IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 106 OF 2014

BETWEEN:		
TEETI RINEAKI MTMM
Applicants

AND:			
TEREITA RINEAKI MM
1ST Respondent

AND:			
RINEIETA TEBEIA
2ND Respondent

AND:			
TEBAU ROBUTI
3RD Respondent

Date of Hearing:			29 DECEMBER 2022
Date of Judgment:			16 JANUARY 2023

Appearances:				Ms Batitea Takanito for the Applicants
                                                             Ms Taoing Taoaba for the Respondents

JUDGMENT

A brief fact of the case;

This is an application to seek leave to apply for a writ of certiorari to have the Magistrate Court decision in case number 373/99 brought before this court for the purpose of it being quashed. 

The subject matter before the magistrate court in 373/99 was about the distribution of the lease money which was registered under the deceased Nabuti Rineaki mtmm (with brothers and sisters). Nabuti’s father had two spouses and Nabuti came from the first spouse and there are four of them. There are eight issues from the second spouse. 

For the sake of clarity, the applicants and first respondents are half brothers and sisters from the same father Rineaki. The applicants are issues of the second spouse and the first respondents are the issues of the first spouse. The second respondent is the wife of Nabuti Rineaki, the eldest son of Rineaki or eldest sibling of the applicants and first respondents. The third respondent is the relative of Nabuti Rineaki who also wanted him to have a share from the land rents.  

When the case came before the magistrate court in case number 373/99 the rents was totalled to $1767.66. The parties to that case were the full brothers and sisters of Nabuti Rineaki only. On the 31st August 1999, the magistrate court allowed a distribution between the parties (Nabuti’s full brothers and sisters) and Nabuti’s wife (Rineieta Tebeia), one Tebau Robuti and also a share to the issues of the second spouse, there was a total of seven shares as follows:
-	$150 Tebau Robuti
-	$373.29 Nabuti Rineaki (share from his mother)
-	$230.40 Nabuti Rineaki (share to be given to his wife Rineieta)
-	$230.47 Tereita Rineaki
-	$230.40 Ieru Rineaki
-	$230.40 Iekimwa Kaetiraoi with brothers and sisters (Children of Kaetiraoi Rineaki)
-	$322.99 (water reservoir rent) to the issues of second spouse of Rineaki namely Teeti Rineaki mtmm (with brothers and sisters).

Also from the minute of 373/99, it was stated by the full brothers and sisters of Nabuti that the money came from the leased lands owned by their father (Rineaki) and their mother (first spouse).

The applicants are not happy with the decision of the magistrate court in 373/99. In 2014 they tried to challenge this decision before a magistrate court in Betlan 1064/14 but that court rightly dismissed their application. They were not parties to the case 373/99 hence their application now is for judicial review.

On 6 November 2017, the High Court granted them leave to extend time to apply for leave to issue certiorari proceedings. On 29 December 2022, this Court heard submissions on the application for leave to issue certiorari proceedings.

The applicants’ main argument is that they also own the leased lands together with Nabuti Rineaki and his full brothers and sisters through their same father Rineaki therefore they also have the rights to be heard by the magistrate court in 373/99 when the land rents were distributed. The applicants were not summoned to the court proceedings in 373/99 and they never knew about it until 2010 when the applicant, Teeti Rineaki, realised that the land rent was not only given to the children of Rineaki but also to the wife of their oldest brother Nabuti Rineaki and one other person (Tebau Robuti) who are not their siblings. 

The respondents, on the other hand, claimed that the distribution done in case number 373/99 concerned only the shares of their mother, the first spouse and their father Rineaki. It has nothing to do with the shares of the applicants’ mother, the second spouse. Their position is that the shares of the issues through their different spouses have long been made and followed during the lifetime of Nabuti Rineaki. The applicants opposed this argument and stated that the distribution made in 373/99 was the first and only distribution done in regards to the shares of the two spouses. That there was no formal distribution made in any court of law before the 373/99 case.

Court’s analysis and ruling:

After careful consideration of all supporting documents, affidavits, written and verbal submissions by Counsels of both parties, this Court agrees with the position put forward by the applicants for the following reasons;

a)	The record of case number 373/99 clearly shows that the distribution of the land rents also concerns the shares of Rineaki, the father of the applicants and the first respondents in the present case. The purpose of the case in 373/99 was to distribute the land rents registered under Nabuti Rineaki with brothers and sisters. The case was between the issues of the first spouse only who are the first respondents in the present case. Nabuti Rineaki was the issue of the first spouse. The applicant in 373/99 was his full sister namely Tereita Rineaki who represented her full brothers and sisters. The sworn statement of Tereita Rineaki quoted here from 373/99 supported the finding that the land rents also belong to their common father Rineaki; “Nabuti Rineaki has passed away. We wanted to distribute the land rents registered under his name which belonged to Rineaki and our mother in the amount of $1767.66…”

