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Kautu v Taun [2023] KIHC 25; High Court Land Review 2 of 2021 (22 September 2023)

IN THE HIGH COURT OF KIRIBATI

High Court Land Review 2 of 2021

JUDGMENT

Introduction

1. This is a review of a decision of the Single Magistrate in case number BD 86/18 dated 16 November 2020 on the boundary determination of plot Antebuka 835 a/2e belonging to the petitioners.
   
2. Mamau Taake subleases Antebuka 835 a/2e. In BD 86/18, Mamau Taake (the applicant, now the respondent) applied for land boundary determination of Antebuka 835 a/2e (Betio). The respondents in case number 86/18 were Ioane Taun, representing Tebuto Timeon and others. The Single Magistrate decided to confirm the boundaries of the Land Surveyor. This land survey and boundaries are illustrated in a sketch or map, also submitted to the Single Magistrate.
   
3. The appellants are not happy with the decision of the Single Magistrate because they are landowners and were not represented in that case. In BD 86/18, the respondents were Ioane Taun, representing Tebuto Timeon and others. Ioane Taun in BD 86/18 did not accept the boundaries of the Lands Surveyor.
   
4. In BD 86/18, the name Tiribu Kautu was not indicated on the list of respondents, yet the judgment mentioned her name as one of the main witnesses as a landowner. As one of the main witnesses, Tiribu Kautu disagreed with the boundaries of the Land Surveyor. She has the same view as Ioane Taun and pointed out the correct boundaries. So, this court believes that even though the name Tiribu Kautu was not shown as a party in BD 86/18, she was with Ioane Taun in court to represent the voice of disagreement with the boundaries of the Lands Surveyor.
   
5. This court relies on its review powers under section 81 of the Magistrates’ Court Ordinance. Section 81(1) says, “The High Court may, either of its own motion or on the petition of any person interested therein, call for the record of any case before a magistrates' court and, either without seeing such record or after hearing argument as it may determine, exercise in the case of any criminal proceedings or in the case of any suit, civil cause or matter the powers conferred by subsections (2) and (3)respectively and in the exercise of such powers it shall have all the powers, authority and jurisdiction vested in the magistrates' court which dealt with or determined the case under review.”.
   

GROUNDS FOR REVIEW

6. The petitioners are applying for a review of a decision of the Single Magistrate because a decision was made in the absence of the other interested parties or landowners.
   
7. What is meant by other interested parties or landowners when it says “Ioane Taun representing Tebuto Timeon and others” should be clarified by the court documents. For instance, Tiribu Kautu’s name was not shown as a party on the judgment case number 86/18, but in the court minutes and judgment, she was one of the main parties giving evidence in court before the Single Magistrate. In case number 86/18, only two eventual representations or voices by the landowners are expected to be heard by the court. Those landowners who agree with the Lands Surveyor's boundaries or those who disagree. The representation that landowners disagree with the boundaries is the most important voice to be heard by the court. Ioane Taun and Tiribu Kautu represented that voice in BD 86/18. If it is true that some landowners were not present in court that day, their interest was represented – that is, they disagreed with the boundary of the Land Surveyor. The Single Magistrate has heard the representation and decided to abide by the boundaries of the Lands Surveyor.
   
8. The petitioners’ argument is supported by the case of Tebanna v Tebanna [2021] KICA 8. This court is of the view that by fact, Tebanna’s case has no relevance to the case at hand. Tebanna’s case is an Ex-Parte proceeding. Ex parte Proceedings require that the adverse party be given minimal notice and an opportunity to respond. Even though the case at hand and Tebanna’s case differ in fact, this court agrees that ex-parte proceedings must not be encouraged in land cases because it defeats the principle of natural justice or the right to hear the adverse party.
   
9. In BD 86/18, it is essential to note that Ioane Taun, Tebuto Timeon, Tiribu Tebuto and the rest of the applicants co-owned the plot Antebuka 835-o/3. Mamau Taake owned Antebuka 835-a/2e. The adverse party was well represented by a lawyer and Ioane Taun, representing Tebuto Timeon and others. The adverse party in BD 86/18 was also represented by Tiribu Kautu. In this review case, Tiribu Kautu represented the interest of the other applicants as deposed in her affidavit. It is crucial to remember that in the court below, Tiribu Tebuto has the same position as Ioane Taun in that they disagree with the boundaries fixed by the Land Surveyor, and the lower court did not accept their position. More importantly, there is no doubt that the voice of the adverse party that disagreed with the boundaries of the Land Surveyor was represented and heard by the Single Magistrate.
   

Conclusion

10. For the reasons stated above, the review is not required, and the decision of the Single Magistrate in case number 86/18, dated 16 November 2020, is upheld.
    
11. Cost is awarded to the Second Respondent to be taxed if not agreed.
    

ORDER accordingly.

HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice