Bauro v Sani [1998] KIHC 19; HCLA 070.97 (27 March 1998)

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

HCLA 70/97

BETWEEN:

ATIOTA BAURO
Appellant

AND:

ASIA SANI
Respondent

Mr T Teiwaki for the Appellant
Mr D Lambourne for the Respondent

Date of Hearing: 27 February 1998

JUDGMENT

The respondent, Asia Sani, is the holder of a native lease over the northern half of the land Tabweao 643/e/1, which runs from the oceanside to the lagoon side in an east-west direction. The lessor was Itinimone Kabotau. The term of the lease was 21 years from 21 March 1984 at a monthly rent of $10.00. The lease was approved by the magistrates' court in case No. 66/84.

In 1996, the appellant bought part of Tabweao 643/e/1 from the issue of Itinimone (case No. 159/96) and began to construct a building.

In case No. 265/97, the respondent applied to the South Tarawa Magistrates' Court (Lands) for an order evicting the appellant and stopping him from building.

The case was heard by a Single Magistrate who found that the land purchased by the appellant fell within the land leased by the respondent. The Single Magistrate decided that the appellant's land was therefore subject to the lease and granted the orders sought by the respondent.

That decision is now appealed on the sole ground that the respondent's lease was invalid because it did not comply with the requirements of section 11 of the Native Lands Ordinance (Cap. 61). Section 11 reads as follows:

"11(1) Any native desiring to obtain a native lease shall submit the proposed lease to the court of the district or island in which the land the subject of the native lease is situate.

(2) On being satisfied that the land to be leased is the property of the lessor and that the terms and conditions of the lease are fair both to the lessor and the lessee and that if the lease takes effect there will be sufficient land left to the lessor to support himself and his family, the court shall approve the lease and thereupon the presiding magistrate shall cause the clerk to enter a copy of the lease in the court register of native leases and to make an endorsement upon the lease to the effect that it has been approved and registered".

In case No. 66/84 the respondent, as lessee, sought approval of the proposed lease of the subject land from the lessor, Itinimone. Itinimone was present in court with four of his children. The court was given details of the land to be leased, the monthly rent and the term of the lease. Itinimone and his children indicated to the court that they agreed to lease the land to the respondent on those terms, whereupon the court approved the lease. We therefore infer that the court was satisfied on the matters of which it was required to be satisfied under section 11(2). On their part, the parties had done all that was required of them under section 11.

The requirements as to registration in section 11(2) were not the responsibility of the parties but of the presiding magistrate and court clerk. The court did not require the parties to produce a formal lease document. Instead, the court recorded the details of the lease and endorsed the court's approval on the court minutes. No court register of native leases had been established at that time (and this is still the case), so it was obviously not possible for the clerk to comply with that particular requirement. In effect, the case number of the lease became also its registration number. The normal procedure is to enter the number of the lease alongside the name of the land in the land register to enable interested persons to refer back to the lease. This may or may not have been done in case No. 66/84, but it is not a requirement of section 11(2) and would not have affected the validity of the lease. We think that the court in that case complied with the registration requirements of section 11(2) so far as it was able.

It follows from what we have said that we agree with the decision of the Single Magistrate in case No. 265/97. In our view, the lease is valid and binding on the appellant. We sympathise with the appellant because it is obvious that he bought the land without having been made aware of the existence of the lease. Nevertheless, he is not left without remedy against the vendors.

The appeal is dismissed.

THE HON R B LUSSICK
Chief Justice
(27/03/98)

TEKAIE TENANORA
Magistrate
(27/03/98)

BETERO KAITANGARE
Magistrate
(27/03/98)