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Taaia v Taaia [2025] KIHC 101; Land Review 8 of 2021 (20 March 2025)

IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction
(South Tarawa)

HIGH COURT LAND REVIEW NO: 8 of 2021

BETWEEN
HERMAN T. TAAIA ___________________________ Applicant

AND
TIIN TAAIA ________________________________ 1^st Respondent

TAABETI TARATIERA _____________________ 2^nd Respondent

Date of Hearing: 26 November 2024

Appearances: Ms. Taoing Taoaba for the Applicant

Mr. Tabibiri Tentau for the 1^st and 2^nd Respondents

JUDGMENT

1. This is an application for review by way of Notice of Motion filed on 18th October 2021. We must express our difficulty in pinpointing the appropriate legal foundation, as it lacks specificity and does not reference any applicable law. It is not the responsibility of this court to fill in the gaps every now and then. Counsels are encouraged to exercise greater diligence in their applications; this will not only conserve time and resources but also offers the court and, importantly, the parties involved, particularly the respondent, a clear direction.
2. Having read the motion several times, the application is in respect of a review. Hence, we shall treat this as such, which means this is an application in accordance with section 81 of the Magistrates’ Courts Ordinance. The procedures are well set out in this section.
   
3. In summary, the review necessitated this court to examine the Kuria Land Case Number CN 1/21, which the applicants contended was unlawful due to their lack of summons and their vested interest in the disputed matter. They requested that this court annul the decision in CN 1/21 and return it for a new hearing.
   
4. In support of this application, Ms Taoing, counsel for the applicant, relied on Aeroman Taratiera Taaia’s affidavit dated 18th October 2021. Having read this affidavit, the essence of it is that the 1st respondent approached the court in CN 1/21 to claim their share of the lease rents from the land Tawana 161a without their prior knowledge, as they were not summoned. He maintained that had they been notified, they would have demonstrated that while the 1st respondent’s father is a co-owner of land Tawana 161a, his share does not encompass the airfield, which is the subject of the lease. The outcome of CN 1/21 determined that the 1st respondent would receive a third (1/3) of the lease rents. This not only diminishes their share of the lease rents but also contradicts the ruling of CN 23/20, the applicant argued.
   
5. In reply, Mr Tabibiri, counsel for the respondents, relied on Tiin Aeroman Taaia’s affidavit and Taabeti Taratiera’s. Tiin asserted that their actions in CN 1/21 were solely to claim their father, Herman’s (also known as Aeroman), share of the lease rent. She maintained that a formal distribution of land Tawana 161a was conducted in CN 5/75, where their father and his two brothers (Taratiera, the applicant's father, and Tioti) received equal shares, each obtaining a third. In addressing the claim that their father's share does not extend to the leased area of Tawana 161a, she argued that no boundary determination has been made thus far, and that all three brothers should equally share the lease. She further contended that CN 23/20 was merely a distribution among the issues of Taratiera (the applicant and his siblings), focusing solely on their father's share.
   
6. The 2nd respondent, in a nutshell, corroborated what the 1st respondent said.
   
7. In CN 5/75, Tawana 161a was registered in the names of the three brothers: the applicant’s father (Taratiera), the 1st respondent’s father (Herman, aka Aeroman), and Tioti.
   
8. In CN 23/20, the applicants took proceedings for the distribution of the lease rents of land Tawana 161a (and another plot known also as Tawana 168t). Appearing thereat were the applicants only; it was an ex parte application. The court allowed the distribution.
   
9. In CN 1/21, the case on review, the 1st respondent (plaintiff then) took proceedings against the 2nd respondent (defendant then) to obtain a third of the lease rents for land Tawana 161a as a share of their father pursuant to CN 5/75. The court allowed the application.
   
10. Bearing in mind CN 5/75, when the applicant started proceedings in CN 23/20 to distribute the lease rents for Tawana 161a and Tawana 168t, they were merely distributing what should have belonged to their father, Taratiera. Under the given circumstances, this was their only course of action; they do not possess any right, interest or authority to manage the interests of their two uncles, Herman (the 1st respondent’s father) or Tioti. This conclusion is the only logical one, which may explain why the court agreed to consider the ex parte application then. Furthermore, it cannot be said that the respondents, especially the 1st respondent and her siblings, are bound by the decision of CN 23/20.
    
11. We believe that this perspective also applies to CN 1/21, the case currently under review. The 1st respondent, in requesting their share of the lease rents from the court, was solely inquiring about the entitlements of their father, Herman, specifically his interest. After considering the testimony of the 1st respondent and reviewing CN 5/75, the court awarded the 1st respondent a third of the lease rents from Tawana 161a, assuming that CN 5/75 had distributed the said land among the three brothers.
    
12. The perplexity we experience stems from the fact that both the parties and the court in cases CN 23/20 and CN 1/21 were under the erroneous impression that the court in CN 5/75 had divided the land Tawana 161a equally between the applicant’s father, the 1st respondent’s father, and their uncle Tioti (the three brothers), leading to the assumption of equal shares. However, this is inaccurate; the court in CN 5/75 only addressed the registration of Tawana 161a in the names of the said three brothers. The land was not divided among them, indicating that no individual shares were allocated to each brother, contrary to the assertions made by both parties and the apparent belief of the lower court. In essence, their fathers held a shared interest in the said land.
    
13. An additional significant aspect to consider is the lease rent associated with this land, as CN 5/75 does not address this either. Nevertheless, if the land is leased and no division has occurred, all registered parties, are entitled to the lease rent. How this will be shared is up to the parties, and will be another subject-matter for another day.
    
14. We took a moment to consider the situation, as the 1st respondent seemed to suggest that a division had occurred. In paragraph 10 of her affidavit, which was supported by Taabeti, she stated that her share was designated as Tawana 161a/3 in accordance with case CN 29/97. This indicates a potential distribution among the brothers; however, case CN 29/97 was not included in the evidence presented. Consequently, we are unable to validate the assertion made by the 1st respondent. Moreover, it was neither submitted nor mentioned in court during CN 1/21; the only case referenced by the court was CN 5/75, regarding which we have previously expressed our concerns.
    
15. In light of the aforementioned considerations, and in view of the justice of the matter, we hereby issue the following directives:
    • (a) The application is allowed, and the matter is remitted for a rehearing. Actions taken by the parties in ensuring that the matter is heard must adhere to the principles of natural justice.
    • (b) Further, to ensure clarity and avoid any further confusion, both CN 23/20 and CN 1/21 are annulled. Furthermore, the court is instructed to consider the applicability and relevance of case CN 29/97.
    • (c) We acknowledge that lease payments were made in accordance with these cases (CN 23/20 and CN 1/21), and since they are now annulled, such payments shall be suspended until the parties concerned initiate the necessary legal proceedings. To implement this ruling, a copy of the judgment must be sent to the Director of Lands.

Order accordingly.

Dated this 20^th March 2025.

HON JUSTICE A. T. AMTEN

Puisne Judge