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Abeton v Abaiang Island Council [2008] KIHC 41; Civil Case 42 of 2008 (10 September 2008)

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

High Court Civil Case 42 of 2008

Between:

N. Tanana Abeton
N. Tiebane Iotebwa
Plaintiffs

And:

Abaiang Island Council
Baikia Kakoroa
Defendants

For the Plaintiffs: Ms Botika Maitinnara
For the Defendants: Mr Birimaka Tekanene

Date of Hearing: 8 September 2008

JUDGMENT

On 30 January 2008 the plaintiff Nei Tanana Abeton took proceedings against the Attorney General iro Abaiang Island Council. The claim is for compensation for various fruit trees cut down on the plaintiffs’ land on Abaiang (Tearikirikaki 247a at Taburao) and for general damages. On 30 June 2008 the Court made these orders:-

(1) that the Abaiang Island Council be named as defendant in these proceedings in place of the Attorney General;

(2) that Baikia Kakoroa be joined as a defendant to represent himself and all issues of Kakoroa Ioteba;

(3) that N. Tiebane Iotebwa be invited to swear an affidavit setting out whether or not she supports her sister N. Tanana Abeton in the case with a view to N. Tiebane being joined as a plaintiff.

Nei Tiebane subsequently did swear an affidavit asking to be added as a plaintiff. At the beginning of the hearing last Monday I made an order joining her.

The action has become one between N. Tanana Abeton and N. Tiebane Iotebwa, plaintiffs and Abaiang Island Council and Baikia Kakoroa defendants.

A convenient starting point is the judgment of this Court in its land jurisdiction (HCLA 74/05 and HCLA 78/05) delivered on 22 January 2005. In that decision we ordered that the Island Council give possession of the land to N. Tanana by 22 February 2006.

The Council asserts that it did give up possession: the plaintiffs asserted it is still in possession. The explanation of the contradiction is that soon after our decision on 22 December 2005 Baikia entered into an arrangement with the Council. From Baikia’s affidavit sworn on 26 May 2008:

3. As one of the issues of the landowners, I together with my brother and sisters have agreed that the Island Council should remain and continue to occupy part of the land Teakirikaki at Abaiang. And that on the 3rd of July 2006 I entered into an arrangement with the Island Council to allow the council to occupy part of the land.

4. Boundary determination has not been carried out for this land.

Baikia had no right in law to enter into this arrangement. He and his siblings may be owners with their aunts in equal undivided shares in the land but not in any particular piece of the land. Baikia could not give possession of any particular area to the Council. The Council was unwise to enter into any arrangement with one owner (or a group of owners) and not making the arrangement with all owners. Baikia in evidence:-

Land has been distributed amongst owners ..... from the lagoon side to middle of land is my portion ..... We haven’t dealt with the boundaries. I haven’t agreed with my aunts where the boundaries are to be.

This informal arrangement in law is a nullity: in practice hopeless as the boundaries have not been determined.

There should be a distribution of the land and a determination of the boundaries by the Court after which the various separate owners will be free to deal with their pieces of land as they wish.

In the meantime the plaintiffs’ claim must succeed: the Council has been occupying and has committed waste on the plaintiffs’ land.

But how should I assess the damages?

The evidence is vague and conflicting. N. Tanana in her evidence claimed loss of the following:-

80 coconut trees
120 babaia trees
20 breadfruit trees
6 banana pits with pumpkins
15 non trees
Mao

I notice these claims are quite at variance with the list in paragraph 4 of the Statement of Claim. I must regard the claim in evidence, not in the pleading.

To the contrary Tiboita Tokoriri, previously Chief Councillor, mentioned only two breadfruit trees and 10 coconut trees for which N. Tanana had been compensated. [N. Tanana denies having ever had any payment from the Council.]

My impression of N. Tanana was that she was making the most of her claim, that it may be inflated. I should make a discount for this.

Apart from the number of trees lost there are other imponderables. For example, the amount per tree I should allow. Mr Tekanene says the Council has its own tariff. Ms Maitinnara suggests I use the tariff set by the Government.

Mr Tekanene has argued that part at least of the claim is statute barred. I am inclined to think, subject to further argument, that the waste was all committed after 30 January 2002, within six years of the issue of the writ.

I pointed out to Ms Maitinnara that she has not claimed for rents lost.

I shall publish these reasons and hear counsel again.

Dated the 10th day of September 2008

THE HON ROBIN MILLHOUSE QC
Chief Justice