IN THE HIGH COURT OF KIRIBATI 2019

HIGH COURT CIVIL CASE 55 OF 2017

		[LAMA LATASI					APPLICANT
		[
BETWEEN	[AND
		[
		[CHAIRMAN BETIO AREA COMMITTEE		1ST RESPONDENT
		[NEI REE TAIBI					2ND RESPONDENT

Before:	The Hon Chief Justice Sir John Muria

6 June 2019

Ms Kiata Kabure for the Applicant
Mr Monoo Mweretaka for the 1st Respondent
Ms Taoing Taoaba for the 2nd Respondent

JUDGMENT

Muria, CJ:	The applicant’s application is for declaration and consequential orders under O.58 r2 of the High Court (Civil Procedure) Rules 1964.  The dispute is over the land Temanoku 823 w/1 and in particular houseplot No. 12.

Brief background

2.	The brief background to the case started with one Nei Rounamakin who originally owned the land Temanoku 823, in Betio.  Nei Rounamakin in Case Number 60/50, transferred the land Temanoku 823 to her two children, namely her son Tenoa, half of the land replotted as Temanoku 823 w/1 and the other half replotted as Temanoku 823 w/2 to her daughter Nei Etita.  Tanoa was the second respondent’s grandfather while Nei Etita was the applicant’s grandmother.

3.	In 1957, Tenoa Kaunano (second respondent’s grandfather) leased his entire land Temanoku 823 w/1 to the Government of Kiribati.  See Lease Agreement dated 13th March 1957.  The Lease was made to take effect from 
1 January 1954.

4.	Later in Case Number 52/69, Nei Takai (the second respondent’s mother) gave her consent to the Catholic Church to construct buildings on the land Temanoku 823 w/1.  Then in Case Number 55/69, the second respondent’s mother sold the land Temanoku 823 w/1, the second respondent’s land to 
Father Martin for the Catholic Church.  The land was said to have been transferred by Fr Martin to the Catholic Church in Case Number 121/69.

5.	Despite the transfer of the land Temanoku 823 w/1 to the Catholic Church, the second respondents are still living on the land without any hindrance from the Church or Government.  A plot was said to have been allocated to them (second respondents) on the said land where she and her family are residing on with no bother from the Church or Government.  [That plot was said to be Number 20 given on 24 December 1955].

6.	The applicant’s portion of the land Temanoku 823 w/2 was also said to be leased by the Government.  As such the applicant was also given plot of land to live on Temanoku 823 w/2.  The applicant’s houseplot is number 12 given on 
3 February 1959.

7.	It must also be accepted as a fact on the evidence before the Court that the second respondent’s land Temanoku 823 w/1 had been given to the Catholic Church.  In Case 212/85, the Catholic Church exchanged its plot of land which include the houseplot where the second respondents are said to be residing on with the applicant’s grandmother.  This virtually resulted in the second respondents no longer entitled to remain in the plot that they were residing.

8.	The applicant who has not sold her houseplot 823 w/2 to anybody, now has houseplot 823 w/1 as well, as a result of the exchange with the Catholic Church.

Issues

9.	The central issue in this dispute is whether the second respondents has any houseplot in Temanoku 823 w/2 left after their land transactions with the Catholic Church.  The second issue is to determine the status of houseplots numbers 12 and 20.  The third issue is to determine whether the correctness of the decision of the first respondent to include the second respondent’s houseplot (if any) onto the applicant’s plot of land.

Determination

10.	The argument advanced by the applicant is that the second respondents do not have any houseplot left in Temanoku 823 w/1 having sold their entire land to the Catholic Church.  This argument must be correct as evidenced by the combined effect of Case Numbers 52/69, 55/69, 121/69 and 78/73.

11.	The status of the second respondent over Temanoku land is plainly obvious on the evidence before the Courts throughout the history of the disputes between the parties over the land.  They leased their land Temanoku 823 w/1 to the Government on 13 March 1957 with effect from 1 January 1954.  By Case Number 52/69 the second respondents consented to the Catholic Church to construct buildings on their land Temanoku 823 w/1.  Then by Case Number 55/69 the second respondents sold their entire land Temanoku 823 w/1 to 
Fr Martin for the Catholic Church.  Fr Martin then transferred the land to the Catholic Church in Case Number 121/69.

12.	The second respondents claim that they continued to reside on the land without hindrance from the Catholic Church.  If that was so, then their occupation was really as tenants-at-will which meant that their occupation was at the good-will of the owner (Catholic Church) and nothing more.  If the owner told them to leave the land they must leave since they had no right to remain on the land.

13.	Then in Case Number 212/85 (78/73) (82/85), the Catholic Church exchanged its land in Temanoku 823 w/1 with the claimant’s land on the ocean side.  Consequently, the claimant became the legal owner of the land 
Temanoku 823 w/1 and Temanoku 823 w/2 on the lagoon side.  The evidence contained in the letter of the Chief Lands Officer dated 15 August 1991  on “Land Temanoku 823 w/1 and 823 w/2” also supports the applicant’s claim that houseplots 823 w/1 and 823 w/2, Temanoku, are legally owned by the applicant.

14.	The second respondents, therefore, no longer have any houseplot in Temanoku 823 w/1.  Both houseplots 823 w/1 and 823 w/2, Temanoku, are in the registered name of the applicant.

