Noaa v Mwamwau [2003] KIHC 152; Land Appeal 40 of 2001 (17 November 2003)

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

High Court Land Appeal 40 of 2001

Between:

BUABUA NOAA
Appellant

And:

TANETI MWAMWAU
Respondent

For the Appellant: Mr Aomoro Amten
For the Respondent: Mr John O'Sullivan

Date of Hearing: 17 November 2003

JUDGMENT
(Ex Tempore)

The appellant has two grounds of appeal. The first relates to the validity of the will but the ground was not argued.

The second substantial ground is that the appellant nursed the deceased Tebuangui but was not benefited under the will. The relevant part of S.5(1) of the Native Lands Code:

A gift for nursing may only be given by a will which has been confirmed by the court.

There is no suggestion – this is relevant to S.5(ii) – of a refusal by members of the family to nurse the deceased.

S.5(i) is more than permissive: it is mandatory. The testator did not give the appellant a gift for nursing by will. Even though the appellant may have nursed the testator, the testator did not give to the appellant a gift which was valid.

The appeal must fail and is dismissed.

THE HON ROBIN MILLHOUSE QC
Chief Justice

BETERO KAITANGARE
Magistrate

RARATU IEITA
Magistrate