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Tamiano v Airan [2025] KIHC 40; Land Appeal 01693 of 2025 (8 July 2025)

IN THE HIGH COURT OF KIRIBATI

LAND JURISDICTION

HIGH COURT LAND APPEAL 2025-01693

Between: Tokaba Tamiano

Appellant

And: Teitirua Airan

Respondent

Date of hearing: 10 June 2025

Date of Judgment 8 July 2025

Representatives: Ms Eveata Maata for Appellant

Ms Botika Maitinnara for Respondent

__________________________________________________

JUDGMENT

Brief Facts:

1. This is an appeal against the decision of the Single Magistrate in case 2024-04264, issued on November 29, 2024.
   
2. The Respondent in the case was applying for the eviction of the Appellant and his family from their land, namely Banraeaba 758i/1a at the lagoon side of the main road. The Appellants claimed that this land originally belonged to their ancestors. Therefore, they quietly moved onto that land and settled there. At the hearing, the Appellant’s lawyer submitted that they conceded the application and were given 3 months to leave the land. The Appellants alleged that their lawyer accepted the eviction without their instruction, which led to this appeal.
   

Grounds of Appeal

3. The decision of the Single Magistrate breached the principles of natural justice by proceeding to deliver judgment on the statement of the paralegal who was quite unsure of the position of their client.
   
4. The Single Magistrate was erroneous to proceed with delivering judgment without confirming the position of the Appellants.
   
5. The Single Magistrate was incorrect in ordering the Appellants to vacate the land without considering the merits of their case.
   

Submission in support of the appeal

6. Counsel for the appellant made the following submission:
   • - The decision of the Single Magistrate was unjust because it violated the rules of natural justice by accepting and proceeding to pronounce its decision based solely on the submission of their lawyer’s associate, who was somewhat unsure about their position, saying, “Ti tabo aia kaeka kanga ana kariaia,” translation, “It looks like their response would be to agree.”
     
   • - It was wrong for the Single Magistrate to proceed with judgment without obtaining the appellant's confirmation of their position. The appellants disagreed with their lawyer’s advice, which was unfair to them.
     
   • - The Single Magistrate was erroneous to proceed with delivering judgment without hearing from the appellants, thus violating their right to natural justice.
     

Submission for the Respondents against the appeal.

7. In reply, Counsel for the respondent submits the following;
   • - The appellant was well represented by a qualified lawyer, who managed and controlled their case at every step of the court proceedings.
     
   • - Moreover, during the first court proceedings on September 18, 2024, the appellant's lawyer expressed their position to the court, indicating that they would concede to the eviction but that the appellants needed more time. The court minutes was not complete as it missed out the hearing on 18 September but the second minutes dated 29 November mentioned the following, “case resume’. This indicates that it was not the first time the case was called.
     
   • - On 29 November 2024, the appellant’s legal representative, a colleague of the one appearing for them on 18 September 2024, informed the court that her clients have the same position that they are conceding the eviction application against them; the exact words ‘Ti tabo aia kaeka kanga a na kariaia.” Counsel’s translation which is differ from the Appellant’s Counsel translation above is “Their reply is the same, that they will concede.”
     
   • - The Respondent has a valid right of ownership on the land, while the appellant resided unlawfully on the land as they do not have ownership of it, although they claimed the land belonged to their ancestors. They have received a summons from the appellant on this claim that the land was taken from their ancestor by fraud. The case is yet to be considered by the magistrate court.
     
   • - The magistrate court is not obliged to confirm the appellant’s lawyer’s submission. Natural justice is not an issue.
     
   • - They do not have a defence if the matter is remitted for rehearing, as they do not own the land.
     

Court Findings:

8. We find that the appellants lack legal rights to the land, so they cannot enter the respondent’s land without permission; that was why the respondent applied for their eviction. Although a pending case is before the magistrate court to determine their right of ownership, it is premature to claim ownership at this time.
   
9. We further find that the appellants were represented by a qualified lawyer throughout the proceedings. The lawyer had indicated their position to the magistrate court which was binding on them. The magistrate court is not obligated to confirm the parties’ position once their lawyer had formerly submitted on their behalf during the proceeding.
   
10. We agree that natural justice is irrelevant to the appellant’s circumstances as their legal representative represented their attendance throughout the proceedings.
    
11. We have checked the minutes of the proceedings and we cannot agree with Counsel for the respondent that the minutes of the proceedings on 18 September 2024 were missing. The following is the case chronology;
    
    • - 18 Sept 2024, at the Pre-trial Conference (PTC), only Counsel Maitinnara appeared; therefore, rescheduled to 26 September 2024, 10 am for PTC.
    • - 26 September 2024, at the PTC, parties in person attended. New PTC date issued- 11 October 2024, 10 am.
    • - On 11 October 2024, at the PTC, Moreti, the appellant requested that the respondent provide the minutes. Ali, for the respondent, stated that they will provide it on the next PTC date, 16 October 2024, at 10 am for PTC.
    • - 16 October 2024, at PTC, Maitinnara requested a hearing date before the magistrate court. Hearing scheduled for October 24, 2024, at 10:00 a.m.
    • - 24 October 2024, the Court clerk informed parties that the single magistrate, Tenang, was sick, so the case was adjourned.
    • - 6 November 2024, before Magistrate Court, Titabu attended, Botika overseas, so the case was adjourned to 21 November 2024.
    • - 21 November 2024, before the magistrate court, Botika attended, Titabu absent (gone to boundary determination case). Adjourned to 29 November 2024.
    • - On 29 November 2024, the case proceeded before the magistrate court. Botika attended. Moreti attended and informed the court that her clients conceded the eviction application. Eviction ordered and given 3 months to vacate the land.
      
12. The appellants claimed they did not instruct their lawyer to concede, and that is why their lawyer provided an uncertain position to the court by saying that maybe their client conceded the eviction application against them. We note the different interpretations offered by both Counsels. There may be a difference in meaning, but we believe this does not provide strong support for the appellant's appeal, as the fact remains that they do not have legal rights over the disputed land. We understand they have filed a separate case to determine their ownership, but their status will remain the same unless their case is approved by the magistrate court. Until then, the appellant does not own the land in dispute.
    

OUTCOME:

For the reasons above,

13. The appeal is not allowed. Therefore, the decision of the Single Magistrate in case 2024-04264 delivered on November 29, 2024, is reaffirmed accordingly.
    
14. Costs to the respondent to be taxed if not agreed.
    

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA

Chief Justice

TAIBO TEBAOBAO ARIAN ARINTETAAKE

Land Appeal Magistrate Land Appeal Magistrate