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Iererua v Kataba [2020] KIHC 3; Miscellaneous Application 33 of 2020 (20 April 2020)

IN THE HIGH COURT OF KIRIBATI 2020

MISCELLANEOUS APPLICATION NO 33 OF 2020
(ARISING FROM HIGH COURT LAND APPEAL NO. 1 OF 2020)

[IOANE IERERUA, CHAIRMAN FOR
[UNIMWANE BETIO APPLICANTS
[
BETWEEN [AND
[
[RIRI KATABA MTMM, ISSUES OF
[ARITI MANAI TUANA BUREAUA,
[RAABAUA NAKABUTA AND ISSUES OF
[NAKABUTA BUREAUA RESPONDENTS

Before: The Hon Chief Justice Sir John Muria

17 April 2020

Ms Elsie Karakaua for Applicants
Ms Botika Maitinnara for Respondents

RULING

Muria, CJ: The applicants are seeking to stay execution of the decision of the Magistrates’ Court made on 11 March 2020. The respondents oppose the application.

2. The Magistrates’ Court’s decision made on 11 March 2020 is said to have ordered both parties to stop using the Maneaba concerned. The Betio Maneaba in question is that which is situated on Land in Betio belonging to four landowners and is plotted with plot numbers: 825m, 825u, 825o/1 and 825i. The Maneaba was also known as Nippon Betio Maneaba.

3. The respondent is one of the four owners of the land where the Maneaba sits. The respondent now demands rent to be paid for the use of his land on which the Maneaba sits. It is said that the other three landowners on whose portions of the land the Maneaba also sits have no objection to the applicants using the Maneaba free of charge. This led to a dispute between the parties and the question of whether rent should be paid by the applicants for the use of the respondents’ portion of the land came before the Court.

4. While it was clear that the other three landowners of the land 825m, 825u and 825o/1 did not have any objection to the applicants using the Maneaba free, the respondents who are the owners of Plot 825i on which the Maneaba also sits, demanded that the applicants should pay rent for the use of the Maneaba over their portion of the land Plot No. 825i. It must be made clear that the Maneaba sits on plot Nos 825u, 825o/1 and 825i. Plot No. 825m is outside of the Maneaba itself, but it is still within the Maneaba premises.

5. As the applicants have been using the Maneaba for some time to conduct activities for the Betio Community, they needed to continue using the Maneaba. Since the respondents objected to the Maneaba and the applicants using that part of their land Plot 825i the question of rent became an issue before the Single Magistrate who was dealing with the case. They recognized that the respondents had rights to their portion of the land and so proposed the Government rental rate of $221.00 per annum. The respondents demanded $300.00 per month. The Single Magistrate decided on 11 March 2020 that the applicant should pay $250.00 per month.

6. The applicants were not happy with the Single Magistrate’s decision and filed an appeal to the High Court. The appeal grounds centred on the disagreement as to the rental. In basic terms, the applicants’ case on appeal is that the Maneaba had been operating onthe lands on which it sits since the 1970s free of rent and so no rental charge should be imposed. Secondly, the applicants are not happy with $250.00 per month but rather it should be $221.20 per annum in accordance with the Government rate.

7. Pending appeal, the applicants applied to the Magistrates’ Court for stay of execution of the Single Magistrate’s decision of 11 March 2020. The Magistrates’ Court allowed stay of execution on condition that both parties to refrain from using the Maneaba pending the determination of the appeal. The applicants were not happy with that part of the Single Magistrate’s decision prohibiting both parties from using the Maneaba and so applied to stay execution of the Single Magistrate of 11 March 2020.

8. The effect of the applicants’ application is to allow the parties to continue using the Maneaba despite the dispute over the $250.00 per month as ordered by the Magistrates’ Court. I think the applicants are trying to circumvent the order of the Magistrates’ Court which ordered the parties to stop using the Maneaba while the issue of the quantum of rent is to be decided by the High Court on appeal.

9. The application by the applicants for a stay of 11 March 2020 decision is clearly without any merit at all. The applicants were not happy with the quantum of rent payment as decided by the Magistrates’ Court and appealed. The Single Magistrate had already properly decided that a stay of execution of his order be granted pending appeal and the best that the parties should do was for both parties to refrain from using the Maneaba pending appeal.

10. The thrust of the applicants’ position is that they have been using the Maneaba free since the 1970s and that they should be allowed to continue using the Maneaba since the other three landowners did not object to them (applicants) from using the Maneaba. In law, the most that the applicants can enjoy is a licence to use the Maneaba. They have been enjoying that right (licence to use the Maneaba) since the 1970s. That right is revocable by the person who granted such a right. The respondents in the present case had decided to revoke that right of use from the applicants who effectively only have a bare licence as to the use of the respondent’s portion of the land. The respondents who are the registered owners of the plot 825i have the right to eject the applicants from that portion of the land.

11. Similarly, the applicants’ position as against the other three landowners of plots 825m, 825u and 825o/1 is exactly the same. The fact that the applicants have enjoyed the licence or permission to use the property since the 1970s cannot deflect the registered owners’ rights over their land. The applicants do not have any right superior to that of the owners of the land. Just because the applicants perform the functions of elders of the Betio Community, that does not confer on them any right superior to those who are the registered owners of the land on which the Maneba is situated.

12. The best that the applicants can hope for in this case is to secure a contractual licence as to the continued use of the respondents’ portion of the land where the Maneaba is situated. That can be achieved by securing a right to use the respondents’ property in exchange for rental payment. That was what the Single Magistrate had attempted to do in this case. The applicants disputed the Single Magistrate’s decision and appealed. They will have to wait for the result of that appeal.

13. The fact that three of the landowners agreed to the applicants’ use of the Maneaba cannot and does not prevent the respondents from enforcing their rights over their portion of the land on which the Maneaba sits. The respondents have every right to take actions to protect their rights over their portion of the land against the applicants or anybody for that matter.

14. The decision of the Single Magistrate made on 11 March 2020 is affirmed and must be executed as ordered.

15. The applicants’ application is dismissed with costs to be taxed if not agreed.

Dated the 20^th day of April 2020

SIR JOHN MURIA
Chief Justice