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Ierebuka v Kaumai [2026] KIHC 2; Land Appeal 01352 of 2025 (9 January 2026)

IN THE HIGH COURT OF KIRIBATI
Land Appeal Jurisdiction
Held at Betio

Land Appeal No. 2025-01352

Between:

Bwebwenimeang Ierebuka Appellant

And:

Tioti Kaumai & Kobua Kaumai Respondents

Counsel: Mr. Banuera Berina for the Appellant

Ms. Botika M. McDermott for the Respondents

JUDGMENT

I. INTRODUCTION

1. This is an appeal from the judgment of the learned Single Magistrate delivered on 7 February 2025 in case 2024-02630, ordering the Appellant to vacate the portion of family land Tannakonimatang 787e/la and to remove his buia from the foundation laid by the Respondent Tioti Kaumai.

II. THE APPEAL

2. The Appellant challenges the decision on three grounds:
   • that the Magistrate erred in finding the plot vacant;
   • that undue weight was placed on the Respondent’s laying of two rows of cement blocks; and
   • that the Respondent had abandoned the plot, thereby forfeiting any superior claim.
3. The Respondents submit that the Magistrate’s findings were correct, that the land was vacant in 2019, and that as co-owners they were entitled to build upon it.
4. To assess these grounds and the opposition, the Court must first clarify the nature of the claim and the legal doctrine invoked.

III. FACTS

5. It is undisputed that the land is family land, registered in the names of multiple descendants of Mangoua Kaitabo, and not formally subdivided.
6. The Respondent Tioti Kaumai testified that in 2019 he cleared the land, cut trees, and laid a concrete foundation of two rows of bricks over a period of 2–3 months. No family member objected. He then left for Aranuka, entrusting his sister Kobua to look after the place.
7. His sister Nei Tetaenikai confirmed that since 2006 the portion had been vacant, with no one living there. She advised Tioti to build in 2019.
8. The Appellant did not give evidence at trial. His case rests on cross-examination of the Respondents’ witnesses, pointing to the existence of a kiakia and toilet house, and to his claim that the Respondent abandoned the plot.

IV. SUBMISSIONS

9. For the Appellant: Counsel argued that the Magistrate erred in treating the plot as vacant when evidence showed a kiakia and toilet house existed, indicating prior occupation. It was submitted that the Respondent himself admitted to bubuti (asking permission) from the Appellant in 2013, which demonstrated recognition of the Appellant’s claim.
10. Counsel further contended that the Respondent abandoned the plot for five years, leaving it overgrown, and that the Magistrate placed undue weight on the laying of two rows of bricks.
11. The Appellant’s position was that the Respondent’s claim was weak, and at most he should be compensated for the bricks, not granted eviction.
12. For the Respondents: Counsel submitted that the Magistrate’s findings were supported by the evidence of Tioti and his sister Tetaenikai, who testified that the land was vacant in 2019 and had been unused since 2006. The Respondent cleared the land, built openly for several months, and no family member objected.
13. Counsel argued that the Appellant gave no evidence at trial, and his claim rested only on cross-examination. The Respondents maintained that temporary absence to Aranuka did not amount to abandonment, as Kobua continued to care for the plot and plant crops.
14. Counsel further urged that the Appellant’s later entry and destruction of the Respondent’s foundation amounted to wrongful ouster, justifying eviction.

