Manibwebwe v Ataia [2025] KIHC 44; Land Appeal 02451 of 2024 (29 July 2025)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT LAND APPEAL. CASE NO2 2024-02451

Between: Bwateriki Nabatiku Manibwebwe

Appellant

And Reteta Ataia

Respondent

Date of hearing: 10 June 2025

Date of Judgment: 29 July 2025

Appearances: Ms. Batitea Tekanito for the Appellant

Ms Botika Maitinnara for the Respondent

JUDGMENT ______________________________________________

Brief background of the case

1. The appellant appeals against the Single Magistrate's decision in Betlan 675/22. The case concerned confirming and registering the will of the deceased, Angiruru Nabatiku, in which she disposed of the land, Teabanimate 594e, a co-owned property, to the respondent.
   
2. The late Angiruru Nabatiku, the testator, and the appellants are siblings. The testator was a single woman who raised the respondent as her grandchild when her parent divorced at two years old until the respondent reached 21 years old, when the testator passed away. The testator was related to the respondent’s father as an aunt.
   
3. The land in dispute, Teabanimate 554e, is a family land owned by the testator along with her brothers and sisters. The land is leased by the government, and each sibling receives their own share of the rent.
   
4. Angiruru Bateriki made a Will that her land in Teabanimate 554e must be given to the respondent, and this Will was confirmed in Betlan 675/22. The appellants are not happy with the decision; hence, this appeal is based on the following grounds.
   

Grounds of the appeal

5. a) The Single Magistrate erred in law and in fact in failing to consider material evidence or failure to give proper weight to the appellant’s relevant arguments, which prejudiced the outcome of the case.
   
   2. The will is invalid because the land is held as joint tenants, and under a joint tenancy, the right of survivorship applies; that is, upon death of one joint tenant, interest in the property passes to surviving joint tenants so the decision of the Single Magistrate approving the will is wrong and should be quashed.
      
   100. The deceased could not legally dispose of her share by way of making a will without the consent of the joint tenants, and as the evidence shows, the surviving joint tenants contested the will; the decision approving the will of Angiruru is wrong, and it should be quashed.

Submission for the appellant

6. Counsel for the appellant submits that the land is not the sole property of the testator. It is a family land owned by the appellants and the testator. Section 10 of the Native Lands Ordinance deals with the making of a will, which does not apply to a disposal of land by will because the consent of the other co-owners must be obtained before the land can be disposed of. The magistrate court confirmed the will only because it conforms with the requirement that it was properly witnessed.
   
7. Counsel further argues that the appellants registered their title over the disputed land, together with the testator, after their father in case number NT 35/95. The land is leased, and the respondent received a portion of the testator’s share of the rent. The case NT 35/95 did not involve the distribution of land.
   
8. Teabanimate 554e is a joint tenancy between the appellants and the testator, and the will cannot be valid in that situation. The doctrine of survivorship applies. Although section 10(1) of the Lands Code allows the owner to dispose of her sole property by will only, there is nothing in the Code that permits one of the co-owners to dispose of property held under joint tenancy. Section 11 addresses the right to determine the estate of an owner, but it requires the presence of the owner’s next of kin.
   
9. There is no notice of severance of the joint tenancy or consent from the appellant to the will. Customary law requires mutual consent among co-owners before altering ownership structures.

Submission for the Respondent

10. The appellant argues that an owner cannot give away her interest or share of an undivided family land by will. However, the Single Magistrate considered all the evidence, and he is entitled to reach the decision he made. A will can only be deemed invalid if it does not comply with section 10 of the Lands Code.
    
11. The rule of survivorship does not apply to the land system in Kiribati Wiauea v Rui [2025] KICA 1; Civil Appeal 5 of 24 (14th March 2025). When Angiruru Nabatiku made her will, it did not affect the interests and shares of other co-owners.
    
12. The Single Magistrate, under Section 60 of the Magistrate Courts Ordinance, has the authority to decide cases related to Wills under customary law. Additionally, the late Angiruru Nabatiku and the appellants had already established their legal titles to the land, Teabanimate 554e, in case number NT 35/95.
    

Court’s View

13. We find that the Single Magistrate is entitled to confirm the will of Angiruru Nabatiku because her interest on Teabanimate 554e had been obtained in NT 35/05.
    
14. We also find that the Single Magistrate determined confirmed the will based on the requirement of section 10(1) (Lands Code). This provision is quoted below;

“10. Distribution of an estate decided by will.

ii) If any owner wishes to direct the distribution of his estate after his death, then he should make a will. This may be written on any kind of paper but it is better if he will use the will form kept by the clerk of the court. When he has written the terms of his will then he must sign it in the presence of 2 witnesses who must also sign it. The will be witnessed by 2 persons who are not members of the testator’s family and who are not beneficiaries under the will.”

15. The court may approve an owner’s will to dispose of his property if it complies with the above provision. Here, we find that Angiruru Nabatiku has the right to dispose of her share and interest without affecting other co-owners, as she has already obtained a share in case NT 35/95.
    
16. We also agree with the respondent’s Counsel regarding the relevancy of the case Wiauea v Rui [2025] KICA 1; civil appeal 5 of 24 (14th March 2025), because the rule of survivorship does not apply in the land system in Kiribati. When a co-owner dies, his/her share of the land does not automatically transfer to the surviving co-owners.
    
17. We also consider the respondent’s argument that the family land cannot be disposed of by will without the consent of the next of kin. We think the appellant was referring to section 11 of the Native Lands Code, which states the following,
    

“11. Distribution of an estate where there is no will

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...”

18. We find the above provision irrelevant because it concerns the distribution of the estate of an intestate owner or someone whose will has been canceled, which is not the situation in this case. The provision does not specify methods to invalidate an owner’s will.
    
19. We also look further at other relevant provisions in the Native Lands Code and found section 5 that deals with a gift for nursing, and it specifies the following;
    

“5. A Gift for Nursing

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

20. The minutes indicate that the legal representative of the respondent raised this issue during the hearing below, stating that the will is valid because the respondent received the land as a gift for nursing, as specified in the will itself, and that it aligns with the above provision. The appellants' argument was that they also nursed the testator at some point in time; however, the land cannot be given to the respondent because it is family land that has not been distributed. The minutes further show that the respondent was raised by the testator and started living with her at two years old after her parents divorced until she was 21 when the testator passed away. The respondent’s father is the testator's nephew. Although the magistrate did not consider this provision, it is also relevant as it confirms that land can be disposed of by will as a gift for nursing.
    
21. We do not agree with the appellants' argument that the land cannot be disposed of by will since it is a family land and their consent as co-owners must be obtained before this is done. We believe their interest in the land is not affected by this will because the will only disposes of the testator’s share in the land, and the share of the appellants remains untouched. The issue with the rent is also not affected, as each party can still receive their own share of the rent, just as it was when the testator Angiruru was alive. The magistrate made no error in his judgment.

Order

22. The appeal is not allowed. Therefore, the decision of the Single Magistrate in case Betlan 675/22, delivered on September 15, 2023, is hereby confirmed.

Cost

23. Cost to the respondent to be taxed if not agreed.
    

Hon. Tetiro Semilota Maate Moaniba

Chief Justice

Taibo Tebaobao Arian Arintetaake

Land Panel Magistrate Land Panel Magistrate