Home | Databases | WorldLII | Search | Feedback Court of Appeal of Kiribati

Wiauea v Rui [2025] KICA 1; Civil Appeal 5 of 2024 (14 March 2025)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

LAND APPEAL NO. 5 OF 2024

BETWEEN

TEETA WIAUEA
Appellant

AND

ARAWATAU RUI
BATAEA RUI
TERABWENA RUI
BAMATOA RUI
TEREAKI TEAOREREI
Respondents

Before: Sir Gibbs, JA

Nelson, JA

Khan, JA

Date of Hearing: 12 December 2024

Date of Judgement: 14 March 2025

APPEARANCES:
Counsel for the Appellant: T Timeon
Counsel for the Respondents: T Ruaia

JUDGMENT BY THE COURT

INTRODUCTION

1. This appeal is from the judgement of the High Court in its land jurisdiction which reviewed the decision of the Magistrates Court in case number 650/2022 (650/22) to deregister the respondents mother’s death and register themselves as her next of kin over land Bangantebure 689i/2e/2. This land was owned by the appellant and his two sisters one of whom was the respondent’s mother.
   
2. The respondents appeared before the Magistrates Court in 650/22 and made an ex parte application for the deregistration of their mother’s name and for the registration of themselves as her next of kin.
   
3. The appellant felt aggrieved that he was not invited to attend the hearing in the Magistrates Court and made an application to the High Court to review the decision of the Magistrates Court under the provisions of section 81 of the Magistrates Court Ordinance.
   
4. The High Court after hearing submissions essentially made two findings:
   
   1. That there was no need for the appellant to be invited to attend the hearing in the Magistrates Court as his interest was not adversely affected.
      
   2. That the rule of “survivorship” does not apply to the land system in Kiribati.
      

APPEAL

5. The appellant filed an appeal and the only ground of appeal is:
   

Erroneous in law – failed to take into consideration that the appellant at the time of the transfer of the land Bangantebure 689i/2e/2 to the respondent in case number Betlan 650/2022 was the only surviving land-owner of this land after the deceased sister Bunnana, mother of the respondents. Since he was the owner of the land at the time of the transfer a person interested in that land pursuant to section 81 of the Magistrates’ Courts Ordinance his argument in connection with the fact that he was the only surviving land-owner and the land in question had not been distributed before the passing of Bunnana, the respondents had nothing to inherent from the deceased mother under the rule of survivorship. This argument was not properly addressed before the Magistrate’s Court in Case Number Betlan 650/2022 because he was not served by the respondents when they appeared in court to transfer the same to them so a breach of natural justice was not properly observed.

SUBMISSIONS

6. The appellant submits that he was an interested party within the provisions of section 81 of the Magistrates Court Ordinance and should have been invited by the Magistrates Court to attend the hearing; and that if he was invited to attend the hearing, he would have raised the legal issue of “survivorship” as the sole surviving brother.
   
7. The respondents submitted that there was no need to invite the appellant as the order made by the Magistrates Court did not have the “potential” of affecting his interest and that the rule of “survivorship” does not apply to land in Kiribati.
   

CONSIDERATION

8. We shall outline the relevant parts of section 81 in order to determine the powers of the High Court when conducting a review of Magistrates Court decisions.
   
9. The extent and operation of Section 81 was extensively discussed by this court in Atanta v Tabaua^[1] at [12] - [17] where it was stated as follows:
   

“[12] Section 81(1), (3) and (4) of the Magistrates’ Court Ordinance provides:

81. (1) 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.

(3) In the case of any suit, civil cause or matter the High Court may –

• (a) set aside any judgment, decision or order made by the magistrates’ court and substitute any judgment or order which ought to have been made;
  
• (b) direct the magistrates’ court which gave the judgment or direction or made the order, or any other magistrates’ court, to take further evidence either generally or on some particular point, and in the meantime order the stay of any proceedings for the execution of any judgment or order;
  
• (c) set aside the judgment and order a retrial before the magistrates’ court which heard and determined the proceedings in question or any other magistrates’ court; or
  
• (d) make any other order as justice may require and give all necessary and consequential directions:
  

Provided always when a party shall have appealed against any judgment or order under the provisions of this Ordinance relating to appeals, the High Court shall not exercise the powers conferred by this subsection.

(4) The powers conferred by this section shall not be exercised in respect of any case after the expiration of 12 months from the date of the passing of the sentence or the giving of judgment, order or decision terminating the proceedings in such case in the magistrates’ court, and in respect of which the High Court shall not up to then have taken any action.

[13] We are satisfied that these provisions do not supersede the High Court’s prerogative powers. Our reasons follow.

[14] The starting point is the Constitution of Kiribati. Section 89(1) of the Constitution confirms the prerogative powers one would expect of a superior court to supervise the proceedings of an inferior court. It provides:

89. (1) The High Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court.

[15] Section 89(1) of the Constitution is not subject to any time limit. Powerful reasons would be needed before diminishing the constitutional duty of the High Court to supervise the proceedings of subordinate courts. A time limit would represent a diminution of that power.

[16] The second point is that s 2 of the Constitution provides that the Constitution is the supreme law of Kiribati and that if any other law is inconsistent with the Constitution that other law is, to the extent of the inconsistency, void. For reasons we will come to shortly, we do not see any inconsistency between recognising the Court’s supervisory powers without time limit, on the one hand, and recognising a distinct jurisdiction under s 81 of the Magistrates’ Court Ordinance, which is subject to a time limit, on the other. But if there were thought to be any inconsistency, the Constitution would plainly take priority.

[17] The third point is that the s 81 review jurisdiction conferred by the Magistrates’ Court Ordinance is an enabling provision. It confers powers on the High Court which it would not otherwise have. Section 81(1) gives the High Court the power to judicially review on its own motion. The Court does not have to wait for a petition or application from some interested person. There is no prerogative equivalent to that power. Section 81(1) also authorises the High Court to exercise all the powers, authority and jurisdiction of the Magistrates’ Court. There is no prerogative equivalent to that power either. In the Magistrates’ Courts Ordinance Parliament has seen fit to confer additional powers which the High Court would not have had if reliant solely upon prerogative powers. But it does not follow that by giving the High Court additional powers, Parliament intended to take away those prerogative powers which it would have had in any event.”

10. The appellant complains that he was not invited to attend the hearing in the Magistrates Court and thus was precluded from raising the issue of the principle of “survivorship”.
    
11. There was no need for the appellant to attend the Magistrates Court to raise the issue of the principle of “survivorship”. As is apparent from the above, he raised that issue in the High Court as section 81(1) allows the High Court “to exercise all the powers, authority and jurisdiction of the Magistrates Court”: para [17] of Atanta v Tabaua.
    
12. The Land Court judgement addressed the issue of “survivorship” and stated that in light of the provisions of section 11 of the Native Land Ordinance the question of survivorship is irrelevant and does not apply.
    
13. The respondents counsel in her submission stated that the principle of “survivorship” is only applicable to “joint tenancies” and the land system in Kiribati is “co-owners” – more like tenants in common but in undivided shares and therefore the principle of “survivorship” does not apply.
    
14. She further submitted that the legal title to land is only created upon registration in the Register and she relied on the case of The Attorney General of the Republic of Kiribati v Ngatau^[2] where it is stated at [20] as follows:
    

[20] Before proceeding further we would summarise the history of the land from a legal perspective as follows:

The Native Lands Register created under s 64 of the Magistrates' Court Ordinance was and is the sole record of legal title to native land. Interests in native land derived from succession, purchase, or court order, remain mere equitable interests unless and until entered on that Register. (Emphasis added)

15. The respondents’ counsel further submitted that when the respondents appeared before the Magistrates Court all they did was to deregister their mother’s name and had themselves registered as her next of kin and in the process of doing so the appellant’s interest was not affected. His interest in the land remained the same before their appearance in the Magistrates Court and after their appearance in the Magistrates Court and therefore there was no need for him to be invited to attend the hearing in the Magistrates Court.
    
16. Like the High Court, we agree with the submissions of the respondent’s counsel that there was no need for the appellant to be invited to attend the Magistrates Court hearing and we further agree that in the absence of clear and express words purporting to create a joint tenancy type of arrangement, the principle of “survivorship” is not applicable to the land system in Kiribati.
    

RESULT

17. The appeal is dismissed.
    
18. We order the appellant to pay the respondents costs to be taxed if not agreed.
    

DATED this day of 2025

^[1] [2005] KICA; Land Appeal 01 of 2005 (8 August 2005)
^[2] [2010] KICA 6; Civil Appeal 08 of 2010 (a8 August 2010)