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Biriwaiti v Inatio [2025] KIHC 102; Land Appeal 32 of 2021 (21 March 2025)

IN THE HIGH COURT OF KIRIBATI
Land Appeal Jurisdiction
(Kuria Island)

HIGH COURT LAND APPEAL NO: 32 of 2021

BETWEEN: KARAITI BIRIWAITI, INATIO BIRIWAITI
TOKAREREI BIRIWAITI, SAFINGA BIRIWAITI
INARETI BIRIWAITI, BINOKA BIRIWAITI
FAIAKI BIRIWAITI Appellants

AND: TOROWI INATIO (for his brothers

and sisters Respondents

Date of Hearing: 20 November 2024

Appearances: Ms. Eren Ruta Uriam for the Appellants

Mr. Taotere Korimara for the Respondents

JUDGMENT

Introduction

1. This is an appeal against the decision of the Kuria Magistrates’ Court in case number 05/20. The judgment against the appellants (defendants then) was entered on September 10, 2020, and they filed their appeal on September 18.
   

Facts

2. The father of the appellants, Biriwaiti, resided on the land of the respondents. The mother of the respondents, Meren, took Biriwaiti to court to have him removed from the land. The court, after hearing the parties, held that Biriwaiti should not be removed; however, he was ordered to give to Meren his land the same size as that he occupies. A boundary of this portion was fixed.
   
3. Biriwaiti has issues, who then started building their homes on the portion allocated to him.
   
4. The issues of Meren then took proceedings against Inatio Biriwaiti, one of the appellants, alleging that he had built his home outside the allocated portion given to Biriwaiti and sought an eviction order. Inatio argued that he resided within the allocated portion, and in particular, the portion their father was given had no limit, in other words it was the whole land. The court in CN 05/20, after hearing both parties, and after reviewing prior cases, found that Inatio’s residence is outside the boundary of their house plot, and was ordered to vacate the place. The appellants appeal against this decision.
   

The Appeal

5. Counsel Tabibiri Tentau, acting for the appellants, filed one ground of appeal. The ground can be broken down into the following:
   1. the magistrates erred in relying on CN 07/09 which is an incomplete boundary determination
   2. they failed to conduct an onsite visit; and
   100. the boundaries of house plots on the land in question have been settled in Land Appeal 146/86, HCLA 60 of 2008, and Court of Appeal No. 5 of 2008.
        
6. The appellants are now represented by Counsel Ruta Uriam. She filed an amended notice of appeal. Without objection from counsel of the respondents, she relied on such an amendment. Upon reading the grounds, we are of the view that they are related directly to the initial ground mentioned above.
   

Determination

7. In CN 05/20, the case on appeal, it was not disputed that the appellants were entitled to a house plot on the respondents’ land. The only dispute is about the size of the house plot. The crux of the evidence of the respondents, the plaintiffs then, was that Inatio had built outside the boundary of their house plot. This was disputed by the appellants, defendants then, arguing that their house plot has no boundary and that they have been residing on the land for a long time.
   
8. After hearing both sides, the lower court made a decision, refusing to disturb what had been decided in CN 07/09. In effect, the court accepted that the appellants’ father has been registered on his house plot and that the boundary of such has been fixed; it starts from the road going eastward two thousand east of Biriwaiti’s house. It went on to find that the house of Inatio Biriwaiti was erected outside the house plot and was therefore ordered to be removed.
   
9. Counsel Ruta submitted that the court erred when it failed to conduct an onsite visit to verify the location of Inatio’s house on the land. She argued that the evidence before the court was vague and insufficient to support the claim of the respondents. The evidence referred to the measurement of the house plot boundary, which only states that it started from the road and up straight to the east, two thousand from the eastern side of the house of Biriwaiti. She contended that this is insufficient and is vague to give the exact boundary of the appellants’ house plot. In other words, the court relied on incomplete boundaries.
   
10. Counsel Taotere, in contrast, argued that the court was only confirming earlier decisions. She pointed out that the boundary determination is not necessary because the earlier court, in CN 44/03, did conduct a boundary determination, and that boundary was reaffirmed in CN 07/09. Hence, there is no need for the magistrates in CN 05/20 to go onsite. There are sufficient materials before them to consider and determine the claim.
    
11. Having heard submissions of counsels and after considering the relevant minutes, we concur with respondent’s counsel when all the court is asked to do is to remove the house of one of the appellants, Inatio Biriwaiti, not all appellants. Although it was not considered by the court then, there is undisputed evidence from the respondent that the appellants (or some of them) have resided elsewhere other than on their father’s house plot. The measurement is of an interest point, and we will discuss this in detail later. However, it suffices to say that we cannot find any error as argued by the appellant’s counsel. The first ground, therefore, fails.
    
12. The second ground is more or less similar to the first. It was submitted by counsel of the appellants that the court should have conducted a boundary determination. Although a boundary determination should indeed have been helpful, it is not always necessary, as in this case for the reasons mentioned above. The second ground fails.
    
13. The third ground relates to the failure of the court to consider relevant considerations before granting the application. Counsel for the appellants argued that the court failed to take into account relevant considerations before allowing the respondents’ claim. She pointed out that had the court considered CN 33/86, CN 43/03, Land Appeal 05/08, and Land Appeal 60/08, the court would have come to a different conclusion.
    
14. Counsel for the respondent argued that the court did consider all relevant cases and was always aware that the appellants were allowed to stay on the house plot given to their father.
    
15. After reviewing the judgment, we have to agree with counsel for the respondents that the court did consider all relevant matters about the case. There is no dispute as to the appellants’ rights over the house plot except its boundaries. Although CN 33/86, CN 44/03, and HCLA 5/2008 were not specifically mentioned in the judgment, this does not mean that the court did not consider such, and if it is true that they do not, we are of the view that HCLA 60/2008 and CN 07/2009 do provide sufficient information for the court to determine the issue at hand.
    

Conclusion

16. We confirm as a fact that the house plot of Biriwaiti does not cover the whole land. We also confirm that there are measurements to be referenced to ascertain the precise location/measurement of the said house plot.
    
17. Nonetheless, we are curious as to how the court in CN 05/20 applied the measurement as it is without any measurement reference. Were the two thousand from the east in meters, feet, or fathom? We agree that although the measurement is not an issue; however, we believe that in the best interest of all parties and for the justice of the matter, the case be remitted to court, only to ascertain the exact boundaries of Biriwaiti’s house plot as confirmed in CN 07/2009. It is therefore vital that there be a site visit. All parties are to be present when the court takes the measurements and be given the opportunity to argue on such measurements. The court have to come to a final decision only after both parties have been heard.
    

Order

18. The appeal is therefore allowed. The matter be remitted to the court, only to give effect to the conclusion above.
    

Dated this 21^st day of March 2025.

AOMORO. T. AMTEN
Commissioner of
the High Court