Batiku v Iobi [1997] KIHC 9; HCLA 095.92 (14 May 1997)

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

HCLA 95/92

BETWEEN:

TERETIA BATIKU
Appellant

AND:

IOBI FOR LANDOWNERS OF TENAMO
Respondents

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

Date of Hearing: 12 May 1997

JUDGMENT

The respondent invited her children to build a sea wall. She knew that her husband was a part-owner of the land on which the sea wall was to be built but she did not know who the other owners were and so did not obtain their permission. The idea was to build a sea wall in order to make a fish pond from which her children could gain a livelihood.

When the sea wall was built the appellant applied to the Makin Land Magistrates' Court to have the sea wall registered in her name. The respondents, as the co-owners of the land on which the sea wall was built, opposed the application and the magistrates rejected it on the basis that there had been no agreement between the owners to build the sea wall. It is from that decision that the respondent now appeals.

Her ground of appeal is as follows:

"They reject my registration while the land is cover up by the sea".

Despite the wording of the appeal, the appellant does not deny that the wall was built on the land known as Tenamo and that her husband and the respondents jointly own that land. The sea wall was built on a part of the land that was covered by the sea, but it was nevertheless still part of Tenamo.

The appellant tells us that the respondents have since destroyed the sea wall. Her children want to rebuild it but the respondents are stopping them even though there is nothing there but sea. Without the sea wall, the appellant claims that her children have no other way of earning a livelihood.

It is clear under the law that it was necessary for the appellant to first obtain the permission of the other owners of the land before commencing to build a sea wall. The appellant would need to satisfy the requirements of section 15 of the Lands Code before she would be entitled to be registered as sole owner of the sea wall.

Section 15 is in these 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".

The appellant was required under this provision to obtain the permission of the other owners before building the sea wall or, if such permission could not be obtained, to apply to the court for approval. She did neither of these things.

Our view is that the Land Magistrates' Court was quite correct in rejecting the appellant's application to be registered as owner of the sea wall.

The appeal therefore fails and is dismissed.

The appellant is advised that she has the 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)