Since the land rents also belong to Rineaki, all children of Rineaki who are the applicants and the first respondents in the present case should have a say in the matter.

b)	The minutes of 373/99 went further to show the continuation of Tereita’s statement regarding the distribution as follows; “… that $322.99 for the water reservoir goes to the issues of the second spouse and the balance is $1444.67.” 
This indicates that the case 373/99 also determined the share of the issues of the second spouse, the applicants in this present case without their presence. The magistrate court should have summoned them so that they have a say in the amount to be given to them through their mother (second spouse).

c)	The minutes continued further as follows;
“From this amount we give $150 to Tebau Robuti as his share. 
And the balance of $1294.67, the amount of $373.29 is to be given to Nabuti as his share from his mother and the balance of $921.38 is to be shared among the four of us.
1.	Nabuti (his share to be given to his wife Rineieta)
2.	Tereita Rineaki
3.	Ieru Rineaki
4.	Iekimwa Kaetiraoi with brothers and sisters to be given to Nei Taoriti Evi in Funafuti)”

The magistrate court allowed the distribution of the land rents following the suggestions of Tereita Rineaki as shown in the quoted texts below;
	“The application to distribute the land rents registered under Nabuti Rineaki mtmm (with brothers and sisters) in the amount of $1444.67 is to be shared as follows;
i)$150 Tebau Robuti
ii)$373.29 Nabuti (share from his mother)
iii)230.40 Nabuti Rineaki (wife of Rineaki to take this)
iv)$230.47 Tereita Rineaki
v)$230.40 Ieru Rineaki
vi)$230.40 Iekima Kaetiraoi mtmm, to be given to Nei Taeriti Evi in Funafuti
vii)$322.99 (water reservoir land rent) to be given to the issues of the second spouse namely Nei Teeti Rineaki mtmm.”

This Court noted that if you add up the shares the total is $1767.95 which is different from $1444.67, the amount stated in the text above to be distributed. There may be an error in the recording however this will not change the fact that the magistrate court had made a distribution which also determined the share of the issues of the first spouse without their presence.

d)	The submission that the shares of the issues through the first and second spouses had long been made and followed during the lifetime of Nabuti Rineaki must fail as there is no formal court minutes to support it. The respondents submitted that Betlan 1060/14 supported their point as it shows that the applicants knew about this existing shares hence their application in Betlan 1060/14 to try to cancel that share arrangement. The applicant submitted that the shares that was referred to in Betlan 1060/14 were the shares fixed in 373/99. This Court agrees with the applicants. There may be an informal arrangement of the shares but there was no court minute to support this. Case number 373/99n is the only minutes available to this present court to show the share distribution.

e)	There was also raised a confusing issue during the hearing about the amount of land rents which differs in the two magistrate court minutes, being $1767.66 in 373/99 and $5770 in Betlan 1060/14. The increase may be due to the increase in land rents over the years as stated by the applicants or that the small amount in 373/99 was the share of the first spouse only as submitted by the respondents. However, there was no supporting evidence for the first argument and the latter is also not convincing as the minutes of 373/99 clearly indicated that the amount included the shares of Rineaki, the father of the applicants and first respondents and that the distribution also determined the shares of the applicants’ mother (second spouse). 

f)	There was also an argument raised by the respondent that the distribution made in 373/99 was done in accordance with the will of Nabuti Rineaki, this was disputed by the applicant as there was no mention of the will in the court minutes of 373/99 in which this Court agrees.

ORDER

For the above reasons, this Court finds that the applicants have the right to be heard when the distribution was made in case 373/99 therefore leave to issue certiorari proceedings is granted. 

Normally, the substantive certiorari proceedings should now be issued and set down for hearing but there was also an application made by Counsel for the applicants for this Court to consider the substantive proceedings at the same time when leave is considered. This had been the practice in the High Court for certiorari proceedings in order to avoid the multiplicity of the proceedings. See Tabora v Uruatarawa and Another [2009] KICA 9; Office of the Attorney General in respect of Director of Lands ministry of Environment and Lands Agriculture v Anterea Kaitaake, Toawea Rawarawa and Abemama Magistrates’ Court, Civil Review 11 of 2018. 

This Court is prepared to deal with certiorari application now since there is overwhelming evidence to justify making the order of certiorari sought by the applicants. Leave has been granted and certiorari is also granted ordering the decision of the magistrate court in 373/99 to be brought into this Court for the purpose of it being quashed.

Order accordingly with cost to the applicants to be taxed if not agreed.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice