IN THE HIGH COURT OF KIRIBATI

HIGH COURT LAND REVIEW 11 of 2018

BETWEEN:	Nauee Kiaben 
					Applicant

AND:	Motiira Uee & Others
					Respondents
 
Date of Hearing:		    	15 May 2025
Date of Judgment:			3 June 2025

Appearances:		     	Ms Eren Ruta Uriam for the Applicant
                                                      	Ms Henty Grace Pine for the Respondents

JUDGMENT

A. The Case: Brief Facts

1.	Background
  
1.1.	This case is an application for a judicial review of the Magistrates Court’s judgment in CN 141/14, CN 01/15, and CN 02/15. These three cases involved the apportionment and distribution of the land Kuria on Ukiangang in Butaritari, land plot no. 645-I, amongst the issues of Kiarake Burenimatang (Taubenua). 

1.2.	In CN 141/14, it was ruled that the shares allotted to the females should be positioned on the eastern side of the road, while the shares for the males should be arranged on the western side. Conversely, Cases 01/15 and 02/15 focused on determining the boundaries, wherein the respective sizes and locations of the issues’ shares on Kuria were established. The decision made by the Magistrates Court for these two cases was that each female's share should measure 7.5 meters in width and 39 meters in length (or 292.5 square meters), whereas each male's share should measure 7.5 meters in width and 59.4 meters in length (or 445.5 square meters).

1.3.	Nauee Kiaben, the applicant, was never invited or summoned to attend the proceedings in CN 141, CN 01/15, and CN 02/15 as he was living in Tarawa at the time. The respondents well acknowledge this fact. However, his brother, Taeka Kiaben, was summoned and attended all three of the aforementioned proceedings. As the respondents explained, they had no intention of doing injustice to Nauee in any way; they initiated these proceedings against Taeka only because he was the one who obstructed and did not want them to settle on Kuria.

1.4.	In these three proceedings, Taeka Kiaben argued that, as the eldest, their father, Kiaben, was given the entirety of Kuria as his share from his mother, Kiarake, the rightful owner of Kuria, land plot no. 645-i. Nevertheless, there is no will from Kiarake to support Taeka’s claim; therefore, based on the majority’s choice (5 out of the 6 siblings), the Magistrates Court agreed to distribute Kuria among the siblings, with the male siblings receiving larger shares than the female siblings. The male siblings were given the western side of the road, while the female siblings received the eastern side (CN 141/14), with the locations and measurements for their respective shares outlined in the boundary determination conducted in CN 01/15 and CN 02/15.

1.5.	To enforce judgments in these three cases, the respondents in CN 31/17 have applied for an eviction order. The decision on this eviction application is being stayed pending the outcome of this review, which is being taken up by Taeka’s brother, Nauee Kiaben, on the grounds of a breach of natural justice, briefly explained in paragraph 2.1 below.

2.	The Appeal

2.1.	Grounds of Appeal

2.1.1.	The appeal is based on four interrelated grounds as follows;

Ground 1: That the named respondents knew that the applicant was and is an interested party to the distribution proceeding in CN 141/14 and CN 01/15 and CN 02/15, however, they had failed to summon or invite him to court to present his case.
Ground 2: That the applicant was not a named party to the said cases, therefore, he was not given ample and reasonable opportunity to present his case, hence a breach of natural justice.

Ground 3: The magistrate court had made a decision without taking into consideration the interest of all interested parties to the land, including the applicant.

Ground 4: That the distribution was not consented to by all interested parties, including the applicant.

2.2.	Evidence in support of the Review

2.2.1. Submission for the Applicant

2.2.1.1. In support of ground one, Counsel asserted that the respondents never summoned the applicant to attend the Magistrates Court proceedings in CN 141/14, CN 01/15, and CN 02/15. Additionally, the applicant’s interests were not lawfully represented by his brother, Taeka Kiaben, as indicated in the minutes of these cases. Consequently, the applicant was denied the opportunity to present or argue his case in these proceedings, which resulted in unfavorable judgments.

2.2.1.2. Counsel argued that the Magistrates Court in these three proceedings had breached the law of natural justice or the principle of audi alteram partem enshrined in common law. The applicant submitted that, although his brother was invited and attended, there is no evidence that he represented him.  Counsel also contended that, by failing to summon the applicant to participate in the three proceedings, the respondents had neglected to follow the procedural rules as stipulated in Rule 28 and Rule 29 of the Magistrates Court Rules, which state that;

	“Procedure where the applicant or party fails to appear
28. If an applicant fails to appear at the time and place at which he had been required to attend the court and does not excuse his failure to the satisfaction of the court, the court may strike out his application, and if any party does not obey a summons issued under paragraph 1 and does not excuse his failure to the satisfaction of the court, then, after proof of service, the court may appoint a relative of such party to the proceedings as may be reasonably be expected to have good knowledge of the history of the title to the land under dispute, or other matter in issue, to represent each party and may thereupon proceed to hear and determine the matter in issue.

Parties to present in court
29. In all matters before the court the parties or their representatives, or in the case of a party who has failed to appear, his representative as appointed under Rule 28 shall be present throughout the parties being present.”

2.2.1.3. Counsel cited the case of Tebanna v Tebanna (2021) KICA 8; Land Court of Appeal case 4 of 2019 (2021) in support of their case. In that case, the court stated that ”It is a basic principle of law that before making orders that will affect others, a Court must ensure any potential opposing party has an appropriate opportunity to be heard. This is known as the audi alteram pattern principle. It is a fundamental rule of natural justice.” Counsel stressed the point that the effect of these judgments is not trivial or insignificant, as their combined effect would result in all the respondents coming to settle on Kuria 645-i, which he claimed to have been given wholly to their father (Kiaben) as his share by his parent, being the eldest in the family. In addition, the applicant argued that not only had his father, Kiaben, resided on Kuria 645-i throughout his lifetime, but he had also undertaken significant development on the eastern side of the land. Now, his brother, Taeka Kiaben, had lived on the same plot after their father. 

2.2.1.4. To support the second ground, Counsel reiterated that, as the applicant was not a party in cases 141/14, 01/15, and 02/15, the court was therefore unaware of his interest. Consequently, the applicant was unable to persuade the court that he was in occupation of the land at the time of the distribution; they had occupied and developed the disputed land since their father's lifetime—an argument he believed could have influenced the judgments in these cases.

2.2.1.5, For the third and fourth grounds, the applicant’s Counsel argued that, since the interests and therefore consent of all parties with an interest in the land in dispute had not been considered in the challenged judgments, the Magistrates Court had breached section 11 of the Native Lands Code which states that the estate of an inestate owner will only be settled when his next-of-kin can agree upon a distribution then this may be approved by the Court. Counsel submitted that there was a lack of agreement among the next of kin regarding how the land should be divided, as some clearly disagreed with the distribution. He would not have agreed either had he attended.  

2.2.1.6. Moreover, the applicant’s Counsel argued that the challenged judgments had also contravened section 11 (vii) of the Native Lands Code. Instead of distributing the estate or all of the lands of their deceased mother, Kiarake, CN 01/15 and CN 02/15 had allowed Kuria land only to be apportioned or cut up and distributed amongst Kiarake’s issues – a cause of action which Counsel argued to be inconsistent with section 11(vii) of the Native Lands Code. This provision states that;

“Subdivision of lands
(vii) The court should, if possible, refuse to cut up a land plot when distributing an estate- so that each plot in a distribution will not be cut into several pieces and then shared out to all the next-of-kin, but land plots will be undivided so that one nect-of-kin will be given one or more whole plots and the lands will be distributed according to their sizes: in this way a next of kin receives small lands will receive a larger number.”

2.3. Evidence against the Review

2.3.1. Submission for the Respondent

2.3.1.1. In response to ground one, the respondent’s Counsel informed this Court that the applicant’s allegation, claiming that the respondents only initiated proceedings in cases 141/14, 01/15, and 02/15 after their eldest brother passed away, is true; however, that was not the purpose of the case. In fact, cases 141/14, 01/15, and 02/15 were instigated due to the aggressive behavior of the applicant’s brother, Taeka Kiaben, who chased them away from the disputed land. For this reason, the respondents believed they only had to deal with the brother, and the applicant’s appearance in court was not required, as the court also did not inform them of this requirement. Additionally, the applicant was living in Tarawa at the time, and his brother, Taeka, was the only one residing on the disputed land, Kuria. In summary, the respondents emphasized that they had no intention of acting unfairly or unjustly toward the applicant and had acted solely for the reasons explained.

2.3.1.2. In response to ground two, the argument made by the respondents’ Counsel regarding the applicant's case authority, Tebanna v. Tebanna, asserts that the circumstances of that case and the cases under review are not similar. In the mentioned Tebanna case, the uninvited parties only received interests in certain lands, while they were excluded from other lands to which they were equally entitled. In contrast, the apportionment and distribution of Kuria land took into account the interests of all the sons (2) and daughters (4) of the original owner, with each receiving a share of Kuria. A larger share was allocated to the two male siblings on the entire western side of the land, while the four sisters shared the eastern side. 

2.3.1.4. The respondents’ Counsel also argued that the portion of section 11(ii) of the Native Lands Code referenced by the applicant’s Counsel does not apply to the cases under review, as it is unrelated to Butaritari. The portion of section 11(ii) that is relevant explicitly addresses Butaritari, which reads as follows:

“All children of an owner will receive equal shares. Sons will receive more than daughters but the first born will receive no extra”.

