Atauea v Chairman, Betio Area Committee [2020] KIHC 41; Civil Case 40 of 2017 (11 November 2020)

IN THE HIGH COURT OF KIRIBATI 2020

CIVIL CASE NO. 40 OF 2017

[TERORATI ATAUEA ON BEHALF OF
[ISSUES OF ATAUEA RITERI APPLICANT
[
BETWEEN [AND
[
[CHAIRMAN, BETIO AREA COMMITTEE 1^ST RESPONDENT
[KIAMARO RITERI 2^ND RESPONDENT

Before: The Hon Chief Justice Sir John Muria

27 September 2019

Ms Kiata Kabure for Plaintiff
Mr Monoo Mweretaka for 1^st Respondent
Mr Mantaia Kaongotao for 2^nd Respondent

JUDGMENT

Muria, CJ: By an Originating Summons dated 4 August 2017, the applicant is seeking an order declaring that the respondents have unlawfully divided the House Plot in Temanoku 823r into three plots.

Brief background

2. The house plot in dispute in this case was registered in the name of the applicants’ grandfather, Riteri Atauea (deceased), who was also the second respondent’s father. The plot of land had not been distributed, either before or after the death of the deceased by the Court. The applicants have been living on the same plot of land until the present time.

3. It was in 1992 in Case Number BA 439/92 that an attempt was made by the applicants’ father to have his name registered over the deceased’s plot. The Magistrates’ Court did not grant the applicants’ father’s application. The Court held that all the estates of the deceased Riteri Atauea should remain in the name of the deceased until all his estates were to be ascertained and distributed fairly and equally amongst his children. There was no appeal against the Magistrate’s decision in
CN 439/92.

Methods of distribution of land

4. The Magistrates’ Court in CN 439/92 clearly pointed out the three ways in which land or house plot can be disposed of by the landowner. The first is through distribution by the landowner during his/her lifetime. This is what is sometimes called distribution of an estate inter vivos. This is provided for in section 4 of the Lands Code which states:

“Distribution of an estate and gifts inter vivos

4(i) An owner’s order disposing of his property during his lifetime may be allowed by the court if it complies with this Lands Code”.

5. The second method of distribution of land is by Will. A landowner can dispose of his property by Will. This is done after the death of the landowner. Section 10 of the Lands Code provides for distribution of an estate under Will. Section 10(i) states:

“Distribution of an estate decided by will

10(i) An owner’s will disposing of his property may be allowed by the court if it is in accordance with this Lands Code”.

6. The third way of distribution of land where the landowner dies without a Will or a Will was made but it was not approved by the Court. This is sometimes called intestate, that is a person dies intestate. Section 11 of the Lands Code provides for distribution of the estate of an intestator. Section 11 states:

“Distribution of an estate where there is no will

11. 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”.
    

7. Section 11 then goes on to set out the manner of distribution of the intestator’s properties according to the customs and practices of the particular islands. The distributions are to be approved by the Court.

8. With regard to the properties of the deceased, Riteri Atauea, the applicable method of distributing his estate is the intestate distribution. Also, since the land concerned, Temanoku 823r, is in Tarawa the provisions of section 11(i)(a) of the Lands Code applies as to the manner of distributing the estate of the deceased who died intestate.

Power to distribute estate of the intestator (Riteri Atauea)

9. I need not set out here what section 11(i)(a) requires. Suffice to say that it is the Court which is tasked to oversee and approve the distribution of the estate of the intestator. There is no power in anybody else, including the Betio Area Committee (first respondent) to oversee, conduct or approve, any distribution of an intestator’s estate. Such functions belong to the Court.

10. The problem in the present case arose because the first respondent distributed the deceased’s estate in Temanoku 823r into three plots. To compound the problem, the Magistrates’ Court in
CN 276/03 thought that the Area Committee (first respondent) should have a hand first in dealing with the intestator’s (Riteri Aauea) estate before the Court could consider the matter of distribution of the deceased’s estate. The first respondent’s action in dividing the deceased’s land into three for the three issues of the deceased clearly amount to a distribution of the deceased’s estate. That was clearly outside of the first respondent’s power.

11. Section 33 does not confer any power on the first respondent to deal with the estate of an intestator in such a way as to amount to an act of distribution of a deceased’s estate. The power to conduct and approve distribution of estates of deceased persons is vested in the Court, in the manner set out in sections 4, 10 and 11 of the Lands Code.

12. Section 33 relied on by the first respondent states as follows:

“33(1) Subject to this Ordinance and with the prior approval of the Minister, a council may appoint such town, village or area committees within the area of its authority as it may deem necessary or expedient and may delegate to a committee so appointed, with or without restrictions or conditions as it thinks fit, any power or function exercisable by the council with respect to the area of authority of the town, village or area committee, except the power of making bye-laws, approving annual estimates, levying a rate or borrowing or lending money.

(2) The chairman and the number of members of a town, village or area committee appointed under subsection (1), their term of office and method of selection, and the area within which the committee is to exercise its authority shall be specified by the council”.

13. Those provisions give no colour of power or authority on the first respondent to decide on who should inherit the deceased’s estate or how the estate should be divided. Section 33 clearly gives the first respondent the administrative functions over its areas of authority. That may well include allocations of houseplots. But the power to allocate a houseplot is completely different from the power of the Court to determine as to the right or an entitlement of a person to an estate of a deceased. The latter function is a judicial function which the Lands Code conferred on the Courts, and not on the first respondent.

14. I agree with Ms Kabure of Counsel for the applicants that the first respondent was over-stepping its boundary of powers and functions in this case by dividing up the deceased’s estate into three. It would have been different if the Court determined the distribution of the deceased’s estate first and thereafter the first respondent could deal with the question of allocation of houseplots in accordance with the rights of each of the issues as determined by the Court at the distribution.

15. The argument by Mr Mweretaka that CN 276/03 authorised the first respondent to conduct distribution of the deceased’s estate cannot be sustained. This is because the power to distribute the deceased’s estates is vested in the Court, not on the first respondent. The Magistrates’ Court in CN 276/03 was wrong, if it indeed divested itself of that power and permit the first respondent to conduct distribution of the deceased’s estate.

Conclusion

16. The first respondent clearly acted without any colour of legal authority when it decided to distribute the deceased’s estate by dividing it up among the three issues of the deceased. The decision of the first respondent must be quashed.

Dated the 11^th day of November 2020

SIR JOHN MURIA
Chief Justice