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Kwong v Pedro [2022] KIHC 27; Land Review Case 9 of 2018 (22 March 2022)

IN THE HIGH COURT OF KIRIBATI
TE KABOWI AE RIETATA I KIRIBATI

High Court Land Review Case 9 of 2018

JUDGMENT

1. The Applicants in this case invoked the power given to this court by section 81 (4) of the Magistrates Court Ordinance praying for this land appeal panel to review the decision of the Abaiang Magistrates Court in CN 61/2017 given on 27 July 2017. The Applicants filed their motion for review on 17 July 2018 within the 12 months mandatory timeframe.
   
2. Ms Matinnara, for the Applicants submitted that parties in this case are issues of the previous title holder to lands Teitiroa 197e and Kuria 248t, Nei Atata Tione. The

Respondent is the grandchild of Atata Tione with her first spouse named Sam Pedro. Atata Tione and Sam Pedro had one child, Nei San Lau who is the mother of the Respondent.

3. Atata Tione had a second spouse named Oten Kwong and the Applicants are their children and grandchildren.
   
4. In CN 61/2017, the Respondent who is living in the Marshall Islands came to Abaiang and took out an ex-parte proceeding to register her name after Atata Tione over the two lands Teitiroa 197e and Kuria 248t.
   
5. In the court below, a man named lakoba attended the proceeding on 27 July 2017 in support of the Respondent. The Land Magistrates granted the Respondent's registration and she became the title holder to the two lands previously owned by her grandmother, Atata Tione.
   
6. Since the Applicants were not invited to the proceeding in CN 61/2017, their only recourse was to apply for a review pursuant to section 81(4) of the Magistrates Court Ordinance which they did and the subject of this review.
   
7. Section 11 of the Kiribati Lands Code set out that,

"the estate of an intestate owner or of an owner whose will has been stopped will only be settled when his next-of-kin, or their representatives are present. If the next of kin can agree upon a distribution then this may be approved by the Court. If no agreement can be reached then the estate will be divided as shown below:

b) For Abaiang (our emphasis), if an owner has several spouses then the estate will be distributed amongst the children irrespective of which spouse they are from.”

8. Both counsels agreed that Atata Tione, who was the previous landowner on lands Teitiroa 197e and Kuria 248t, had issues with both her spouses who are the parties in this case. The relevant section put forward by Ms Maitinnara correctly spell out what the Abaiang Magistrates should do when there is no disagreement for the distribution of the lands of Atata Tione.
   
9. However, that could not happen when the Respondent was the only one in court to register after Atata Tione. The Magistrates knew that Atata Tione also had issues with Oten Kwong, the Applicants but with reasons best known to them, they continued to register the Respondent's name without inviting the Applicants.
   
10. Ms Tekanito, put emphasis on one of the Applicants, Atinta Baraniko, submitting that she is not the biological daughter ofBarantita Oten Kwong and should not be the one to initiate the case and adduce factual evidence in her affidavit in this review application. This submission has no merit and should be rejected.
    
11. Atinta Baraniko, was adopted by Barantita and her biological mother is Matereti Oten Kwong, Barantita's sister, so she has an interest in the lands who once belonged to Atata Tione as she is one of the granddaughters.
    
12. Another issue Ms Tekanito raised was the consent signed by some grandchildren of the Applicants supporting the registration of the Respondent. This assertion should also be rejected as they never raised nor provided to the Magistrates Court when the ex-parte application was heard but for this review application.
    
13. Ms Maitinnara, in her submission set out that since the Applicants are also issues (children and grandchildren) of the previous title holder to lands Teitiroa 197e and Kuria 248t, they should be part of the registration or distribution of Atata Tione's two lands.
    
14. We agree to this submission and find that the Abaiang Magistrates have erred in law in proceeding with the Respondent only without summoning the Applicants to have their day in court to show their opposition to the registration which what they are now doing. They have been deprived c; the opportunity because of the extraordinary omission of the Magistrates hearing the case on Abaiang.
    
15. In our opinion, justice will be accorded if the decision of the Abaiang Magistrates Court in CN 61/2017 is quashed and a retrial ordered in accordance to this decision.
    
16. Orders of this court:

1. The decision of the Abaiang Magistrates Court in CN 61/2017 is quashed;
2. A retrial is ordered Co be heard as soon as practicable in line with the findings of this land appeal panel;

100. Costs is awarded to the Applicants to be taxed if not agreed.
     

_____________________
The Hon Abuera Uruaaba,
Commissioner of the High Court

_____________________
Her worship Reteta Rimon
Land Appeal Magistrate

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Her worship Titan Toakai
Land Appeal Magistrate