shewing five children of N. Tonia who had been the owner: on her death, the land was subdivided between her five children of whom Tokammauri was one and their uncle Ianoman: half of the land was shared undivided by her children.

It follows that the order of the Single Magistrate cannot stand. The Court was unable to evict the appellants from their undivided half share of the land.

The appeal is allowed and the order of the Single Magistrate quashed.

THE HON ROBIN MILLHOUSE QC
Chief Justice

BETERO KAITANGARE
Magistrate

RARATU IEITA
Magistrate