Tokintekai v Obera [1997] KICA 3; Land Appeal 06 of 1996 (21 March 1997)

IN THE COURT OF APPEAL OF KIRIBATI

LAND JURISDICTION

LAND APPEAL NO. 6 OF 1996

BETWEEN

TOOMA TOKINTEKAI
Appellant

AND

TABOTIKA OBERA
Respondent

Date of Hearing: 20 March 1997
Delivery of Judgment: 21 March 1997

Mr D Lambourne for the Appellant
Respondent in person

JUDGMENT OF THE COURT
(Gibbs V.P., Connolly and Ryan JJ.A)

This case concerns the estate of one Tebuke who died without issue but having left a Will. The Will was not produced, having since been destroyed by fire. By the Will Tebuke made three gifts, to the respondent Tabotika, to N. Tarai and to N. Roiti. Tabotika was the widow of Tebuke and Tarai was one of his next of kin. Roiti was the daughter of a child of Tabotika by a previous marriage; she was therefore a stranger in blood to Tebuke. In the Magistrates' Court the appellant challenged all three gifts and claimed that all the lands of the deceased should have been distributed to his next of kin. The challenge to the gifts to Tabotika and Tarai have been abandoned, and this appeal concerns only the gift to Roiti.

The appellant's case was that the gift to Roiti was a gift for nursing and that it was contrary to clause 5 of the Lands Code. By clause 5 gifts for nursing may be made to strangers, but an owner may not choose a nurse from outside his family unless he has successfully prosecuted them in court - clause 5(ii). It was not suggested that this condition had been satisfied in the present case.

However, by clause 6 of the Code an owner is free to make a gift for kindness and the gift may be approved by the court. If the owner has not been neglected he remains free to make the gift, but it will then not be approved if it is large and will result in his next of kin being left in hardship. A gift for kindness is called a gift of Bora.

In the present case the magistrates stated in their findings that "it is legal that a gift for kindness can be increased when the stranger nursed". The only stranger in blood among the three persons whose gifts were challenged was Roiti. They went on to say that "Tabotika and her two grand daughters were nursed (obviously meaning had nursed) and they were given a reward (Bora)". In their decision they say that the land would be given as a reward to Roiti.

Although these statements are far from clear, they suggest that the magistrates regarded the gift as a bora, and not a gift for nursing.

The judgment of the High Court, although itself not clear, also suggests that that Court also treated the gift as a bora. The Court said: "We also think that the lower court was correct in finding that under section 6 an owner is free to make a gift of bora for kindness". They went on to say that the appellant had not shown that the gift was large and would result in the next of kin being left in hardship.

If the gift in the present case was a bora it was valid. The burden lay on the appellant, who challenged the validity of the gift, to show that it was invalid, and this burden has not been discharged.

The appeal must be dismissed.