Tabutoa v Viriam [2003] KIHC 149; Land Appeal 15 of 2002 (17 November 2003)

IN THE HIGH COURT OF KIRIBATI
LAND JURISDICTION
HELD AT ONOTOA
REPUBLIC of KIRIBATI

HIGH COURT LAND APPEAL 15 OF 2002

BETWEEN:

KANOAN ERITAIA TABUTOA
REP BY NEI UA ERITAIA
APPELLANTS

AND:

TIMON VIRIAM, KAAI TAKENTEITI,
MEREI MARITINO
RESPONDENTS

FOR THE APPELLANTS: MR JOHN O'SULLIVAN
FOR THE RESPONDENTS: Ms TAOING TAOABA

DATE OF HEARING: 17 NOVEMBER 2003

JUDGMENT
(Ex Tempore)

The decision of the magistrates was based on CN 55/75. That decision in turn depended on a letter written by Eritaia and with which he said his brother, Tanentoa Tabutoa agreed. Tanentoa had not signed the letter.

The Court at the time said it would not act on the letter unless Tanentoa signified in writing his consent. There is no trace that he ever did. Yet the Court did later act on the letter which leads us to believe Tanentoa did consent but that consent is now lost.

Mr O'Sullivan has argued strongly that this Court should not assume Tanentoa ever consented and therefore the decision in this case is wrong being based on the letter which should not have led to the distribution in 1975. We put it to Mr O'Sullivan that there is no more reason to make the assumption which he urges in his clients' favour then it is to make the opposite assumption, that the brother did consent but evidence of the consent has now disappeared. The magistrates were prepared to make the second assumption: we can see no reason to differ from their conclusion.

There has been no submission on appeal that the distribution made is unfair.

The appeal is dismissed.

THE HON ROBIN MILLHOUSE QC
Chief Justice

BETERO KAITANGARE
Magistrate

RARATU IEITA
Magistrate