Kiaman v Toromon [1997] KIHC 48; HCLA 01.95 (1 December 1997)

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

HCLA 1/95
HCLA 96/92

BETWEEN:

MAUERERE KIAMAN
Appellant

AND:

KAINANA TOROMON
Respondent

Mr D Lambourne for Appellant
Mr B Berina for Respondent

Date of Hearing: 27 November 1997

JUDGMENT

Although given two case numbers, this is just the one appeal. Case No. 29/95 is a duplicate of case No. 96/92.

The appeal is against the decision of the Makin Magistrates' Court (Lands) delivered on 14 May 1992 in case No. 23/92.

The appellant and respondent are members of the same family and, as such, are joint owners, along with other members, of the land Tabonteaba 101 on Makin Island. When the appellant returned to the said land from Tarawa he looked for a place to build his house. The plot he chose appeared to be vacant so he erected his house there. In fact the respondent's daughter Aenamo had already laid claim to that particular piece of land by paying a fee to Makin Island Council. We are told that this fee is payable to the Council by a person wishing to erect a house.

The respondent applied to the Magistrates' Court for an eviction order against the appellant which was granted in case No. 23/92. That is the decision which is now appealed against.

As we understand it, the appellant relies on two grounds for claiming that the magistrates were wrong in granting the eviction order.

The first ground is that although the appellant and respondent belong to the same family they belong to different classes. In case No. 4/80 the subject land was divided into 3 separate sections: the High Chief's quarter, a section for toka (noblemen) and a section for rorobuaka (workers). It is submitted that the disputed plot is in the section for workers and that the appellant is a member of that class, whereas the respondent is a member of the toka. If this were correct then the respondent would have no claim on land distributed to the workers. But there is no evidence to support this claim. The minutes of case No. 4/80 do not mention the appellant or respondent and there is no other evidence to prove to which class of the family each belongs. This particular ground must therefore fail.

The second ground is that since the appellant and the respondent are joint owners the dispute is a family dispute and the court has no power to say where a member of a family can put a house on family-owned land.

We agree with this proposition but would add that under the Lands Code, once the family has decided on the rights of members of the family to occupy specific plots, the court has the duty to approve and supervise such a decision.

Makin Section 4 of the Lands Code provides:

"4. Now that the numbers and sizes of lands have been determined it is the responsibility of the family to decide on the allocation of their own individual plots. Divisions will be approved and supervised by the court".

In our opinion the power of the court to supervise would include a power to issue an eviction order against any person disobeying an allocation made by the family. However, a condition precedent to the court being able to order an eviction is that the family must decide on the allocation of their own individual plots. In the present case there was no evidence before the magistrates that the claim by the respondent's daughter to the disputed plot was the result of a family decision. True, she had paid a fee to the council, but there was no evidence that the fee was paid at the direction, or with the approval, of the head of the family. The magistrates themselves had no power to allocate that plot to the respondent's daughter. And in the absence of proof that the allocation was the result of a family decision the magistrates were wrong in issuing an eviction order.

It follows that the appeal will be allowed and the decision of the magistrates' court set aside.

THE HON R B LUSSICK
Chief Justice
( /12/97)

TEKAIE TENANORA
Magistrate
( /12/97)

BETERO KAITANGARE
Magistrate
( /12/97)