Toanue v Iobi [1997] KIHC 10; HCLA 094.92 (14 May 1997)

IN THE HIGH COURT OF KIRIBATI
HELD AT MAKIN
(BEFORE THE HON R LUSSICK C.J.)

HCLA 94/92

BETWEEN:

IOANE TOANUE
Appellant

AND:

IOBI FOR TENAMO LANDOWNERS
Respondents

Appellant in person
Burennatu and Kabutirake for Iobi (Dec'd)

Date of Hearing: 12 May 1997

JUDGMENT

The appellant built a sea wall on land which he jointly owns with the respondents without first obtaining the consent of the respondents.

The appellant then applied to the Makin Land Magistrates' Court to be registered as sole owner of the land upon which the sea wall was built. The magistrates refused this application on the basis that no prior agreement had been reached with the co-owners to build the wall. It is from this decision that the appellant now appeals.

It might be thought from reading the minutes of the proceedings in the lower court that the appellant's case is that he reclaimed ownerless land from the sea. That is not so. The appellant made it clear to us that his case is that he built the wall to stop the sea entering onto a section of land. That land was previously infertile but because of the sea wall he was able to plant a tree which is now growing healthily. The sea wall has now been destroyed by the respondents but the foundations are still there. The appellant does not deny that the land on which the foundations stand is jointly owned with the respondents. But he claims that since he was the one who built the sea wall he is entitled to have it registered in his name alone.

The appellant submits to us that there is a provision in the Lands Ordinance that says if you work on a place and build it up, then it belongs to you.

We think the appellant is referring to section 15 of the Lands Code, which is in the following terms:

"15 (i) Before making a fishtrap, a seawall, a pond, a pit or niba upon anyone else's land, the person wishing to make the improvement must come before the court only if the owner of the land upon which it is to be made refuses to give permission, or if the value of an existing improvement will be reduced thereby.

(ii) When permission has been obtained to make an improvement, then it must be made and when it is complete it will be inspected by members of the court and the person who made it must again come before the court so that it can be registered in the register of native lands under his name".

It is apparent that the appellant did not comply with this provision. He did not obtain the permission of the co-owners to build the sea wall, nor did he apply to the court for approval to build the sea wall without such permission. Under section 15(ii) a person building a sea wall will become entitled to have it registered in his name only if he has first obtained permission to build it.

We cannot see anything wrong with the decision of the Land Magistrates' Court.

Accordingly, the appeal fails and is dismissed.

The appellant is advised that he has a right to appeal to the Court of Appeal within 6 weeks.

THE HON R B LUSSICK
Chief Justice
(14/05/97)

TEKAIE TENANORA
Magistrate
(14/05/97)

BETERO KAITANGARE
Magistrate
(14/05/97)