Tebano v Keangimawa [2012] KIHC 14; Civil Case 147 of 2010 (6 June 2012)

IN THE HIGH COURT OF KIRIBATI

CIVIL CASE NO. 147 OF 2010

BETWEEN

KEANGIMAWA TEBANO
APPLICANT

AND

NEI TEMAROITI KEANGIMAWA
1ST RESPONDENT

ATTORNEY GENERAL IRO LANDS
COURT, NONOUTI
2ND RESPONDENT

Before: Hon Chief Justice Sir John Muria

6 June 2012

Mr Banuera Berina for Applicant
Ms Taoing Taoaba for 1st Respondent
Mr Monoo Mweretaka for 2nd Respondent

JUDGMENT

Muria CJ: The applicant, having been granted leave, now comes to the Court, seeking an order to quash the decision of the Magistrates' Court, Nonouti in CN 29/95 which ordered that the first respondent registered her name over the Land Tarawa 294/62 (3n).

The brief background circumstances of the case are that the applicant is the first respondent's natural father. The deceased, Teikauea Tebano was the applicant's father and the first respondent's grandfather. In his old age and until he passed away, the deceased was nursed and cared for by the first respondent.

He owned a number of lands, one of which is Tarawa 294/62 (3n) or referred to as "Tarawa 3n" in Nonouti. In return for the nursing care shown to him by the first respondent, the deceased willed her one land namely Tarawa 3n. In 1995 the first respondent applied to the Magistrates' Court Nonouti in CN 29/95 to transfer the Land Tarawa 3n to her name. The Magistrates' Court granted her the order.

In 2002, the applicant applied to the Magistrates' Court Nonouti to register his name over all the lands owned by the deceased. One of those lands was Tarawa 3n. The Court record shows that the Land Tarawa 3n, and the other lands owned by the deceased, were all registered in the name of the applicant.

Reading the affidavits and hearing Counsel for the parties in this case, it became clear that there has been no dispute to the fact the first respondent nursed and cared for the deceased. It is also clear that the deceased made a 'Will' (Exhibit B to the applicant's affidavit sworn to on 6 October 2010). It is also not disputed that the Magistrates' Court made a decision in CN 29/95 granting the land in Tarawa 3n to the first respondent.

On the other hand it is also clear that the applicant registered all the deceased's lands, including Tarawa 3n, in his name pursuant to CN 66/02. The lands register of Nonouti confirms that. See Exhibit "A" to the applicant's affidavit of 6 October 2010.

It appears to the Court that the gist of the applicant's case in this application is contained in paragraph 15 of his affidavit where he deposed as follows:-

"15. Unless the decision in Case Number 29/95 were quashed I shall suffer grave injustice as I would then lose a land to my daughter who has a duty to take care of me before she could inherit any of the lands which I would have inherited from my father. I would lose that land without any opportunity being given to me to challenge the purported will of my father".

The prejudice which the applicant says he would suffer is the fact that he would lose the one land in question to his daughter (first respondent) who has the duty to care for him before she could inherit any of the lands he would have inherited from his father (deceased). Reading between the lines of what the applicant says in paragraph 15 (above), I cannot detect any inclination by the applicant (father) of depriving his daughter (first respondent) of inheriting any land he has. The complaint really boils down to the fact that the deceased gave the land to the first respondent.

Viewing the action of the deceased in this case, section 5 of the Native Lands Code, relied on by Ms Taoaba, would clearly support the deceased's action. Section 5(i) and (iii) state:

"5(i) A gift for nursing may only be given by a will which has been confirmed by the Court of if it is satisfied that the deceased made no will because he was prevented from so doing, or he was incapable of making one.

...............

5(iii) A gift for nursing shall not exceed one land and one pit if the donor's family nurse him, but if a stranger nurses him, or only one of his family, and the others refuse to do so, then the gift may be increased".

Given the position as stated in paragraph 15 of the applicant's affidavit that his daughter could still inherit "any of the lands" which he would have inherited from his father (the deceased) and one of which is Tarawa 3n, it would be difficult to simply brush aside the deceased's gift to the first respondent, especially as it had the support of a statutory provision.

The second point pressed by the applicant is the fact that he had no opportunity to challenge the will made by the deceased and by which the land Tarawa 3n was given to the first respondent. The submission by Mr Berina of Counsel for the applicant is that the applicant was deprived of his right to be heard or given an opportunity to challenge the Will of the deceased. Counsel relied on the provision of section 11 of the Native Lands Code. That section says:-

"The estate of an intestate owner or of an owner whose will has been stopped will only be settled when his next-of-kin or their representatives are present. If the next-of-kin can agree upon a distribution then this may be approved by the Court. If no agreement can be reached then the estate will be divided as shown below".

In the Court's view this provision does not help the applicant. This section is concerned with distribution of an estate where there is no will and there is no agreement reached as to the distribution of the estate. That is not the case here.

Further, the argument that there was a breach of the rule of natural justice, in this case, is weakened by the fact that the deceased action was a gift supported by statute. A gift written on paper or tablet is still a gift. The rule of natural justice seldom applies in gift giving. It would have been different if it was a case of distribution of estate where the interests of other persons have to be considered. That is not the case here.

In the circumstances of this case, I feel that the decision of the Magistrates' Court Nonouti in CN 29/95 cannot be faulted and the application to quash it is refused.

Dated the 6th day of June 2012

SIR JOHN MURIA
Chief Justice