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Kabunare v Kabune [2025] KIHC 117; Civil Review 1 of 2023 (20 July 2025)

IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction
(South Tarawa)

HIGH COURT CIVIL REVIEW NO: 1 of 2023

BETWEEN

MAIKA KABUNARE _______________________ Applicant

AND

MAURITAAKE KABUNARE with Brothers
and Sisters ______________________________ Respondents

Date of Hearing: 5 March 2025

Appearances: Ms. Taaira Timeon for the Applicant

Ms Botika M McDermott for the Respondents

JUDGMENT

AMTEN, J. – This is a petition for certiorari to examine the proceedings in case Betlan 427/09, following the leave granted on June 5, 2024.

The parties involved in this matter are siblings. A dispute emerged regarding the ownership of Terukabane 772e/2a (hereinafter referred to as "the property"). This property was acquired in 1988 under case number 64/88 and was registered in the name of Kabunare Kabunare ("Kabunare"), who is the father of both the applicant and the respondents. Following Kabunare's passing, the title to the property was transferred to his children with his third spouse, who are the parties engaged in these proceedings. The applicant, however, contested the transfer to all parties, claiming that it should have been granted solely to him, as he financed the purchase of the property with funds he provided to Kabunare. The respondents refuted his assertion.

Ms. Taaira, who is representing the applicant, implored this court to determine that a constructive trust was formed as a result of the agreement between the applicant and Kabunare regarding the acquisition of the property. $1,000 was remitted to Kabunare to purchase the property with, which was done in CN 64/88. The agreement for the acquisition of the property and the funds remitted established a trust, Ms. Taaira argued.

Ms. Botika, who represents the respondents, asserted that such a principle cannot exist since the payment for the land originates from Kabunare himself.

The issue therefore, revolves basically around the acquisition of the property. Was it acquired as asserted by the applicant, which would imply the existence of a constructive trust, or as asserted by the respondents?

After considering the various arguments presentedand after reviewing the relevant records of CN 64/88 and Betlan 427/09, I must reject this application.

First, the foundation of the applicant’s case relies entirely on his claim that he transferred $1,000 to their father for the purchase of a property, which, presumably, resulted in the acquisition of the property in CN 64/88. Nonetheless, the records in CN 64/88 are explicit and unequivocal. Tekua Kabunare, representing Kabunare, and one of the siblings of the applicant, when she presented the purchase money to the court, she stated:

“We came today to pay the purchase price of Iabeta’s land which we pay in the sum of $1,000.” (emphasis added)

If the funds had originated from the applicant, as he claimed, it is reasonable to expect either Tekua or Kabunare to acknowledge this before the court; they did not. This silence is significant, and there is no contemporaneous evidence (letters, receipts, bank statements, etc.) adduced by the applicant in support of his assertion either. While he did submit an affidavit dated January 20th, 2023, there is no evidence to support it. Should there be an intention as claimed by the applicant, it must be corroborated by an agreement or conduct to establish a constructive trust. Lord Bridge in Lloyds Bank v. Rosset [1990] UKHL 14; [1991] 1 AC 107 reinforced this proposition when he emphasized that common intention must be reinforced by an express agreement or conduct to create a constructive trust and that mere expectation or belief is insufficient. In the case before me, one can infer that there is an expectation by the applicant to what he asserted, but that is it; nothing more.

Second, Tekua’s statement— “we came to pay”—implies collective contribution; it suggests that the funds were gathered by the family, or at least by multiple siblings, and not provided solely by the applicant. It implies that the funds were pooled together by the family, or at the very least by several siblings, rather than being provided exclusively by the applicant. This, in my view, aligns with Kiribati’s cultural norm of family-based decision-making and shared responsibility, especially in matters of land acquisition. In Gissing v. Gissing [1971] AC 881, the House of Lords held that contribution must be accompanied by inducement or agreement to establish beneficial interest. No such inducement or agreement existed in the case before me.

Third, the principles of constructive trust necessitate more than mere assertions; they require clear evidence of intention and a demonstrable contribution. I noted that the applicant failed to provide any documentation or corroborative evidence indicating that the funds he transferred to his father were intended for the property acquisition in CN 64/88. In Re Sharpe (A Bankrupt) [1980] 1 WLR 219, the court determined that a direct contribution must be acknowledged by the legal owner in order to establish a trust. In CN 64/88, Kabunare and Tekua were present in court, and one would have thought that they would have acknowledged the applicant’s direct sole contribution: that the funds were remitted by the applicant for such a purpose. Had they done so, a constructive trust would have been easily inferred; however, they did not. It therefore remains with the applicant to provide credible evidence; he did not. Unlike cases such as Twinsectra v. Yardley [2002] UKHL 12; [2002] 2 WLR 802 or Bannister v. Bannister [1948] 2 All ER 133, there is no fiduciary duty breached, no oral commitment, and no reliance or detriment proved by the applicant that would justify the imposition of a trust either. Equity cannot presume ownership based solely on subsequent claims, especially when the majority of the family members oppose it and procedural records do not support it either.

Fourth, all of his siblings contested the claim. In Jones v.Kernott [2011] UKSC 53, the Court determined that beneficial ownership should represent actual contributions and intentions, rather than retrospective claims. The applicant’s claim is deficient in both aspects as described earlier. In my opinion, this collective stance strengthens their argument, particularly in familial disputes where consensus signifies an underlying truth. Courts should exercise caution to avoid undermining this unity without substantial justification.

In conclusion, the applicant has failed to satisfy the criteria for establishing a constructive trust. There is no express agreement, no documented contribution, and no equitable basis that that would compel me to alter the existing title. Consequently, I reject this basis. Since the argument regarding natural justice relies on the presence of the constructive trust, it logically follows that there is no validity in this argument either, and I dismiss it as well. Therefore, the petition for certiorari is denied and is thus dismissed. Costs are to be borne by the respondents, to be assessed if not mutually agreed upon.

Dated this 20th of July 2025.

.................................
HON. AOMORO T. AMTEN

JUDGE