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Attorney General iro Director of Lands v Timote [2023] KIHC 12; Civil Case 61 of 2015 (22 June 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 61 OF 2015

BETWEEN:
ATTORNEY GENERAL iro DIRECTOR OF LANDS Applicants

AND:
DIXON TIMOTE
1^ST Respondent

AND:
PERSONS UNKNOWN
2^ND Respondent

Date of Hearing: 24 MAY 2023
Date of Judgment: 22 JUNE 2023

Appearances: Mr. Monoo Mweretaka for the Applicants
Ms. Taoing Taoaba for the Respondents

JUDGMENT

Introduction

1. This is an application to recover possession of parts of the land Tebue 811u that the respondents occupy pursuant to section 3(1) of the Squatters (Recovery of Lands) Act 2005.
   
2. Section 3(1) is quoted below;

“Any person who claims possession of land which he/she alleges is occupied by a person who entered into or remained in occupation without his/her license or consent, or that of any predecessor in title, may make application to the Court to recover passion of the land.”

3. It is not disputed that the Government has leased the land in question for 99 years since 1961; therefore, it still has 37 years of exclusive rights over this land under the lease agreement. The respondent moved onto the land in 2012. Before this, the respondent consulted the Lands Office and was advised to get the landowner’s consent to support his sublease application. After obtaining this consent, the respondent started developing the land. No written sublease agreement had been issued at this point.
   

Parties’ Position

4. The applicant referred this court to section 10(1) of the Native Lands Ordinance, which states that a lease or sublease of native land, other than a native lease, shall require the approval of the Minister. They admitted that the respondent had filed his application for a sublease, but the minister’s approval had not been issued. They have also sent eviction letters to the respondent, who remains on the land.
   
5. The respondent, on the other hand, argued that they moved onto the land after getting the approval of the landowner in support of their sublease. Over time since they moved onto the land, they had also visited two ministers responsible for the Lands Office regarding their sublease application and were assured that there would be no problem. The first visit was in 2013 after they received the first eviction letter from the Lands Office.
   
6. The respondent claimed they had obtained a license or consent from the Lands Ministers when they visited them and was assured that since he had received the landowner’s consent, there would be no problem with his sublease application.
   
7. This court was referred to the case of AG iro Director of Lands v Kariti Timotee and Others [2011] KIHC 49 in support of the applicant’s case. The respondent argued that this case was irrelevant as the respondent in that case was evicted because he stayed at the wrong place.
   
8. Annexures 2(1), 2(2), 2(3), 2(4), and 3 are copies of the eviction letters sent to the respondent. The earliest was dated 24^th September 2012, followed by another eviction letter dated 28^th March 2013. Another one dated 8^th April 2013, the fourth eviction letter dated 15^th May 2013, followed by the eviction letter from the Office of the Attorney General dated 5^th September 2013.
   
9. The applicant argued that there must be a formal written approval, the sublease agreement, for the respondent to reside on the land. A mere assurance from the ministers did not count.
   

Court’s Analysis

10. After considering both arguments, it is clear that the respondent resided on the land sometime in 2012; he also received the first eviction letter in 2012. He also received several eviction letters after that in 2013.
    
11. The applicant approached the ministers responsible for the Lands Office regarding his sublease application, and the first minister said he would look into the matter. The second minister ordered the Lands Officers to mark out the area the applicant applied for, but this never happened when the landowner’s consent was missing. This evidence is stated in the respondent’s affidavit.
    
12. In 2015, the applicant filed this case against the respondent to recover possession of the land occupied by the respondent.
    
13. Section 3(1) of the Squatters (Recovery of Lands) Act 2005 requires the consent or license of the person possessing the land for one to occupy that land; otherwise, the person having possession could claim for recovery of possession of their land.
    
14. The respondent’s basis for staying on the land was because of his sublease application in which he claimed to have obtained the license or consent from the actions or assurances of the ministers responsible.
    
15. As stated above, the sublease processes are dealt with under a different law, section 10(1) of the Native Lands Ordinance, which requires the minister’s approval.
    
16. Considering the evidence stated in paragraphs 7 and 9 of the respondent’s affidavit, this court is of the view that the ministers did not give firm consent or license to the respondent for his sublease approval. As mentioned in paragraph 10 above, the first minister only assured that he would look into the matter while the second ordered the area to be marked, but this never happened. These could not be considered licenses or consents per se.
    

Summary

17. In light of the above, the following decision is reached;
    1. the application is granted,
    2. the applicant can recover possession of parts of the land Tebue 811u that the respondents occupy,
    100. the respondents must surrender possession.
         
18. Cost is awarded to the applicant, to be taxed if not agreed.
    

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice