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Kautuntarawa v Reverend Kirata [2025] KICA 4; Civil Appeal 7 of 2024 (20 March 2025)

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

LAND APPEAL NO. 7 OF 2024

BETWEEN

KAUTU KAUTUNTARAWA
KITAAKE KAUTUNTARAWA
MAIKIATA TUTU
NEI KAUTU TETEKI
Appellants

AND

REVEREND BARANITE KIRATA, TRUSTEE
FOR THE KIRIBATI PROTESTANT CHURCH (KPC
TIBERETI)
Respondent

Before: Sir Salika, JA

Nelson, JA

Khan, JA

Date of Hearing: 10 December 2024

Date of Judgement: 20 March 2025

Case to be referred as: Kautuntarawa v Reverend Kirata

APPEARANCES:

Counsel for the Appellants: T Timeon
Counsel for the Respondent: B Berina

JUDGMENT BY THE COURT

INTRODUCTION

1. On 25 January 2002 The respondent obtained a sublease from the Government of Kiribati over the land called Temoaniwae 825a and Tebukinnatu 824i which is described as Lot BE 565 located in Betio, Tarawa.The appellant and his siblings are the owners of both lands.
   
2. The appellant went on to the subleased land in May 2023 and took possession of the Maneaba (meeting house).
   
3. As soon as the appellant took possession of the Maneaba the respondents counsel was in contact with the appellants counsel and gave her a copy of the High Court review judgment in Action Number 12 of 2007 in which the appellant was a named respondent; and in which the order for eviction against the respondent was quashed.
   
4. On 5 June 2023, the respondent filed an application under section 3 of the Squatters (Recovery of Land) Act 2005 (the Act) to evict the appellants from the land.
   
5. After the application was served on the respondent the first named respondent Kautu Kautuntarawa filed a response on 24 July 2023 claiming that the respondent did not have the locus standi to file the application under the Act; disputed that the land was subleased by the Government, and that the process of filing the application under the Act was incorrect and, that the correct process was for the respondent to file a writ of summons.
   
6. The respondent filed a special case under Order 37 rule 2 of the High Court Civil Procedure Rules 1964 seeking a preliminary ruling as to whether the application by the respondent was competent.
   
7. The application was heard by Semilota ACJ and she informed the parties that she will not deal with this special case application separately and heard the case together with the application. She granted the application and made an order that the respondent was entitled to obtain possession of the subleased land where the Maneaba and other properties were located.
   

APPEAL

8. The appellants were not happy with the decision of Semilota ACJ and filed an appeal. The grounds of appeal are as follows:
   
   1. The decision of the High Court in allowing the applicant to recover possession of the sublease of the Maneaba and other properties were located and the respondent said the possession of the land was error in law because of the following reasons:
      
      1. The alleged land was the subject of an eviction proceedings before the High Court was a subleased land from the Government to a separate sublease agreement as asserted by them. The respondent used section 3 of the Squatters (Recovery of Land) Act 2005 to recover possession of the land when this Act allows only Government as a competent person to have locus standi (legal standing) to bring the recovery possession of Government leased land but silent on subleased land pursuant to the definition of “land” in section 2 of the Squatters (Recovery of Land) Act 2005. The respondent did not have locus standi (legal standing) to bring recovery possession of the subleased land pursuant to section 3 of the same Act as it was the Republic who was authorised to initiate the recovery of the leased land in order for the action to be competent under the law, it must be instituted in the name of the Republic but not in an individual as in the present case of the respondent.
         
      2. The decision that the land in question was subleased was against the weight of the evidence that the land, Tubukinnatu 824i, portion of it was worth the money but was located and in occupation by the appellants was not leased by the Government.
         
      100. The decision was given in favour of the respondent without giving the opportunity to the appellant to cross examine the witness of the respondent on his affidavit and the documentary evidence annexed to the affidavit. The respondent was not proceed with his side so that the appellant can be able to cross examine his witness and without evidence tendered in Court it was not safe for the Court to conclude a decision by weighing the evidence of the respondent that were not properly tendered and adduced in Court.
           
9. At the hearing of the matter before Semolita ACJ the respondent’s counsel asked the appellant to be cross examined and the appellant’s counsel called the appellant as a witness, and he adopted his affidavit which he had filed in response and was subsequently cross examined by a Mr Berina. A copy of the transcript was made available to us at the hearing of this matter but for some unknown reason it was not included in the Appeal Record Book.
   
10. The transcript of the proceedings does not have the page numbers so it is difficult for us to make exact references to the pages and paragraphs, however, we shall refer to the following questions and answers in the cross examination of the respondent:
    

Q: In paragraph 2 of that letter, you see this High Court from letter “Iia motin te bowi ae ea tia nnakon n te Case Number TTT 146/06 r kam na riai lia n kamwawa abaia taan ababa, Teniua te namakaina”.

A: Yes.

Q: So now I think we can agree that the letter was written on your behalf to my client Tibereti Group requiring them to leave the land because of that judgment in that case, yes?

A: No.

Q: Yes, sorry perhaps you’re misunderstood, you will agree with me Kautu that your lawyer told my client to leave that land which is your land because there is a judgment that has been delivered in Case Number TTT 146/06?

A: Yes.

Q: And then I as the lawyer for Tibereti respondent to your letter to your lawyer’s letter, do you know that?

A: Yes, I know.

Q: Your Honor, I am now referring to the email I wrote to my learned friend, it is exhibit ‘C’ to my client affidavit. In my email to your lawyer, I informed her that the decision you relying on to ask my client to leave has been quashed by the High Court in High Court Land Review 12 of 2007?

A: Yes, I believe that.

Q: Yes, now according from my instructions, which instructions I conveyed to your lawyer by my email, as soon as you entered the Maneaba, as soon as you entered the place of my client, you were given a copy of the judgment in HCLR 12 of 2007 isn’t that correct?

A: They given to me 3 or 4 days after.

Q: Okay, perhaps it was 3 or 4 days later, but you were given a copy of High Court HCLR 12 of 2007.

A: Yes.

Q: So in the judgment you will agree the decision of the Magistrates Court evicting the Tibereti Group from your land was quashed by the High Court?

A: Yes.

Q: The reason why it was quashed by the High Court was because it was accepted in the High Court given by your lawyer Mr Tibwa that this land is leased by the Government?

A: Yes, that’s correct.

Q: Now Kautu the Maneaba that you have entered is still the same Maneaba that you evicted the applicant from Tibereti Group from, isn’t it?

A: Yes.

Q: With the judgment of the High Court in HCLR 12/2007, you must accept Kautu that the land is leased by the Government. The place where the Maneaba is located is leased by the Government?

A: No.

Q: Well did you file an appeal against the decision of the High Court Land Review 12 of 2007, did you file an appeal against the decision?

A: It’s just this one.

SUBMISSIONS

11. The appellants’ main contention is that the subject land was subleased by the Government and the respondent did not have the locus standi to file the application for vacant possession; that the application should have been filed by the Republic, and the respondents could have filed a writ of summons but not the application under the Act.
    
12. As to the other two grounds of appeal, the appellants submits that the respondents should have called evidence; and should have called the deponent of the affidavit Mamau Taake to tender his affidavit and having failed to do so there was no evidence before the court. That having failed to call Mamau Taake the appellants were denied the opportunity to cross examine him and were unable to put their case to him.
    
13. That the judgment was unsafe as there was no evidence to support the findings.
    
14. Mr Berina submitted that the court made a finding that the land was subleased to the respondent and that the land was still leased by the Republic and that it came within the ambit of section 2 of the Act and the definition of “land”. He further submitted that it also fell within the provisions of section 3 of the Act where it states “...any person...” and that the respondent was a sublessee and therefore had the necessary locus standi to file the application.
    
15. Mr Berina also submitted that the affidavit evidence of Mamau Taake was not challenged and that the court rightly relied on it and the judgment in the High Court in the High Court Review Action Case Number 12 of 2007. He further submitted that the respondents counsel never made an application to cross examine Mamau Taake and if an application were made then he would have made him available for cross examination.
    

CONSIDERATION

16. The Maneaba in question has been the subject of an ongoing proceeding since 2006 in the Magistrates Court Action Number TTT 146/06 the appellants were successful in obtaining an eviction order against the respondent which was subsequently quashed by the High Court in Land Review Number 12 of 2007. The appellant agrees that it was the same Maneaba that he obtained an eviction order against the respondent. The High Court made a finding “...the eviction proceedings are only in relation to 824i. Kautu has no standing to evict the applicant from 824i because the Government is the lessee of it”. The orders made in action number 12 of 2007 were binding on the appellant and instead of complying with those orders he trespassed on to the land 824i and took occupation of the Maneaba. The appellant’s action was in complete defiance of those court orders and he continued to defy the court orders which forced the respondents to commence proceedings under the Act and the applicants continued to defy the court orders by defending the application.
    

SQUATTERS (RECOVERY OF LAND) ACT 2005

17. Section 2 of the Act defines “land” to mean land owned or leased by the Republic.
    

CIVIL PROCEEDINGS

CLAIM FOR RECOVERY OF LAND

18. Section 3 provides:
    
    1. Any person who claims possession of land which he or she alleges is occupied where a person who entered into or remains in occupation without his or her license or consent, or that of any predecessor in title, may make application to the Court to recover possession of the land.
       
    2. Any application made under subsection (1) shall be accompanied by an affidavit of the applicant stating –
       
       1. The applicant’s interest in the land; and
          
       2. The circumstances in which the land has been occupied.
          
    3. The application and the affidavit referred to in subsection (2) shall be prepared and filed in both English and Kiribati language.
       

PROCEEDINGS

19. Section 7 states how the proceedings are to be conducted. It provides:
    
    1. If on the date specified in the notice issued under section 4 the respondent fails to appear then, upon proof to the satisfaction of the Court of the due service of such notice, the Court may order the applicant recover possession of the land.
       
    2. If the respondent appears, the Court may proceed to hear and determine the matter or may set the case for hearing on a later date.
       
    3. Where the case is set for hearing on a later date, the Court may give such directions as to the further conduct of the proceedings as it deems appropriate.
       
    4. If on the hearing of the matter the Court is satisfied that the applicant is entitled to possession of the land as against the respondent it shall order the applicant recover the possession of the land, but otherwise it shall refuse the application.
       
    5. An order for possession may require that the respondent surrender possession forthwith, or at such later time as the Court deems appropriate.
       
    6. An order for possession may include an order that the respondent refrain from re-entering the land the subject of the order.
       

ENFORCEMENT

20. Section 8 provides:
    

An order for possession made under this Act may be enforced under the Rules of the Court, save that the leave of the Court need not be obtained prior to the issue of writ of possession.

REGULATIONS

21. Section 14 provides that:
    

“Beretitenti, acting in accordance with the advice of the Cabinet, may make the regulations prescribing matter necessary or convenient for carrying out or giving effect to this Act.”

22. We stated in Ioptebwa v Abiang Island Council Civil Case Number 3 of 2023 that explanatory notes do not form part of the legislation, however, it could be used for the purposes of obtaining a better understanding of the context of a legislation. The House of Lords in R v Montilla and others^[1] stated at [34],[35] and [36] as follows:
    

[34] The question then is whether headings and side notes, although unamendable, can be considered in construing a provision in an Act of Parliament. Account must, of course, be taken of the fact that these components were included in the Bill not for debate but for ease of reference. This indicates that less weight can be attached to them than to the parts of the Act that are open for consideration and debate in Parliament. But it is another matter to be required by a rule of law to disregard them altogether. One cannot ignore the fact that the headings and side notes are included on the face of the Bill throughout its passage through the Legislature. They are there for guidance. They provide the context for an examination of those parts of the Bill that are open for debate. Subject, of course, to the fact that they are unamendable, they ought to be open to consideration as part of the enactment when it reaches the statute book.

[35] There is a further point that can be made. In Pickstone v Freemans Plc [1988] UKHL 2; [1989] AC 66, 127 Lord Oliver of Aylmerton said that the explanatory note attached to a statutory instrument, although it was not of course part of the instrument, could be used to identify the mischief which it was attempting to remedy: see also Westminster City Council v Haywood (No 2) [1999] EWHC 272; [2000] 2 All ER 634, 645, para 19 per Lightman J. In Coventry and Solihull Waste Disposal Co Ltd v Russell [1999] UKHL 49; [1999] 1 WLR 2093, 2103, it was said that an explanatory note may be referred to as an aid to construction where the statutory instrument to which it is attached is ambiguous. In R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38; [2002] 1 WLR 2956, 2959B-C, Lord Steyn said that, in so far as the Explanatory Notes that since 1999 have accompanied a Bill on its introduction and are updated during the Parliamentary process cast light on the objective setting or contextual scene of the statute and the mischief at which it is aimed, such materials are always admissible aids to construction. It has become common practice for their Lordships to ask to be shown the Explanatory Notes when issues are raised about the meaning of words used in an enactment.

[36] The headings and side notes are as much part of the contextual scene as these materials, and there is no logical reason why they should be treated differently. That the law has moved in this direction should occasion no surprise. As Lord Steyn said in that case, at p 2958, the starting point is that language in all legal texts conveys meaning according to the circumstances in which it was used

23. The explanatory notes state that there has been an ongoing problem of people occupying land without authority in South Tarawa and particularly on land leased to the Government. The procedure for obtaining orders for possession is modelled on former Order 113 of the Supreme Court of the United Kingdom and preliminary steps have been reduced. It is stated in the Supreme Court Practice 1997 on pages 1653 and 1654 as follows:
    

Scope of the Order – the Order does not provide a new remedy but rather a new procedure for the recovery of possession of land which is in wrongful occupation by trespassers. Its machinery designed to overcome the apparent shortcoming of the present procedural law in two respects, namely:

1. by providing the procedure for claiming possession of land where not every wrongful occupier can be reasonably identified, the order overcome the question whether an order for possession can be made and enforced in an ex parte proceedings in which no person is named as a defendant ...
   
2. by shortening the steps and the time for obtaining a final order for possession of land, the Order overcomes the question whether such an Order can be made on an interlocutory application or only by way of a final judgment or order (see Manchester Corporation v Connelly [1970] Ch.420; [1971] All E.R. 961, C.A.)
   

At page 1654 it is stated as follows:

For the particular circumstances and remedy described in r. 1, this Order provides a somewhat exceptional procedure, which is an amalgam of other procedures, e.g, procedure by ex parte originating summons, default procedures and the procedure for summary judgment under O.14. Its machinery is summary, simple and speedy, i.e. it is intended to operate without plenary trial involving the oral examination of witnesses and with minimum of delay, expense and technicality.

24. The Act applies to land owned or leased by the Republic. Section 3 provides that “any person who claims possession of land ... without his or her consent” and in our view that extends to an organization (like the respondent) or individuals persons and we hold that the respondent had the locus standi to file the proceedings and there was no need for the Republic to be joined as a party.
    
25. The entire proceedings are summary in nature and therefore the court was correct in not dealing with the special case application on the issue of locus standi separately. All that an applicant has to do under the Act is to file an application which is to be accompanied by an affidavit stating that the applicant’s interest in the land and an order can be made on that basis alone without the need to call any evidence. There is no need for the applicants to call the deponent of the affidavit as a witness to tender it, however, the Court is vested with the power to give directions and may do so where it deems appropriate. In this matter the respondents quite rightly asked for the appellant to be made available for cross examination. The respondent’s Chairman Mamau Taake was also present in Court when the application was heard, and no application was made by the appellants counsel for his cross examination.
    
26. In this matter the evidence of the respondent was very strong and compelling, and the Court was justified in making the orders against the appellant.
    
27. In the circumstances the appeal has no merit and is dismissed with costs awarded to the respondent to be taxed if not agreed.
    

DATED this 20 day of March 2025

Sir Salika, JA Nelson, JA Khan, JA

^[1] [2004] UK House of Lords 50