Bureaua v Ioane [1998] KIHC 70; HCLA 04.98 (16 December 1998)

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

HCLA 4/98

BETWEEN:

NATAUA BUREAUA
BROTHERS & SISTERS
Appellants

AND:

UEARA IOANE
BROTHERS & SISTERS
Respondents

Mr D Lambourne for the Appellants
Mr T Teiwaki for the Respondents

Date of Hearing: 11 December 1998

JUDGMENT

The appellants applied to Single Magistrate Karotu Tiba in case No. 408/87 for an order dividing the land Teaoraereke 793 o/a equally amongst the children of Bureaua. Bureaua had 15 children. The eldest was Ioane, now deceased. The respondents are the children of Ioane. The remaining children of Bureaua, and their children, are the appellants. The subject land represents the inheritance of the children of Bureaua from their father. They were originally registered over Bwebwe 593o, but that land was exchanged for the subject land in 1982. The subject land is currently registered in the name of Ueara Ioane with brothers and sisters and the issues of Bureaua (Ueara Ioane mt mm mk Bureaua).

The Single Magistrate decided against the appellant's claim for equal shares and decided instead to divide the land in two, registering the respondents, as the children of the eldest son Ioane, over the eastern half, and the remaining children over the western half. In doing so, the Single Magistrate applied section 11 of the Lands Code, which sets out the law applicable to the division of an estate where the next-of-kin cannot reach agreement. The relevant provision is section 11(ii) which provides as follows:

11(ii) In the distribution of an estate between the sons and daughters of an owner the shares of the eldest son shall exceed that of his brothers, and the share of sons shall exceed the shares of daughters. If there are no sons then the share of the eldest daughter will exceed that of her sisters.

The appellants do not dispute that Ioane was entitled to a larger share as the eldest son. However, the appellants contend that what the Single Magistrate did in giving the respondents a share equal to the share of the other 14 children was inequitable.

Counsel for the appellants has submitted to us that only 3 of Bureaua's children, i.e. Tooma, Kamangateba and Nataua, had received an inheritance of land on Tarawa, apart from the subject land. It was further submitted that land on Aranuka which formed part of the inheritance, was registered in the name of the respondents, and that there was land on Abemama which had not yet been distributed. However, according to counsel for the respondents, there is still land on Aranuka which remains to be distributed and, as well as the land on Abemama, there are 5 parcels of land in North Tarawa yet to be distributed. There was no evidence given in the lower court regarding the lands mentioned in counsels' submissions, nor is there any evidence before us.

In our view, the decision of the Single Magistrate was a well reasoned one based on the evidence available to him. In arriving at that decision, the Single Magistrate took into account Ioane's entitlement to a larger share in accordance with the law, the number of children, the size of the land, the fact that part of the land had already been sold by one of the other children, and the fact that Ioane had not yet received an extra share as the eldest child.

The appellants' application to the lower court to divide the land equally among them ignored the law applicable to the situation. The appellants left the matter for the lower court to decide and, in doing so, the court was obliged to follow the Lands Code by awarding the eldest son the largest share. Section 11(ii) does not provide a method for determining the size of such share. That question must be decided by the court on the facts of the particular case. In our opinion, the Single Magistrate took all relevant matters into consideration in arriving at his decision, and both the law and the facts entitled him to come to that decision. The appellants have failed to show that the Single Magistrate erred in his application of the Lands Code or that he exceeded his discretion. That being the case, the claim that the decision was unfair becomes a matter of opinion only.

It follows that the appeal must fail and it is accordingly dismissed.

THE HON R B LUSSICK
Chief Justice
(16/12/98)

TEKAIE TENANORA
Magistrate
(16/12/98)

BETERO KAITANGARE
Magistrate
(16/12/98)