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Tekaai v Kaue [2025] KIHC 68; Land Review 03218 of 2025 (15 October 2025)

IN THE HIGH COURT OF KIRIBATI
LAND JURISDICTION

High Court Land Review No 2025- 03218

BETWEEN: Nei Tibe Tekaai for the minor Darius Kaere
Applicant

AND: Iotia Kaue, Beretiani Bwaririeta for Raete Tibwere

First Respondent

AND: Ntarie Maria

Second Respondent

Date of Hearing: 28 August 2025

Date of Judgment: 15 October 2025

Appearances: Mr Banuera Berina for the Applicant
Ms Maere Kirata for the 1st Respondent

Mr Titabu Tabane for the 2nd Respondent

JUDGMENT

1. Brief Fact:

This is an application for a judicial review of the decision in case 2024-02749 regarding the sale of a portion of land in Antemai by the second respondent to the first respondent, and to have the name of Raete Tibwere, who was Iotia Kaue's mother, registered on it.

2. Relief

The applicant is asking for the following orders;

a) an order granting her leave to apply for certiorari against the decisions of Betio in case number 2024-02749, delivered on October 14, 2024.

b) an order quashing a decision in the said case.

c) Such further order or orders which this honorable court deems.

d) Cost.

3. Grounds of appeal lodged by the Applicant against the decision in 2024- 02749

a) The hearing was conducted without the knowledge of the applicant who looks after the interest of the child Darius. As the biological child of the second respondent, the second respondent could not sell the land without the consent of her child or without ensuring that the child is left with sufficient land.

b) That the interest of the child Darius was not taken into account is a clear breach of the rules of natural justice and a breach of the Native Lands Code.

4. Applicant’s Position

a) The hearing was attended only by the first and second respondents. The second respondent is the biological mother of Darius Kaere, the minor whom the applicant represented. The second respondent owned the land in question, Antemai 769 ae/1m/2, and sold it to the first respondent. The applicant, Nei Tibe, lives next to the second respondent on this land with the minor, Darius Kaere. She had tried to intervene in the sale of the land and even offered to buy it from the second respondent. The sale closed in October 2024 without the applicant’s knowledge.

b) The applicant claims that the second respondent is aware of her interest in opposing the sale of the land; therefore, the second respondent should have informed her about the court hearing regarding the sale. Counsel referred to the case of Tebanna v Tebanna [2021] KICA 8; Land Appeal 4 of 2019 (1 December 2021) to support their point that natural justice had been breached when the applicant was not invited to the sale of land proceedings. Counsel argues that the decision was obtained irregularly because the applicant, as the child's caretaker, was not notified of the hearing.

c) Section 14 of the Native Lands Code regarding the sale of property requires the consent of the owner’s next-of-kin before the court can approve the sale. Counsel further argues that the minutes of the proceedings show that this was the last piece of land of the second respondent.

D) Counsel also raises that the court approved the sale without adhering to section 14 because no evidence, such as a certificate of ownership from the second respondent, was presented to show the list of lands remaining for the next of kin after the sale of this land. This supports the argument that the decision was irregular. The applicant argues that the certificate of ownership attached to the second respondent’s affidavit was obtained after the proceedings for the sale of the land and, therefore, should not be considered, as the evidence presented at the magistrate's court hearing is what matters. The applicant, through Counsel, submits that the magistrate court was unaware of the number of children the second respondent had and the number and size of lands remaining at the time of the sale. Even the certificate of ownership she shows now cannot indicate the sizes of the lands, as the lands are owned in common with others.

5. First Respondents’ Position

a) The first respondent submits that they are aware that the second respondent owns more land. They have also asked the second respondent to make arrangements with the applicant before they move onto the land.

b) Counsel argues that the sale was consistent with section 4 of the Native Lands Code, which allows the landowner to have complete control of their property as long as there is enough land remaining for their children.

c) Counsel submits that the magistrate court did consider the issue of sufficient land remaining for the landowner’s children before approving the land sale. Although the second respondent was not yet registered as an owner of her mother’s land at the time of the sale, she is effectively one of the co-owners of those lands.

d) On the second page of the minutes, the magistrate court asked the second respondent whether she has enough land left for her children, and she replied, “Yes, but not yet registered as our unaine is registered.”

e) Counsel also cited the case of Tebanna v Tebanna, where the father died and the issues were unaware of the hearing. They used to live on the disputed land, which was the only land left for them. Compared to the current case, other lands are available, and the second respondent, as the mother of the child Darius, is responsible for her children's welfare.

6. Second Respondent’s Position

a) Counsel submits that the applicant claims to act in the best interest of the child, Darius, but she has no legal relationship with him. While it may be true that she cares for the child, the second respondent is, in fact, the biological mother. Counsel argues that the applicant did not adopt the child, so she has no legal standing in this case.

b) Counsel further states that the applicant claims the case is for the child’s benefit, but in reality, it is for her own benefit because she has an interest in the land. She and her husband are living on the land, and they even offered to buy it from the second respondent. The second respondent also lives on the same land as them.

c) Counsel states that it is not true that the second respondent has no other lands left for her children. The court minutes in CN 2025-03246 show that she owns several other lands, enough for her five children, including Darius. Therefore, there is no reason to refer the matter to the lower court for rehearing, as it can now be proven that she owns several other lands.

