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Attorney General for the Director of Lands v Kairo [2025] KIHC 1; Civil Case 05765 of 2025 (5 January 2025)

IN THE HIGH COURT OF KIRIBATI

CIVIL JURISDICTION

High Court Civil Case 2025-05765

Between: Attorney-General for the Director of Lands

Applicant

AND: Tewanimone Kairo and Kuriti Tekanene Respondents

Date of hearing: 22 September 2025
Date of judgment: 5 January 2025

Appearances: Ms Benateta Atanteora for the Applicant

Ms Botika Maitinnara for the Respondent

JUDGMENT

The Case

1. This is an application for leave to apply for a certiorari order to quash the decision in the case BD 31/19, dated November 17, 2020, because the applicants have an interest in the land but were not invited to the proceeding and have been unjustly affected by this decision.
   
2. The decision of BD 31/19 states that land accretion occurring after the commencement of the lease is not part of the lease; therefore, this part should be returned to the landowners.
   

Submissions and Analysis

3. This application is supported by the affidavit of Matang Moses Teikaue Tebano, an assistant surveyor at the Ministry of Environment, Lands and Agricultural Development. He deposed that he was invited to the court hearing to assist the court and the parties in surveying the land boundaries and in identifying and marking boundaries as recorded in their official records and system. He stated that he was not aware of the judgment until their office received the magistrate court’s decision regarding the enforcement of the judgment of BD 31/19.
   
4. The case, BD 31/19, was between the two respondents, namely Tewanimone Kairo as the applicant and Kuriti Tekanene as the respondent. Tewanimone sought to determine the boundaries of their land, Korona 673i, which is leased by the Government under the Headlease. The Magistrate Court invited the Director of Lands to assist in the survey and identification of the boundary marks of the leased land. At that point, Mr. Matang Moses Teikauea Tebano was involved. He conducted the survey and found that the size of the leased land had increased by 0.052 acres since the lease first began. The magistrate court decided that the extent of the land is not part of the lease and should be returned to the landowner.
   
5. The Applicant’s Counsel argues that the decision contravenes section 12(2) of the Native Lands Act which states as follows;
   

“Subject to subsection (3) and to any specific provision to the contrary in a lease or sub-lease, the extent of the land leased...shall be deemed to and shall include any accretion of land after the commencement of the lease...”

6. Subsection (3) states that;
   

“The lessor and lessee ...may at any time in writing...exclude or modify expressly or impliedly the provisions of subsection 12(2).”

7. Counsel submits that, pursuant to the above provisions, any accretion of the leased land occurring after the lease has commenced shall be treated as part of the leased land. Therefore, the magistrate’s decision was in contravention of these provisions. Counsel argues that the applicant did not have an opportunity to present this argument to the magistrate court because it was not invited to the proceeding as a party.
   
8. Counsel for the respondent submits that there was no accretion; therefore, the argument put forward by the applicant is irrelevant.
   
9. In assessing both arguments, I find that the decision in BD 31/19 adversely affected the Government, as the lessor of the leased land. The Director of Lands normally handles Government leases, and all cases against the Republic concerning the Republic’s land leases are issued in the name of the Attorney General. The Republic or the Director of Lands was not invited to the proceedings in BD 31/19. The Director’s only involvement was through the surveyor, Mr. Tebano, who was invited to assist the court and the parties (now respondents) with the surveying of the boundary marks of the leased land in question.
   
10. The applicant submitted that the decision contravenes section 12(2) of the Native Lands Act. However, the respondent argued that this legal issue is irrelevant because there was no accretion. These are critical issues that require proper consideration by the magistrate court.
    

Outcome

11. For the reasons stated above, the application for leave to apply for an order of certiorari to quash the decision in BD 31/19 is granted.
    
12. Therefore, this court issues an order of certiorari against the magistrate's decision in BD 31/19. This decision is therefore quashed.
    
13. The matter is remitted to the lower court for rehearing. All interested parties including the Attorney General for the Director of Lands, must be invited. Cost is awarded to the applicant, to be agreed or taxed.
    

Order Accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA

Chief Justice