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Kobaia v Temaaka [2025] KIHC 9; Civil Review 10 of 2020 (24 March 2025)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL REVIEW 10 OF 2020

BETWEEN: TEITI KOBAIA AND NGANGATA KANOUA FOR ISSUES OF NEI ARIBO KOKORIA

Applicant

AND: KAIUEA TEMAAKA

1^ST Respondent

AND: TEKARAWA BINOKA FOR ISSUES OF KAWAITU TOKITEBA

2^ND Respondent

Date of hearing: 24 February 2025

Date of Judgment: 24 March 2025

Appearance: Ms. Taaira Timeon for the Applicant

Ms. Eweata Maata for the Respondent

J U D G M E N T

The Case

1. This is an application for leave for an order of certiorari to bring before this court against the decision of the Bailan 697/15 for the purpose of it being quashed. The application was filed late on 10 March 2020, but an extension of time was granted on 3 July 2024 when the respondent or Counsel failed to attend the hearing with no reasonable excuse.
2. Bailan 697/15 is about registering Kaiuea Temaaka for the Issues of Nei Aribo Tekea on the land Teabanimate 763-i. Part of that decision allows Tekarawa Binoka for the Issues of Kawaitu Tokitebwa to be joined as landowners of the same land. Both registrations were approved.
   

Review Grounds

3. The decision of the Magistrate Court in Bailan 697/15 is;
   • (a) in contravention of the principles of natural justice and fairness;
   • (b) in contravention of clause 11 of the Lands Code in that not all next of kin of Nei Aribo Tekea presented during the hearing;
   • (c) in contravention of CN 208/03 as Teiti Kobaia had already been registered on behalf of all issues of Nei Aribo Tekea.

Submission and Analysis

4. The application is supported by an affidavit of Ngangata Kanoua. The fact of the case before the magistrate court was that the first respondent agreed for the second respondent to be registered on the land Teabanimate 763i. This land is located in Banraeaba. The parties are descendants of the same ancestor, Teinabure, the land's original owner.
   
5. In case CN 132/48, Teibanure and her siblings, Nei Tenrarai, Mweretaka, and Kawaitu, were registered over the land, Teabanimate 763, and each received one quarter (1/4) of the land. In the land list, Teinabure was recorded as owning Teabanimate 763i, and Kawaitu, her brother, owned Teabanimate 763m.
   
6. The second respondent is a descendant of Kawaitu, the first respondent is a descendant of Teinabure, and the applicant is also a descendant of Teinabure.
   
7. In another case, BA 450/89, the land, Teabannanti 763i, was transferred to Teinabure’s issues, Kobaia, for issues of Nei Aribo. Nei Aribo is one of Teinabure's issues. Teiti received the land from her father, Kobaia, in CN 208/03.
   
8. As mentioned above, in Bailan 697/15, the magistrate court allowed Kaiuea Temaaka, the issue of Teinabure, to agree for the second respondent, Tekarawa Binoka, to be registered as co-owner of the land Teabananti 763i through his ancestor, Kawaitu. Not all Teinabure issues were invited to the proceeding except Kaiuea. The applicants who are also issues of Teinabure were not invited and are not happy with the decision as they believe the distribution has been made between the siblings in CN 132/48 where their ancestor, Teinabure, was given Teabannanti 763i and the second respondent’s ancestor, Kawaitu, was given Teabannanti 763m. Therefore, the second respondent should not be registered with them over their ancestor’s share, Teabannanti 763i. The applicant submits that if the second respondent is unhappy with the distribution done in CN 132/48, they should have appealed against that decision.
   
9. The applicants refer to the case of Tebanna v Tebanna High Court Land Appeal HCLA 4 OF 2019 (1 Dec 2021), which supports the requirement of natural justice in that a potential party must be given an opportunity to be heard before the decision is made.
   
10. The second respondent submits that the magistrate court in Bailan 697/15 approved the registration based on the certificate of ownership showing that the second respondent’s ancestor, Kawaitu, is also the landowner of the land, along with the applicants’ ancestor, Teinabure. The second respondent was only trying to register after his ancestor Kawaitu. Therefore, the applicant’s interest in the land is not affected. The second respondent‘s defence is that the decision of CN 132/48 did not specify that Kawaitu should own Teabannanti 763m, as no exact plot numbers were referred to.
    
11. The applicant raises the principle of title indefeasibility and states that their ancestor owned the land from 1948. There was no disturbance until the second respondent registered themselves in 2015; therefore, their title over the land Teabannanti 763i cannot be disturbed. The second respondent argues that the argument is irrelevant as their title is unaffected; they still own the land.
    
12. The case of Tanaki v Edwin HCCR 4 of 2021 (1 December 2023) is referred to by the second respondent in support of their case. I am very familiar with this case, which is irrelevant to the case at hand. In that case, the respondents were registered over the land with the consent of the applicant’s father. The father allowed them to be registered over the land alongside him. The applicants tried to challenge the respondents’ registration after their father’s death, but their application was dismissed.
    
13. I have reviewed the submissions, together with the magistrate court decisions concerning the land in dispute. I agree that with the applicants that before the registration in 2015 in the case on review, Bailan 679/15, the applicant’s ancestor, Nei Teinabure, was registered over the land from 1948 in CN 132/48. Later, in 1989, in BA 450/89, the land was transferred to Kobaia, the grandson of Teinabure through her daughter, Nei Aribo. In 2003, in CN 208/03, the land was transferred to Kobaia’s son, Teiti, for the Issues of Nei Aribo. When the first and second respondents came to the magistrate court in Bailan 697/15 to have the first respondent register after Nei Aribo, the magistrate court should have invited the applicants to have a say in the matter as he had already been registered after Nei Aribo in 2003.
    
14. Regarding the second respondent's registration, the applicant raised arguable points against this registration that need to be properly considered by the magistrate court concerning the land list that seems to divide the land into several plots. According to that land list, the second respondent’s ancestor owned 763m, and the applicant’s ancestor owned 763i. One of the relevant case numbers stated in that land list is CN 132/48. The applicant must be allowed to be heard by the magistrate court over this point.
    

Order

15. In light of the reasons stated above, the application for leave to seek an order of certiorari to bring before this court the case of Bailan 697/15 for the purpose of it being quashed is granted.
    
16. The decision of Bailan 697/15 is hereby quashed for breach of natural justice.
    
17. The matter is remitted to the lower court for rehearing. All interested parties must be summoned.
    
18. Costs to the applicant, to be taxed if not agreed.
    

THE HON. TETIRO SEMILOTA MAATE MOANIBA

CHIEF JUSTICE