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Iotebwa v Tabora [2025] KIHC 18; Land Appeal 25 of 2014 (15 April 2025)

IN THE HIGH COURT OF KIRIBATI

High Court Land Appeal 25 of 2014

Between: Taotao Iotebwa
Appellant

AND: Matou Tabora
Respondent

Date of hearing: 18 March 2025
Date of judgment: 15 April 2025

Appearances: Mr. Banuera Berina, Counsel for Appellant

Ms. Elsie Karakaua, Counsel for Respondent

J U D G M E N T

Background

1. This proceeding concerns both the application for an extension of time and a substantive appeal against the decision of the magistrate court in Biklan 6424/08, dated 13 June 2013. The appeal and the application for an extension of time were lodged on 16 April 2014. In Biklan 6424/08, the magistrate court ordered that the appellant must return the land plot Bukintekua 723e/3 to the respondent, the owners of the land, since the respondent had returned the appellant’s money in the sum of $3500 and also because the appellant had not registered over this plot.
   
2. The appellant's main reason for the delay is that they were unaware that the court had made the decision. Iotebwa Katia supported this claim with an affidavit and stated that the last time the case was called was on 29 August 2012, when the last witness was called. The court then ordered submissions from both parties. They continued to follow up with the court regarding the judgment but were informed that it had not been delivered. To their surprise, they received the summons for the eviction case against them. They requested a copy of the judgment, which they received, stating that the judgment was issued on October 13, 2013.
   
3. The respondent, through Counsel, did not oppose the extension of time.
   

Grounds of Appeal

4. The appeal is based on these grounds;
   1. The findings made by the Single Magistrate, namely;
      1. That the land Bukintekua 723e/1 belongs to the respondent,
      2. That the land Bukintekua 723e/3 is the lagoon side of Bukintekua 723e/1,
      3. The appellant’s name has not been registered on the land Bukintekua 723e/3, and she has no certificate of ownership over the said plot.

cannot be supported by evidence before her.

2. The learned Single Magistrate erred in law in taking into account facts submitted by the lawyer for the Respondent that were not in evidence, in coming to her decision.
   

Submissions and Analysis

5. Having reviewed the minutes of the proceedings below, we note that only two witnesses gave evidence; both were witnesses for the respondent. The appellant did not call any witnesses. The following is their evidence;
   • - The first witness, Komeri Rueri, testified that he was unaware of any agreement between Tokaruru and the appellant regarding the land on the lagoon side but noted one buia (a small, raised house) belonging to the appellant located on that side of the lagoon. Komeri also stated that he purchased the ocean side of the land from Tokaruru. When he attempted to clear that plot, the appellant stopped him, claiming that she had bought a portion of the ocean side of the land that extended from the lagoon. She was angry and shouted that Tokaruru should reimburse her for the money she had paid and the funds she had provided to Tokaruru to host a feast for her child. Komeri informed the magistrate court that he had inquired from Tokaruru about the amount she had received from the appellant, and since Tokaruru was prepared to return the money to the appellant, Komeri reimbursed the appellant with $3,500.
     
   • - The respondent’s second witness, Maria Atanibeia, testified in the lower court that she was unaware of any land sale between Tokaruru and the appellant. However, she learned about it when the appellant shouted angrily after seeing Komeri cleaning up the plot he had purchased, claiming that Tokaruru should refund her money. Maria also mentioned that she observed the appellant counting the money she received from Komeri.
     
6. Counsel for the respondent submits that there is no dispute that both the appellant and witness Komeri bought lands from Tokaruru. The appellant bought the lagoon side and some portion extending to the ocean side. Komeri Rueri bought the ocean side from the main road. The Lands Department numbered the two plots. The appellant’s plot was numbered Bukintekua 723e/3 and the respondent’s 723e/1. Although there are two numbers, the proceeding below considered the disputed land as one piece of land.
   
