Atinta v Ueaua [1996] KIHC 161; Land Appeal 115 of 1990 (24 May 1996)

IN THE HIGH COURT OF KIRIBATI
(BEFORE B. SUTTILL C.)

HCLA 5/1996
HCLA 115/90

BETWEEN:

TATAKE ATINTA
Appellant

AND:

UEAUA rep by N. LILY
Respondent

JUDGMENT

In an undated case C/N 23/90, the magistrates gave to the respondent 4R of Kauang 540-e as a gift for nursing one Nei Babo in the period of the latter's sickness before her death.

This gift was opposed in that case by N. Babo's next of kin. It was also opposed on 8 November 1995 in C/N 5/96 by other next of kin of N. Babo. No doubt the appellant had tired of waiting for the appeal HCLA 115/90 to be brought on, there having been no attempt by the High Court to do so until the 22 April 1996.

This is a particular disgrace where the issue is so simple.

S5(1) of the Lands Code reads:-

"A gift for nursing may only be given by a will which has been confirmed by the court or if it is satisfied that the deceased made no will because he was prevented from so doing, or he was incapable of making one."

It is quite clear that in C/N 23/90 there was no will of N. Babo evidencing the gift. Neither was it even alleged that she was prevented from, or incapable of, making one.

The magistrates accordingly had no power to make the order they did, gifting 4R of Kauang 540-e to the respondent, and that order is set aside.

The appeal is allowed.

B. SUTTILL
Commissioner
(24/5/96)

Tekaie Tenanora
Magistrate
(24/5/96)

Betero Kaitangare
Magistrate
(24/5/96)