V. LEGAL FRAMEWORK

15. The law of co-ownership is settled. Co-owners hold undivided shares with unity of possession. Each is entitled to use and enjoy the whole, but none may exclude another without agreement or lawful order.
16. Authorities across jurisdictions reaffirm this principle:
    • In Fineland Investments Pte Ltd v Rattan [2024] FJHC 702, the Fiji High Court reaffirmed that co-owners are entitled concurrently to use and enjoy the property, and that one cannot oust another absent subdivision or agreement.
    • Similarly, in Wati v Registrar of Titles [2017] FJCA 99, the Fiji Court of Appeal held that a co-owner occupying land with consent cannot claim ownership to the exclusion of others.
    • The principle was earlier recognised in McCormick v McCormick [1921] NZGazLawRp 42; [1921] NZLR 384 (NZCA), where Salmond J explained that each co-owner has equal rights of possession, and only ouster can justify exclusion or compensation.
    • In Bull v Bull [1955] 1 All ER 253, Lord Denning stated that “neither can turn the other out,” underscoring the equal rights of co-owners.
    • The New Zealand High Court in Taunton Syndicate v Commissioner of Inland Revenue [1982] NZHC 242/81 likewise emphasised that tenancy in common is defined by unity of possession, not exclusivity.
17. On appellate review, the principle of restraint is equally clear.
    • In Benmax v Austin Motor Co Ltd [1955] AC 370 (HL), the House of Lords held that findings of fact based on witness credibility are entitled to great weight and should not be disturbed unless plainly wrong.
    • The High Court of Australia in Devries v Australian National Railways Commission (1993) 177 CLR 472 similarly stated that such findings are “virtually unassailable” unless the trial judge overlooked material evidence or reached a plainly unreasonable conclusion.

• Pacific courts have echoed this: in Nausori Meats Co Ltd v Fiji Meats Co Ltd [1983] 29 FLR 49, the Fiji Court of Appeal cautioned against substituting appellate views of fact unless the trial court’s findings are unsupported or plainly wrong.

V. ANALYSIS

18. With the parties’ positions fully canvassed, the Court now turns to the core analytical task: applying the doctrinal framework to the facts of this appeal.
19. Guided by the authorities mentioned earlier, this Court reminds that appellate review is not a rehearing. Findings of fact by the trial court, particularly where based on witness testimony, are entitled to deference unless plainly against the weight of evidence (see Benmax; Devries; Nausori Meats).
20. The Magistrate found that the portion was vacant in 2019, that the Respondent cleared it and built his foundation, and that no family member objected. Those findings were based squarely on the evidence of Tioti and Tetaenikai, the only witnesses who testified. The Appellant gave no evidence.
21. The Appellant’s claim of prior occupation rests on assertions of a decaying kiakia and toilet house. The Magistrate was entitled to find that these structures did not amount to occupation, but were merely remnants or reservations, not active possession.
22. On abandonment, the Court refines the reasoning: temporary absence for financial reasons does not amount to abandonment in law. The Respondent left to Aranuka to raise funds, entrusting his sister Kobua to plant crops and care for the place. He returned in 2023 and saw his garden intact. This continuity of possession through family care distinguishes abandonment from lawful absence.
23. The Appellant’s entry in 2024, dismantling the Respondent’s foundation and crops, was an act of ouster. As the authorities make clear (Bull v Bull; McCormick v McCormick), neither co-owner may exclude the other. The equities favour the Respondent who had first occupied the vacant portion and invested in construction.
24. Remedies in co-ownership disputes should balance equities. Compensation for destroyed bricks or crops could be considered, but eviction was within the Magistrate’s discretion to prevent continuing ouster.
25. While comparative authorities are persuasive, the Court encourages the development of Kiribati-specific precedent. Nonetheless, the principles of unity of possession and prohibition of unilateral exclusion are universal and apply squarely here.

VI. CONCLUSION

26. The appeal must be dismissed. The Magistrate’s findings were supported by the evidence and consistent with the law of co-ownership.
27. The Respondent Tioti Kaumai, as a co-owner, was entitled to occupy the vacant portion in 2019. His possession was not abandoned, and the Appellant’s subsequent entry was wrongful.

VII. ORDERS

1. The appeal is dismissed.
2. The order of the Single Magistrate dated 7 February 2025 is affirmed.
3. The Appellant shall vacate the portion of land and remove his buia forthwith.
4. Costs of the appeal are awarded to the Respondents.
   5. The Court encourages the family to convene and formally subdivide or allocate the land to prevent further disputes.

DATED this 9^th January 2026.

__________________________
HON. AOMORO T. AMTEN
Judge of the High Court