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Tonganibeia v Biita [2008] KIHC 38; Civil Case 98 of 2008 (9 September 2008)

In the High Court of Kiribati
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 98 of 2008

Between:

Teutu Tonganibeia
KN Biita Tonganibeia
KN Tominiko Tonganibeia
KN Buraieta Tonganibeia
Applicants

And:

Tebwaara Biita
1st Respondent

Tebouaa Teaara
2nd Respondent

Attorney General iro Lands Court
3rd Respondent

For the Applicants: Mr Raweita Beniata
For the 2nd Respondent: Mr Banuera Berina
Solicitor General to abide decision of the Court

Date of Hearing: 9 September 2008

JUDGMENT
(Ex Tempore)

Time within which to apply for an order of certiorari extended to 12 June 2008.

The applicants are the owners of the land Takabito 718m in Eita. There never has been a distribution between them or a boundary determination. The first respondent was also an owner. He purported to sell a defined portion of the land to the second respondent for $7,000. The second respondent has paid the money and went into occupation. It was then that the applicants became aware of the purported sale.

While the first respondent may have been able to sell his undivided share in the whole of the land he was not able to sell a defined part of the land to the second respondent.

Certiorari is a discretionary remedy as the Court of Appeal explained in its recent most helpful decision [Tato Kaburoro v Abamakoro Trading Ltd – Civil Appeal 10/2008]. While what has been done was not a valid transaction I am most unwilling to have the $7,000 which the second respondent has paid at risk of being lost to him. I have to balance conflicting interests in exercising the discretion. In this case I should exercise it in favour of the second respondent and refuse the remedy. The second respondent has an undivided interest in the land with the other co-owners. He should take part in a distribution and determination of boundaries. He may or may not be given the piece of land he has been occupying. That will be for the decision of the Single Magistrate.

The application is refused.

THE HON ROBIN MILLHOUSE QC
Chief Justice