D) Counsel further stated that natural justice is not an issue. The applicant lacks locus standi because she does not have a legal relationship with the child, Darius. The second respondent is the biological mother of Darius and is responsible for all her children, including Darius.

7. Court Analysis

Ground One: The hearing was held without the knowledge of the applicant, who is responsible for the interests of the child Darius. As the biological child of the second respondent, the second respondent could not sell the land without the child's consent or without ensuring that the child is left with sufficient land.

1. The relevant provisions cited by the parties are sections 4 and 14 of the Native Lands Code.
   

Section 4 states as follows;

“ Distribution of an estate and gifts inter vivos

4. (i) An owner’s order disposing of his property during his lifetime may be allowed by the court if it complies with this Lands Code. The owner's order will only be altered or overruled-

(a) if any of his issue or next-of-kin who are not guilty of neglect would thereby be left in hardship, but if they have been guilty of neglect then the order will not be stopped because of any resulting hardship (See Section 2); or

(b) if the shares of his next-of-kin are thereby grossly unfair.

(ii) The court shall first enquire into the opinion of the other children or next-of-kin of the-owner before approving such a distribution or gift.

(iii) A parent may not take back a dowry granted to a daughter on her marriage unless it is proved that the daughter has been guilty of neglect or if insufficient land remains for the support of children born to the parent, subsequently to the gift.

Section 14 is also quoted below for ease of reference;

“Sale of property

14. An owner may sell a land, a pit or a fishpond if his next-of-kin agree and the court, having considered the matter, approve. Before reaching its decision the court should first consider if the lands remaining to the owner after the sale are sufficient for him and his children.”

2. From the court minutes, we confirm that the applicant was not present, so her views or position on the issue of the sale of a portion of Antemai were not considered. However, we agree with the respondents’ point that the applicant has no legal relationship with the child to raise such a case for Darius- she did not have the locus standi to initiate this case.
   

100. The magistrate court relied on and concurred with the biological mother’s evidence and her intention to sell the land, knowing she had lawful authority to do so as a landowner. Although this was the only land registered in her name at that time, the magistrate court was satisfied when she said she had sufficient lands left for her children, which included Darius as one of her children.
     

4. Although the evidence of the second respondent’s ownership of several lands (in CN 2025-03246) shown to the court now may be late since her registration was obtained after the land sale hearing, what matters is that there is current proof that she owns multiple lands.
   
5. Paragraph 5 of the second respondent’s affidavit shows that she owns nine other parcels of land from her mother, Maria Nakabuta. It was clear in the magistrate court’s decision in CN 2025-03246 that these nine lands will be divided into six shares, and Ntarie Marae, the second respondent in the case before us, has one of those six shares. This indicates that the second respondent holds shares in these nine lands, which are to be divided among six shares, meaning her five children will also have rights to shares from these nine lands.
   
6. Based on the above, we concur with counsel for the second and first respondent that the second respondent still owns enough land after selling a portion of Antemai to support her five children, including Darius. Therefore, we agree that rehearing the case in the magistrate court solely on this issue would be pointless, as it would lead to the same conclusion.
   

Second ground: The fact that the interest of the child Darius was not considered clearly violates the rules of natural justice and breaches the Native Lands Code.

7. This ground was established to reflect the applicant’s role as the caregiver of the minor Darius. However, this does not diminish or override the biological mother’s authority and rights over her child. Darius’s well-being and best interests cannot be fully evaluated while the applicant lacks the legal standing to represent the child in her caregiver role, unlike the biological mother. As previously stated, the applicant has no legal relationship with Darius and therefore lacks standing. Consequently, we find that Darius’s interests are best represented by the biological mother, who is the second respondent. The second respondent has considered her children’s interests, even though the applicant claims otherwise.
   
8. This was confirmed by the biological mother’s testimony in the magistrate court, where she stated that she has enough land remaining for her livelihood and her children. The learned Single Magistrate relied on this evidence to approve the land sale. Therefore, Darius's interests were considered, as he is the child of the landowner, and there is no evidence to suggest that the fundamental principles of natural justice were violated.
   
9. We find no error in the Single Magistrate Court’s decision. This ground of review is also rejected.
   

8. Court Finding

a) As the two grounds of review fail, leave for judicial review is refused.

b) Orders;

1. Judicial review is not allowed
2. Single Magistrate decision is upheld
3. The applicant is to pay costs to the respondents to be agreed upon or taxed.
   

THE HON. TETIRO SEMILOTA MAATE MOANIBA
Chief Justice

TEAUAMA IOTEBA TABAKITOA TEMOKOU
Land Appeal Magistrate Land Appeal Magistrate