Timi v Tong [1997] KICA 8; Land Appeal 01 of 1996 (25 March 1997)

IN THE COURT OF APPEAL OF KIRIBATI
LAND JURISDICTION

LAND APPEAL NO. 1 OF 1996

BETWEEN

TERETIA TIMI
Appellant

AND

MEME TONG
Respondent

Date of Hearing: 20 March 1997
Delivery of judgment: 25 March 1997

Mr T Teiwaki for the Appellants
Mr D Lambourne for the Respondent

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

This is an appeal from the decision of the learned Commissioner who dismissed an appeal from the Lands Magistrates’ Court which ordered that the respondent be registered on land Taranarake 793. It is unnecessary to go into the transactions between the parties because the case depends upon the effect of s. 14 of the Native Lands Code the relevant parts of which provide as follows:

“An owner may sell a land, a pit or a fish pond if his next-of-kin agree and if the court, having considered the matter, approve Before reaching its decision the court should first consider it the lands10 the owner after the sale are sufficient for him and his children”.

It is quite apparent from the words of that section that the validity of a sale of land depends upon the next-of-kin If it does riot appear that the next-of-kin have the magistrates ought riot to approve of the sale. In the present case the commissioner seems to have taken the view that there was no evidence on the question whether or not the next-of-kin did agree. There was a letter produced to the court which has been lost but which may well have indicated that the next-of-kin did not agree but whether or not that is so it is quite clear that there was no evidence that the next-of -kin did agree and we know from the subsequent affidavit that in fact they did not agree. In the circumstances the magistrates were not entitled to approve the sale. It follows that the appeal from the learned Commissioner must be allowed and in lieu of the order made by the Commissioner it should be ordered that the appeal from the magistrates' court be allowed and that the order made by the magistrates should be set aside. It is ordered accordingly.

The appeal is allowed with costs.

Gibbs V.P
Connolly Judge of Appeal
Ryan Judge of Appeal