2.3.1.5. As explained by the respondents' counsel, strict conformity to this said land code for Butaritari had been ensured in the challenged judgments, particularly in CN 02/15. This means that the judgment in CN 02/15, or the way Kuria land had been apportioned and distributed, is not erroneous in any way, having been made in line with the relevant statutory requirements in place, whereby sons are given a bigger share.

2.3.1.6. Furthermore, the respondents’ Counsel highlighted the differences in how residual discretion is applied in the Tebanna v Tebanna case compared to the cases under review. The court’s exercise of residual discretion in Tebanna v Tebanna was based on circumstances that significantly differ from those in the cases currently being considered. The referenced case involved issues of paternity, land ownership transfer, a distribution order request made 21 years after the landowner's death, the validity of service, and the need for support from other family members to have one’s claim heard by the court. In contrast, the present case focuses solely on the regularity or irregularity of obtaining the judgments in cases 141/14, 01/15, and 02/15, as well as the effects of these judgments on the applicant—whether they would be minor or major, significant or insignificant, and consequently prejudicial or not prejudicial to the applicant. Given the more complex nature of the Tebanna v Tebanna case compared to the cases under review, the former cannot be applied to the latter. In other words, Counsel argued that the case authority is irrelevant and inapplicable to the cases currently being considered.

2.3.1.7. Against ground of appeal three, the respondents’ Counsel argued that this ground lacks merit. Although the applicant was not physically present in cases 141/14, 01/15, and 02/15, his interest, like that of his brother, Taeka, was taken into account. The applicant’s claim to the disputed land is based on the assertion that all of Kuria land had been given to their father, being the eldest in the Uee & Kiarake family and, therefore, entitled to a larger share. Taeka also made this same claim in those proceedings; thus, it is incorrect to say that the interests of all parties involved in the disputed land were not considered in the Magistrates Court proceedings.

2.3.1.8. The applicant’s claim that his father should be accorded a larger share because he is the eldest in the family is also disputed by the respondents’ Counsel. Counsel argued that, according to the relevant part of section 11(ii) of the Native Lands Code about Butaritari, although the applicant’s father is the eldest, the Native Lands Code for Butaritari stipulates that the firstborn will receive no extra share. Therefore, as asserted by the respondents’ Counsel, this interest of the applicant has no merit and would not have affected the judgments under review even if the applicant had been given the opportunity to present and argue it in the challenged proceedings. 

2.3.1.9. Citing the 2011 case of Terenga v Tooma [2011] KIHC 33, the respondents’ Counsel highlighted the general principle that an appellate court will not mandate a new trial if it would inevitably lead to the same outcome order as the court Terenga v Tooma says that “not every departure from the rules of natural justice at a trial will entitle an aggrieved party to a new trial.”

2.3.1.10. The respondents’ Counsel also disputed Ground of Appeal 4. The 2023 case of Teeta Wiauea v Arawatau Rui & others (2024) High Court Land Review 3 of 2023, 22 August 2024, was referenced to support Counsel’s argument that, although the applicant may not consent to the apportionment and distribution of the Kuria land because he was denied the opportunity to present his case or interests in the matters under review, the law of natural justice had not been violated since his interests, as previously explained, were also conveyed to the court by his brother, Taeka, and thus taken into account in the aforementioned cases. Similarly, the challenged judgments have not deprived the applicant of his father’s legal privilege to receive a larger share compared to his sisters' shares on the land. 

2.3.1.11. Additionally, the respondents’ Counsel noted that the applicant is the only person pursuing these review proceedings, which implies that the other siblings likely accept the judgments made in cases 141/14, 01/15, and 02/15. It is more probable than not, as all siblings, including the applicant’s father and children, now have a share and can reside on Kuria.

3. The Court’s Key Findings 

3.1. From the parties’ submissions, the Court finds that:

i)	Kuria plot no: 645-i is the land in dispute, initially owned by Kiarake Burenimatang (Taubenua), whose issues are the applicant and respondents in these judicial review cases; 

ii)	Taeka Kiaben, the applicant’s brother, opposed the apportionment and distribution of Kuria in these three cases, claiming that the land is the exclusive share of their father, Kiaben, who was given it by his parents as the eldest in the family. Taeka also submitted his interest to the magistrate's court that he wanted to remain on the plot where he currently resides when asked by the court. However, the Magistrates Court disagreed with him, as there was no will from the original landowner (Kiarake) to support his claim that his father, Kiaben, was given the entire land to own, and most of the siblings (i.e., 5 out of 6 siblings) were against him on this and also on how the land should be divided among the siblings of the original owner.