7. After considering the submissions, we acknowledge that the evidence presented before the magistrate's court identified the two plots as the lagoon and ocean sides, which the appellant and Komeri purchased from a single individual, Tokaruru. Additionally, the evidence suggested that these two plots formed part of one larger piece of land, as the appellant acquired the lagoon side and a portion of the ocean side from Tokaruru, while Komeri obtained the ocean side from Tokaruru.
   
8. We also acknowledge that no evidence was presented to the magistrate court indicating that plot number Bukintekua 723e/1 belongs to Komeri. However, Komeri mentioned in his testimony the name of the land he purchased from Tokaruru, which is Bukintekua, although he did not specify that it was 723e/1. Regarding Bukintekua 723e/3, counsel for the appellant referenced this plot number to the magistrate court during her introductory remarks about the claim. The minutes of the proceeding dated 24 May 2012 state the following:

‘Elsie: We request the return of the land Bukintekua 723e/3 to us that was sold to the defendant in 2004 by Tokaruru. The land was sold for $3000 and this money has been refunded to the defendant. They have received their money that is why we want the land back. This plot is located on the lagoon side of the land. The High Court remitted this case for re-hearing.’

9. Although there was no evidence that specified the plot number in dispute, there was a strong understanding in the proceeding that that was the correct number of the disputed land, and all the witnesses were concerned about was giving evidence about how the refund was given to the appellant. The plot numbers were never an issue. Having said that, this Court realises that the plot numbers are indeed correct. It is stated in CNTT 179/02 that the plot bought by Komeri from Tokaruru is Bukintekua 723e/1. The appellant’s certificate of ownership lists the land as Bukintekua 723e/3.
   
10. Counsel for the respondent also submits that the magistrate court was correct in stating that the appellant has not registered their title over Bukintekua 723e/3 because they did not raise this in the court below nor provided their certificate of ownership. We also think the magistrate did not make any error in this regard; without proof of registration, the magistrate is entitled to see it as no registration.
    
11. For ground two, the appellant said there was no evidence to support the claim for the return of the land on the lagoon side. The appellant also submits that there was no evidence to suggest that the money returned was for the whole land and not for the ocean side only.
    
12. We have outlined this Court’s understanding of the evidence presented before the magistrate court in paragraph 5 above. There was clear evidence that the money returned to the appellant was for her payment for the entire plot she bought from Tokaruru. There was no indication that the appellant only sought a refund for the ocean side. When she angrily shouted, she clarified that she had purchased the land from the lagoon and some of the oceanside. As established by the evidence of the two witnesses, the appellant acquired from Tokaruru the land on the lagoon side and part of the ocean side, which Komeri later purchased. The appellant stated that it wasn’t her who approached Tokaruru to buy the land. It was Tokaruru who offered to sell the land to her, so Tokaruru should return the money she paid for the land, along with the amount she gave for hosting a feast for her child. Komeri inquired of Tokaruru how much she had received from the appellant, and he refunded that amount, $3500, because Tokaruru was willing to pay it back.
    
13. There is also a dispute regarding whether this Court should accept the certificate of ownership of the appellant that was just tendered through the affidavit. The respondent submits that, following the principle referred to in the case of Tataua Attorney General [2013] KICA 15, new evidence should not be accepted unless proven that it could not be found at the hearing before the magistrate court. Meanwhile, the respondent, through Counsel, asserts that their case below was that they accepted that the appellant owned the portion on the lagoon and some part of the ocean. However, since the appellant has been refunded the purchase price ($3500), they should return this land. In the end, it does not matter whether introducing the certificate of ownership is permitted, as it is irrelevant to the argument concerning the return of the plot sold to the appellant since the purchase price has been refunded.
    

Conclusion

14. In light of the above, we conclude that the magistrate is entitled to make a decision accordingly. The appeal is not allowed.
    
15. Cost to the respondent, to be agreed or taxed.
    

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice

TITAN TOAKAI RITETI MANINRAKA
Land Appeal Magistrate Land Appeal Magistrate