Itinikua v Taranimaie [1997] KIHC 50; HCLA 078.94 (10 June 1997)

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

HCLA 78/94
HCLA 17/96

BETWEEN:

KAEMAN ITINIKUA
Appellant

AND:

REEBO TARANIMAIE
Respondent

Mr D Lambourne for the Appellant
Respondent in person

Date of Hearing: 10 June 1997

JUDGMENT

Although given two case numbers, this is in fact only one appeal. HCLA 78/94 has been duplicated by HCLA 17/96.

The appeal is against the decision of the Abemama Land Magistrates' Court handed down on 14 December 1993 in case No. 17/96.

The respondent applied to that court to enforce the sale to him by the appellant of the land known as Teikao. The appellant told the lower court that she had cancelled the agreement and had returned the purchase price of $100. She gave evidence that the respondent had asked for his money back but that she had already given the $100 to Rotiata, the court clerk. There was evidence from a magistrate Tiorim who remembered details of the transaction between the appellant and the respondent. He remembered that the appellant decided to return the respondent's money and left it with the court clerk.

The respondent told the lower court that he had never received the money. The lower court then decided that the respondent was to be registered as the owner of the appellant's land. It is this decision which is now under appeal.

The magistrates did not give a reason for their decision. It should not be necessary for us to have to speculate upon what reason they might have had. The reason should have been clearly stated in the judgment. However, we assume that the magistrates were not just trying to compensate the respondent for the loss of his money, for it was open to the respondent to bring proceedings of a different kind if that was what he was seeking. We assume further that the magistrates would not have reached that decision unless they had considered that the agreement between the appellant and the respondent was still subsisting.

It appears that the magistrates decided the case without any reference to section 14 of the Lands Code which provides as follows:

"14. An owner may sell a land, a pit or a fishpond if his next-of-kin agree and if the court, having considered the matter, approve. Before reaching its decision the court should first consider if the lands remaining to the owner after the sale are sufficient for him and his children".

In the case of Abemama, the provisions of section 14 are qualified in these terms:

"An owner is free to sell one land and one third of the remainder of his lands received from his father's family and a similar proportion of those lands received from his mother's family. The landowner's next-of-kin retain their rights of inheritance on their remaining lands from their families. This proportion may be exceeded only if half of the next-of-kin of the relevant side of the family agree".

It is clear from section 14 that an owner can sell land only if his next-of-kin agree. There was nothing before the magistrates to indicate that the appellant's next-of-kin had agreed to approve the sale to the respondent. Nor did the magistrates first consider if the lands remaining to the appellant after the sale were sufficient for her and her children.

The qualification to section 14 relating to Abemama permits an owner to sell only certain lands in certain proportions without the agreement of his next-of-kin. It does not permit an owner to sell his only land or all of his lands without the agreement of his next-of-kin or without the approval of the court, which must first give consideration to the matter previously mentioned. The qualification in fact assumes that some of the particular land mentioned therein will be retained by the owner.

Not only was there no evidence before the magistrates that the appellant's next-of-kin had agreed to the sale, but there was also no evidence capable of placing the appellant's land within the category particularised in the qualification to section 14. We are therefore of the view that the magistrates were not entitled to approve the sale.

It follows that the appeal must succeed. The appeal is allowed and the decision of the magistrates' court is set aside.

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

THE HON R B LUSSICK
Chief Justice
( /06/97)

TEKAIE TENANORA
Magistrate
( /06/97)

BETERO KAITANGARE
Magistrate
( /06/97)