Mangoniti v Mangoniti [2005] KICA 15; Land Appeal 07 of 2004 (8 August 2005)

IN THE KIRIBATI COURT OF APPEAL
LAND JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Land Appeal No 7 of 2004

BETWEEN

TAKORIRI MANGONITI
APPELLANT

AND

TEITI MANGONITI
RESPONDENT

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Banuera Berina for appellant
Taoing Toaba for respondent

Date of Hearing: 3 and 5 August 2005
Date of Judgment: 8 August 2005

JUDGMENT OF THE COURT

Introduction

[1] The appellant and her brothers and sisters (“the appellants”) are registered as the owners of land described as Towai 813w, Terawabono 820e and Taranebo 651e/1e (“the land”). The respondent, who is the half sister of the appellants, applied to be registered alongside the appellants. The Single Magistrate granted the application. The appellants appealed against that grant. In its decision delivered on 21 July 2004 the High Court consisting of the Chief Justice and Magistrates Betero Kaitangare and Raratu Ieita dismissed the appeal. The appellant has appealed against that decision.

[2] The ground of appeal is that the High Court erred in law in failing to find that the term “with brothers and sisters” only refers to real brothers and sisters and does not include “half brothers and half sisters.”

Background

[3] Mangoniti, the father of the appellant and the respondent, died in 1966. He was the owner of the land. The respondent was his child by his first wife. The appellants were his children by his second wife.

[4] After his death, the appellants were registered as owners of the land. In 2001, the respondent, believing that she was included in the phrase brothers and sisters, applied to the Magistrates’ Court for an order to that effect. At the hearing before the Single Magistrate, evidence was given by the respondent and the appellants. In her decision, the Single Magistrate referred to two earlier decisions CN 113/68 and 151/82, which effected the registration of the land in the name of the appellants. She noted that the respondent was not a party to those applications and therefore had no right to appeal. She went on to say:

“I have seen the decision of CN 113/68 and 151/82. It is factual that there is no such word as “with the issues of the second spouse” besides Nei Takoriri Mangoniti and brothers and sisters. But there is no words which means only the second spouse when Nei Takoriri/Mangoniti was being confirmed upon all of Mangoniti’s lands.”

[5] The Single Magistrate went on, in effect although she did not expressly say so, interpreting the earlier decisions, to conclude that the respondent was to be included in the phrase “Nei Takoriri with brothers and sisters” and is therefore one of the owners of the land.

[6] The High Court reached the same conclusion:

“The two ladies had the same father and it is his land over which the respondent applied to be registered alongside her sister. We can see no reason in law or fairness why she should not be. The Single Magistrate came to the correct decision.”

Conclusion

[7] Mr Berina submitted that the term “with brothers and sisters” could only mean the brothers and sisters of Takoriri of full blood, that is to say those who have the same mother and father. In support he submitted that it is the practice in the Lands Court, when it does intend to include half sisters and brothers in a registration, to refer to them by the spouse they came from. He referred to examples of this practice.

[8] We do not accept this submission. There are no logical or policy reasons for not accepting that children of the one parent should be regarded as brothers or sisters for the purpose of land succession. This accords with the express words of s 11 of the Native Land Code Cap 61 dealing with the distribution of an estate where there is no will. Section 11 (ii) provides:

“In the distribution of an estate between the sons and daughters of an owner the shares of the eldest son shall exceed that of his brothers, and the share of sons shall exceed the shares of daughters. If there are no sons then the share of the eldest daughter will exceed that of his sisters.” (emphasis added.)

[9] The words we have emphasised make it clear that it is the sons and daughters of an owner that share the distribution of the estate. The section makes no distinction between sons and daughters of an owner and the same mother or father and sons and daughters of an owner and a different mother or father. This is the correct approach, whatever may be the practice in the Lands Court.

[10] Mr Berina advanced a further ground in support of the appeal that was not set out in the notice of appeal. He submitted that the issue had already been determined in the decisions of the Magistrate’s Court in CN 113/68 and 151/82, and it was not for the Magistrate’s Court in the present proceedings to decide the issue again. To enable this submission to be properly considered, we adjourned the hearing of the appeal for two days for the court record for these two applications to be before the Court.

[11] The minute relating to the decision in 113/68 has not recorded the date of the hearing, the constitution of the Court or who was present. The record reads

“Estate of Mangoniti Tenanoa

It was decided that the estate of Mangoniti Tenanoa [the father of the appellants and the respondent] would be inherited by his child Takoriri Mangoniti [the appellant] with her brothers and sisters. (She lives in Eita) The name of Kakoriri Mangoniti with her brothers and sisters shall be registered on the lands of Mangoniti Tenanoa on all his lands."

[12] The application CN 151/82 came before the Lands Court consisting of five members on 5 August 1982.

[13] The respondent is recorded as saying that she wanted to know whether or not "our names" were registered besides these people after Mangoniti.

[14] The appellant is recorded as saying that she did not know who did the registration for it was done during the lifetime of Mangoniti. This comment seems to be incorrect, since the record of 113/68 expressly states that it is about “Estate of Mangoniti Tenanoa”.

[15] The record goes on to say:

“The lands register was consulted at D/292 and it was discovered that the name of Nei Takoriri Mangoniti had been registered in Case No 113/68.

Judgment: The name of Takoriri Mangoniti with her brothers and sisters should remain in accordance with what had been recorded in the register.”

[16] We do not accept Mr Berina's submission that the decision of the Lands Court on 5 August 1980 decided the same issue as that which came before the Single Magistrate on the present the application. It is clear from the record that the respondent wished to have clarified whether she was entitled to be registered against the land. But the Lands Court in its judgment did not do so. Having discovered what had been registered in Case No 113/68, the Court simply repeated the earlier judgment. It did not reach any decision on whether the expression "her brothers and sisters" included the respondent.

[17] Mr Berina submitted that the Kiribati custom was that the expression did not include half brothers or half sisters. However, that was clearly not the understanding of Kiribati custom of the Single Magistrate because she, in her decision, considered that the expression did include the respondent.

[18] We are satisfied that the Single Magistrate did not purport to reach a decision different from the decision reached on 5 August 1982. She did what the Court had been asked to do in that case, namely interpret the judgment in 113/68 and decide whether that judgment included the appellants. Her opinion that it did is in accordance with s 11 (ii) that we have set out above. We conclude that her decision was correct.

Result

[19] The appeal is dismissed. The appellant is entitled to costs on the appeal to be agreed or taxed, plus disbursements.

Hardie Boys JA
Tompkins JA
Fisher JA