iii)	The applicant had not been summoned to attend the 141/14, 01/15 and 02/15 proceedings firstly because the respondents only had a dispute with his brother, Taeka Kiaben, who did not want them to reside on Kuria land. ; secondly, the respondents were not advised by the court that the applicant’s presence in these cases was also required; and thirdly, the applicant was residing in Tarawa at the time, as clearly indicated by him in his first affidavit paragraph 4.

iv)	The applicant has applied for the review of the judgments in the three proceedings mentioned because his interest and consent were not solicited when Kuria was apportioned and distributed in these proceedings.

v)	The applicant’s interest in the disputed matter is twofold: i) the entire Kuria plot was given to his father as his exclusive share, being the eldest in the family, and ii) they have made many developments on the land and have been residing there, more specifically on the eastern side, since their father's lifetime. We note the evidence in the applicant’s first affidavit, which mentions that his brother, Taeka, was the only one who resided on the land after their father, while he lived in Tarawa (see paragraphs 4, 8, and 16). He only returned to Butaritari when his wife relocated there to teach (para 6).

vi)	This same interest was also expressed in the challenged court proceedings by the applicant’s brother, Taeka, indicating that the applicant’s interest had already been considered in the apportionment and distribution of Kuria in those proceedings.

vii)	According to section 11 (ii) of the Lands Code for Butaritari, even though his father is the eldest in the Uee & Kiarake family, he is not entitled to receive an extra share. The provision is unambiguous in requiring that for Butaritari, shares of sons must be larger than those of daughters, and the eldest child must receive no extra share.

viii)	The distribution of the land in Kuria aligns with the provisions of the Native Lands Code, as the shares received by the sons are larger than those received by the daughters. Section 11 of the Lands Code for Butaritari states that male heirs of a landowner should receive a larger share than female heirs, which is precisely what occurred in the challenged proceedings, particularly in cases 01/15 and 02/15. 

ix)	The authority of the Tebanna v Tebanna case is irrelevant and not applicable to the cases under review because, in that case, some of the rightful owners did not receive their share due to not being invited to the proceeding. In contrast, in the cases under review, all siblings (children of the original owner) receive a share in Kuria. 

x)	Although the service of summons for the challenged proceedings may have been irregular since the applicant was not summoned at all, it is evident from the reasons provided in the evidence that the respondents did not intend to cause any unfairness or injustice to the applicant. Furthermore, the effects of the judgments made in these proceedings on the applicant are not prejudicial to him, as his interests align with those of his brother, which the court had considered. The principle advocated by the Terenga v Tooma case authority implies that as long as a court considers an aggrieved party’s interests, the law of natural justice is not breached.

xi)	The respondents’ case is also supported by the principle advocated in the Teeta Waiauea v Arawatau Rui case, which conveys two points: a) an appellate court will not order a new trial if it would inevitably result in the same order, and b) not every departure from the rules of natural justice at a trial will entitle an aggrieved party to a new trial.

xii)	We disagree with the applicant's claim that the magistrate court erred in law by failing to distribute the entire estate of Kiarake and instead only divided one of her lands, Kuria, into shares among the heirs. Section 11(vii) of the Native Lands Code is not mandatory regarding the distribution of lands; rather, this provision offers an option for distributing an estate among the next of kin. The provision states that ‘The court should, if possible, refuse to cut up a land plot when distributing an estate-…” While the magistrate court has this option, it is irrelevant since the case before them pertains solely to the distribution of Kuria, as all the siblings wish to have a share of Kuria land. In fact, the respondents were residing on the disputed land when the applicant’s brother, who also lived on Kuria, filed an eviction case against them. This prompted the respondents to file their cases for the distribution of this land among all brothers and sisters.

4. Conclusion

This Court concludes that there was no breach of natural justice in cases 141/14, 01/15, and 02/15. Although not summoned to the proceedings on review, the applicant’s interests were adequately represented by his brother, Taeka, who shared the same interests and attended all of these proceedings. Furthermore, the apportionment and distribution of the disputed land Kuria was carried out in accordance with the Lands Code. Therefore, it would be unnecessary to remit the matter back to the Magistrate's Court for retrial, as it would inevitably result in the same order being made as that issued by the magistrates in the cases under review.

B. ORDER

4.1.	For the above-mentioned reasons:

4.1.1.	The application for judicial review is not allowed; and

4.1.2.	The judgments in case no 141/14, 01/15, and 02/15 are affirmed accordingly.

4.1.3.	Cost to the respondents, to be taxed if not agreed.

THE HON. TEITIRO SEMILOTA MAATE MOANIBA
Chief Justice

ARIAN ARINTETAAKE				RITETI MANINRAKA
Land Appeal Magistrate					Land Appeal Magistrate