Houseplot Nos 12 and 20

15.	Ms Taoaba of Counsel for the second respondents argued that the houseplot number in dispute is No. 20 and that it is on the same land Temanoku that both the applicant and respondents are residing on.  The fallacy in that argument is that the second respondents, having sold their land to the Catholic Church, do not have any houseplot in either Temanoku 823 w/1 or 823 w/2.  Only the applicant has houseplots in Temanoku 823 w/2 and later in 823 w/1.  The Houseplot given to the applicant is Houseplot Number 12 and not 20.  See “LL-8”.

16.	This is consistent with decision of the Area Committee made on 
6 September 1997 that as the second respondents had sold their land to the Catholic Church, they must apply for a new houseplot.  However, as noted by the Magistrates’ Court in Case Bailan 1041/16, there was no evidence that any application was made nor a decision had been made in that regard.

17.	Instead, the present Area Committee in its meeting on 15 March 2016 simply decided to designate houseplot number 20, had it situated on Temanoku, and divided it in half between the applicant and second respondents.  The creation of houseplot 20 inside Temanoku 823 w/1 and 823 w/2 by the first respondent was clearly wrong in the light of the history of the second respondents’ land.  The only houseplot belonging to the applicant alone in Temanoku 823 w/1 and 823 w/2 is Houseplot No. 12.

18.	It is therefore not surprising that, as the Magistrates’ Court found in Case Bailan 1041/16, the houseplot No. 20 as shown on the map “is located far away from Houseplot No. 12”.  It was found to be quite some distance away measuring the distance as from St Patrick’s College to the Nonouti Maneaba in Betio.

19.	Thus to place houseplot No. 20 onto the applicant’s land at Temanoku was in effect a means to legitimize the continued occupation by the second respondents of the land which they sold to the Catholic Church and later transferred by the Catholic Church to the applicant having exchanged it with her land on the ocean side of the road.

20.	As I have already pointed out, the first respondent’s decision to place Houseplot 20 onto the applicant’s land was wrong.  Mr Mweretaka relied on section 33 of the Local Government Act which Counsel argued, gave power to the first respondent to allocate and manage houseplots to the parties.

21.	Section33 of the Local Government Act is not authority for the first respondent to create a houseplot and have it inserted onto a person’s land without following the proper procedure of ascertaining why there was one houseplot No. 20 in the names of two people (the applicant and respondent)?  Secondly, the first respondent failed to consider the fact that any claim by the second respondents of having houseplot No. 20 in Temanoku 823 w/1 was no longer possible since they sold all their land interest in Temanoku 823 w/1 to the Catholic Church and now transferred to the applicant.  Section 33 cannot be used to resurrect what has long been lost.

22.	On the evidence before the Court and in particular the cases referred to, in this judgment, it is conclusively established that the second respondent had sold their plot of land in Temanoku 823 w/1 to the Catholic Church.  Consequently the second respondents ceased to have any legal interest in the said plot of land.

23.	The Catholic Church transferred its plot Temanoku 823 w/1 to the applicant in exchange for her land on the ocean side.  The applicant is now the registered owner of plots 823 w/1 and 823 w/2.

24.	The applicant’s houseplot is No. 12.  The Houseplot No. 20 cannot be located in the applicant’s plots of land.  If that houseplot (Houseplot 20) exists, it must be at a location outside of the applicant’s plots of land (Temanoku 823 w/2 and 823 w/1).

25.	The second respondents do not have houseplot No. 20 on the same plots of land as the applicants.  It would therefore be wrong for the first respondent to force upon the applicant to accept the existence of houseplot No. 20 on her land, just to accommodate the second respondents’ need for a houseplot to reside on.  That cannot be right.

26.	The first respondent does not have the power under section 33 of the Local Government Act to simply plot a houseplot number 20 and insert it on the applicant’s plot of land without going through the proper procedure of ascertaining the location of the houseplot number on the map before allocating it to the second respondents.  That was not done in the present case.  The exercise of its power under section 33 in this case cannot be sanctioned by the Court.

27.	The consequence of the decision of the first respondent to include Houseplot No. 20 on the applicant’s land is effectively to permit the second respondents to reside on the same plot of land which they had already parted with by selling it to the Catholic Church and now transferred to the applicant.  To accept the first respondent’s practice adopted in this case is substantively and procedurely not legally proper.

28.	The more acceptable course to take would be as suggested in section 17 of the Native Lands Code and the cases Tiba –v- Takabwebwe [1996] KIHC 153 188, namely to secure an agreement between the applicant (owner of the houseplots) and the second respondents who are seeking to have occupancy of the houseplot.  The process of putting someone else onto a landowner’s land cannot be forced upon the landowner.

Conclusion

29.	The evidence before the Court is overwhelmingly in favour of the applicant’s case which must succeed.  The next matter to consider is the nature of the orders to be made.

30.	There is a claim for damages in the declaration sought.  I feel a claim for damages would not be appropriate in the present case.  The reason being that while the applicant has succeeded in establishing that the first respondent had breached its statutory duty to properly consider the issue of allocating houseplots in this case, the applicant has not shown that such a breach has caused foreseeable loss to him.

31.	For all the above reasons, the applicant’s application must succeed and I feel the appropriate declarations to be granted are:

1.	The first respondent’s action in placing the second respondents purported houseplot No. 20 to be included in the applicant’s plots of Temanoku 823 w/1 and Temanoku 823 w/2 was not lawful and therefore null and void.

2.	For the avoidance of doubt, the applicant’s houseplot is Houseplot No. 12;

3.	There is no houseplot No. 20 in Temanoku 823 w/1 and Temanoku 
823 w/2;

4.	Costs to the applicant to be taxed if not agreed.

Dated the 20th day of September 2019

SIR JOHN MURIA
Chief Justice