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Moone v Moutu [2023] KIHC 30; Civil Review 29 of 2019 (13 October 2023)

IN THE HIGH COURT OF KIRIBATI

High Court Civil Review 29 of 2019

JUDGMENT

Introduction

1. This is a review of a decision of the Single Magistrate in case number Biklan 587/17 dated 27 July 2017 on the registration of the Respondents after Tekabu Tetonganga over the land Teabanaine 810e located in Takoronga Betio.
   
2. The application was filed late on 8 November 2019. On 11 August this year (2023), the first and second Applicants were heard on their application to extend the time to apply for leave for an order of certiorari. At the end of their submissions, the Respondents, through Counsel, said they are not objecting to extending time. An extension of time was then granted, and the case was listed again for hearing of the application for leave on 17 August.
   

Ground for judicial review

3. Only one ground for review is filed as quoted below;

-The magistrate court of South Tarawa erred in law in proceeding to hear an application for the transfer of land title belonging to an issueless owner, Tekabu Tetonganga, to the Respondents without enquiring about other issues of Tekabu Tetonganga, who are the first and second Applicants who were not invited as interested parties and are beneficial owners of the land belonging to an issueless owner Tekabu Tetonganga. Taketi is the brother of Tekabu, and the children of Taketi are Nei Kaia, Nei Tetera, and Tekabaia. Only issues of Tekabaia were presented before the Court.

Submissions and Court Analysis

4. The Applicants are applying for a review of a decision of the Single Magistrate because a decision was made in their absence as interested parties. They alleged that the principle of natural justice was breached in Betlan 587/17; therefore, the decision should be quashed.
   
5. The Applicants claimed they are one family with the Respondents as all are descendants of Tetonganga, the son of Tekabu Tetonganga. Tetonganga had three children namely Taketi, Katuroroa and Tekabu. Taketi was the only one with children, three of them, namely Nei Kaia, Nei Tetera, and Tekabaia. The first named Applicants descended from Nei Kaia, the second named Applicants from Nei Tetera, and the Respondents from Tekabaia.
   
6. Before 2017, the land in dispute, Tebanaine 810e, was registered under a different person, but by case number Betlan 44/17, this land was returned to Tekabu as the rightful owner of the land. The proceeding of Betlan 44/17 was between Bureimoa Moutu and Others v Tekaue Atanimatang and Others.
   
7. Conflicting submissions were made regarding the case of Betlan 44/17. The Applicants claimed they were together with the Respondents in Betlan 44/17 as parties when they joined efforts to regain their ancestor’s land. On the other hand, the Respondents submitted they were the only Applicants in Betlan 44/17, and it was all their effort that they managed to get their ancestor’s land back. They also claimed that the Applicants were unrelated to them and that the genealogy they brought forward in this case was incorrect. On this basis, they denied the claim by the Applicants that they should be invited to the proceedings of Betlan 587/17 when the Respondents registered themselves over this disputed land.
   
8. At the hearing, I asked parties to submit to this court the minutes of Betlan 44/17 for two reasons: to confirm the Applicant's and Respondents' facts, whether or not they were parties in that case, and to confirm the genealogy. I received only the copy of the judgment, no minutes. Therefore, I could not verify their genealogy. I also could not confirm if the Applicants were plaintiffs in this case as the names stated are not completed, only ‘Bureimoa Moutu and Others’
   
9. What is meant by ‘Others’ or other interested parties? The court documents should clarify ‘Bureimoa Motu and Others’, but there was no clarification in the judgment. Therefore, we can only speculate whether or not the Applicants may be included in the ‘Others.’ Still, there is evidence by the Applicants that the Respondents did not challenge that they used to have meetings with the Respondents in preparation for their case Betlan 44/17. They also submitted that when they won their case, Betlan 44/17, they waited for another meeting with the Respondents, but there was no meeting, and they found out that the Respondents had already registered themselves over the land without them.
   
10. Because of the above evidence, I am prepared to accept that the Respondents knew of the Applicant's interest in the land. Both parties were together to fight for the return of this land, Teabanaine 810e, in case number Betlan 44/17. Therefore, it is wrong for the Respondents to leave the Applicants behind when they register for the land. The Respondents must be invited to case Betlan 587/17 when registering. The Respondents argued that they were never convinced about the Applicants’ interest, especially their linkage to the original owner, Tekabu Tetonganga. Whether this is true or not, it can only be tested before the magistrate court when the Applicants’ evidence is heard.
    

Conclusion

11. For the reasons stated above, leave to apply for an order of certiorari is granted.
    
12. There is also overwhelming evidence to grant an order of certiorari to bring the Betlan 587/17 decision before this court for its being quashed.
    
13. The case is remitted to the magistrate court for re-hearing, and the magistrate court must ensure the named Applicants are summoned.
    
14. Cost to the Applicants to be taxed if not agreed.
    

ORDER accordingly.

HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice