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Burentarawa v Nabuaka [2022] KIHC 21; Land Appeal 5 of 2022 (26 April 2022)

JUDGMENT

1. The appeal is against the decision of the Tarawaieta Magistrates’ Court in CN 23/2020 delivered on 5 August 2020.
2. The Appellant, initially took fraud (land case) proceedings against the Respondent who is the title holder of land Tekauabanga 89a, after living on the land for more than ten years. The decision of the Tarawaieta Magistrates’ Court dismissed the Appellant’s fraud suit. There is another appeal against that decision during this court’s circuit and the judgment will be issued soon.
3. After the fraud decision, the Respondent in this appeal initiated an eviction case against the Appellant in CN 23/2020. The lower court granted the eviction which the Appellant is now contesting in her appeal.
4. As we understand it, there are two grounds relied upon by the Appellant claiming that the Magistrates were wrong in granting the eviction order.
5. The first ground is that the Magistrates erred in law in hearing the eviction case in its land jurisdiction when it should be a civil case. Ms Timeon, for the Appellant submitted that the substantive case heard in CN 23/2020 was trespass while the remedy prayed for was an eviction and that it should be heard in the lower court’s civil jurisdiction. Furthermore, she stressed that an eviction case is not governed under the Lands Code.
6. Mr Beniata, for the Respondent (appeared on papers) strongly submitted that the eviction case in CN23/2020 is a land matter involving an eviction from a native land and the court below has power to hear the case in its land’s jurisdiction.
7. Section 23 of the Magistrates Court Ordinance empowers the court to entertain land matters including “land causes and matters in accordance with the provisions of the Lands Code, or if the Code is not applicable, the local customary law, all cases concerning land (our emphasis), land boundaries, etc...”.
8. In the Appellant’s submission paragraph 9, she explained in her opening sentence that the matter initiated in the court below was in relation to an ‘eviction of my client from the land Tekauabanga 89a.’ This assertion clarify that the case brought below by the Respondent is a land case. Mr Beniata, correctly stated that the case is a land matter and should be heard by the Magistrates Court in their land’s jurisdiction.
9. In addition, the case is between two native I-Kiribati over their dispute over land Tekauabanga 89a (starting off as a fraud case until the Respondent filed for an eviction of the Appellant). The other valid argument by Mr Beniata is the fact that Ms Timeon did not argue this preliminary issue in the court below except to respond during the first calling of the case that the Appellant has a submission to make on a point of law. We agree with Mr Beniata that it is too late now for the Appellant’s counsel to raise this point.
10. In considering the relevant laws mentioned earlier, minutes, judgment and submission by counsels, it is straightforward and clear that this case is a land matter and that the court below has power to preside over it including its power to order an eviction. Ms Timeon’s submission has no merit and should fail.
11. The second ground is that the Magistrates’ Court erred in law to allow the eviction without conducting a boundary determination to assess whether the Appellant is occupying land Tekauabanga 89a (the Respondent’s land), Tekauabanga 89e or 89i.
12. Ms Timeon, submitted that during examination in the court below, the Respondent admitted that he does not know his land Tekauabanga boundaries. To this extent, she argued that a boundary determination is mandatory to ascertain whether the Appellant resides on land Tekauabanga 89a belonging to the Respondent or 89e or 89i.
13. Mr Beniata, rejected this submission claiming that it is bad law to ask for a boundary determination without having any title to land Tekauabanga. Mr Beniata, further submitted that the Appellant has no colour of right to stay on the land as they are trespassers.
14. The evidence in the court below and in the submissions of both parties shows that the Respondent is the landowner of land Tekauabanga 89a while the Appellant has no title to land Tekauabanga. Therefore, she has no locus standi or legal standing to ask for a boundary determination even though she has been living on the land for more than ten years as confirmed by Ms Timeon.
15. Ms Timeon also made submissions on her client’s claim in equity suggesting that since she has been living on the land for more than ten years, should be given a chance to determine the boundary of the land she resides on. The equity principle of ‘coming with a clean hand’ is relevant to this point. The Court of Appeal have decided in Posada v Posada [2014] KICA 6 that a person who comes to equity must come with clends.
    

“The common law principle was a narrow one that barred plaintiffs whose cause of action arose from their own serious wrongdoing ("ex turpi causa actio non r"), or serious illegality.lity.”

16. Since the Appellant’s eviction arose from her (and family) action of illegally residing on land Tekauabanga 89a, she cannot now seek for a remedy to have a boundary determination to assess if she is on the Respondent’s land or not. We are not convinced to grant her indulgence to accord her the relief that she is now seeking in the circumstances explained.
    
17. One point that should be noted during our questioning and exchange with Ms Timeon is the fact that those who allege fraud (land case) should ensure to prove their title to the land (in order to attain a right to live on the land) before moving onto the concerned land.
    
18. In our opinion, the Magistrates Court of Tarawaieta was correct to grant the eviction against the Appellant in CN 23/2020. The Appellant’s appeal has no merit and is therefore dismissed with costs. In light of this decision, the Appellant and her family are given one month to vacate the land.
19. Orders of this court:

1. The appeal has no merit and is dismissed;
2. The decision of the Magistrates Court of Tarawaieta in CN 23/2020 is upheld;

100. Costs is awarded to the Respondent to be taxed if not agreed.

4. The Appellant is given one month to vacate the land.
   

__________________________
The Hon. Abuera Uruaaba,
Commissioner of the High Court

__________________________
His worship Riteti Maninraka
Land Appeal Magistrate

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His worship Manikaoti Timeon
Land Appeal Magistrate