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Tutu v Tetoa [2025] KIHC 38; Land Review 03001 of 2024 (3 July 2025)

IN THE HIGH COURT OF KIRIBATI
LAND JURISDICTION

HIGH COURT LAND REVIEW 2024-03001

BETWEEN: BAIA ERIA TUTU
Applicant

AND: MERE TETOA MK TETOA TOKANIKAI KOTUA MTMM

MATIA TAUNGEA MT MK TENGAO

Respondents

Date of Hearing: 27 May 2025
Date of Judgment: 3 July 2025

Appearances: Ms Elsie Karakaua for the Applicant Mr Titabu Tabane for the Respondents

JUDGMENT

BRIEF BACKGROUND

1. This is an application for judicial review of the Magistrate Court's decision in Betlan 27/23, brought by the Applicant.
   
2. Case Betlan 27/23 involves the registration of titles on the four family land plots: Atanga 698e, Tebue 732e/1a, Tebanga 717m/1, and Bukintekua 723e/1a. The registration followed the decision in case 28/04, where the elders of the applicants and respondents were registered for these lands. After their deaths, the respondents went to court to register ownership.
   
3. The registration was approved for Kabua Tabora and issues of Matou Tabora and Nikaro Tabora, Mere Tetoa and issues of Rinan Tetoa, Tokanikai Kotua with brothers and sisters, Matia Taungea with his brother, and the issues of Tengao to be jointly registered on the four lands.
   
4. The applicant is the daughter of Matou Tabora. She and other children of Matou Tabora, who felt aggrieved by the decision, sought a judicial review to overturn the decision in case Betlan 27/23, citing the following grounds.
   

GROUNDS FOR REVIEW

5. The respondents were either plaintiff or defendant parties in the Magistrate proceeding in Betlan 27/23.
   
6. In Betlan 27/23, they named the applicant as the plaintiff but failed to have her authority to proceed with the hearing.
   
7. The applicant is an issue of the late Matou Tabora.
   
8. The applicant, although properly named as a plaintiff in the proceedings, Betlan 27/23, should have been informed and had the right to appear.
   
9. Thus, the applicant did not convey any right to the plaintiffs to appear and make submissions on her behalf, even though her late mother had rectified ownership of the land Bukintekua 723e/1 at Eita in the Court of Appeal Case 4 of 2009.
   
10. As she was not given the opportunity to appear in court, she lost the chance to claim ownership of Bukintekua 723e/1a.
    

APPLICANT COUNSEL’S SUBMISSION

11. Due to a lack of notification about her court proceedings while she was in the Cook Islands, the applicant was denied the chance to present her case. In the proceedings of Betlan 27/23, the applicant was deemed to be involved as she is one of the issues of Matou Tabora, who was also named a party in Betlan 27/23 as ‘kn Matou Tabora’ translation ‘Issues of Matou Tabora.’
    
12. The applicant was not aware of this registration case at the time, as she was in the Cook Islands. As a result, she was denied her fundamental right to due process. If she had attended the court hearing, she could have submitted her case for the registration of Bukintekua, as this land was not meant to be transferred to others. Without her mother's efforts to reclaim this family land when it was sold to a third party, as shown in the case of Tabora v Uruatarawa [2009] KICA 9, the family would have lost ownership of this land. Her mother invested her time and resources in pursuing this case through legal proceedings.
    
13. The applicant states that after her mother regained the land Bukintekua, they went to court to register their names on it. This was done in Betlan 387/16 when the magistrate court decided to allocate Bukintekua to the applicant’s mother and her sister as their father's share, Tabora, since he was the eldest among his siblings. The registration also reflects the late Matou’s effort to regain the family land, Bukintekua, which was once sold to a third party without the family's consent.
    
14. According to the applicant, if she had attended the Betlan 27/23 proceeding, she would have informed the magistrate court of the decision in Betlan 387/16, which establishes their ownership of this land, Bukintekua, and the magistrate court would have ruled in their favor.
    
15. Counsel for the applicant relied on the following cases in support of their arguments;
    
    • - Akoi v Kakiaman [2003] KIHC 206; Land Review 05 of 2002 (8 October 2003). The applicant was not summoned to the proceeding. She had an interest in the land in question; therefore, the magistrate court decision was quashed and a retrial was ordered, whereby all interested parties must be invited.
      
    • - Kietau v Korere [2021] KIHC 27; Land Review 8 of 2020 (7 June 2021). The applicant was one of the interested parties but was not invited to the proceeding. The respondents conceded that he should have been invited, as he was also entitled to a share of their late father's estate. The court granted the review, and the case was remitted to the magistrate court for rehearing.
      
    • - Tebenea v Kaotan [2005] KIHC 9; Land Appeal 42 of 2003 (11 February 2005). The applicant applied for a review of the magistrate court's decision, as it had created a new boundary mark that was inconsistent with the boundary marks established by another magistrate court. This other case was not known to the Single Magistrate, which caused him to make a different boundary. The High Court mentioned that one court cannot overrule the decision of another court of the same jurisdiction. The boundary fixed was quashed.

SUBMISSION FOR THE RESPONDENT

16. Objecting to the application, the Respondent asserts that there is nothing wrong with the decision of 27/23 because the applicant was registered on all four lands along with them.

17. Had the case been about land distribution and the applicant had been excluded, this would constitute a breach of natural justice that would justify quashing the land distribution case.

18. Case Betlan 27/23 was a family registration case that aimed to deregister the previous landowners who had passed away and to register their successors, who are the applicants and respondents. This was intended to follow the registration done in case 28/04.
    
19. If the applicant claims sole ownership of Bukintekua, excluding other family members, there are other landowners living in Fiji, the Solomon Islands, and here in Kiribati whose views must also be taken into account.
    

Court’s Analysis and Findings

20. Having considered the submissions, it is well established that the case Betlan 27/23 concerned the deregistration of the names of the deceased landowners and their replacement with the names of their issues. The registration concerns the four family lands, namely Atanga 698e, Tebue 732e/1a, Tebanga 717m/1, and Bukintekua 723e/1a. The decision was that all the issues of the previous landowners are registered as co-owners of the four lands.
    
    21. The applicant disagreed with the registration because they had been registered solely on the land, Bukintekua 723e/1a, in another case, Betlan 387/16, which was decided before this registration case, Betlan 27/23. This case was not brought to the attention of the magistrate in Betlan 27/23. The applicant argued that she could have informed the magistrate of this case, but she was unable to do so, as she was not invited to the proceeding.
        
    22. We do not accept the argument that, even though the applicant was not informed of her case, it makes no difference since she was still registered as a co-owner on the four lands.
        
23. We agree with the applicant that since she was not invited, the magistrate court in case 28/04 had no knowledge of their registration over the land Bukintekua. A court cannot overrule the decision of another court of similar jurisdiction.
    
24. We find that a breach of natural justice has occurred in the proceedings of Betlan 27/23.
    

ORDERS OF THE COURT

25. Based on the court’s findings, judicial review is granted. The decision of Betlan 27/23 is hereby quashed.
    
26. As requested by the applicant, the matter is remitted back to the magistrate court for rehearing. All interested parties must be invited.
    
27. Cost to the applicant, as agreed by the parties, or taxed if no agreement is reached.
    

HON. TETIRO MAATE SEMILOTA MOANIBA

Chief Justice

TEAUAMA IOTEBA TABAKITOA TEMOKOU

Land Appeal Magistrate Land Appeal Magistrate