IN THE HIGH COURT OF KIRIBATI
Land Appeal Jurisdiction
(South Tarawa)

High Court Land Appeal: 49 of 2021

In the matter between:

ANTEREA IOANE 	 						Appellant
MTMM (with brothers and sisters)

And

IERU IEU									Respondent 

Date of Hearing:	20 February 2025

Counsel:	Ms. Maere Kirata for the Appellants
		Ms. Botika Maitinnara for the Respondent

JUDGMENT
I. INTRODUCTION
1.	This appeal challenges the decision of the single magistrate in BaiLan 338/19, delivered on 31 May 2021, which upheld an alleged oral agreement for the sale of a portion of land Antebuka 768a-r/1a/2 between the respondent and the appellants’ late father, Ioane.  
2.	The appellants, children of the deceased, challenge the decision on four principal grounds:
(i)	the finding of a binding contract was unsupported by admissible evidence;
(ii)	the alleged agreement failed to comply with statutory formalities;
(iii)	the proceedings were procedurally flawed, particularly in the designation of parties; and
(iv)	the doctrine of privity precludes liability of the appellants.
II. PROCEDURAL HISTORY AND RECORD IRREGULARITIES
3.	Before turning to the substantive issues, we must address the troubling inconsistencies in the case record on file.  The operative file appears to be BaiLan 338/19.  However, the judgment refers to BaiLan 338/2009 and BetLan 338/19, neither of which are traceable in the court file.  The final decision is attributed to BaiLan 338/2009, which is unsupported by any records.  
4.	Further confusion arises from multiple adjournments between 2019 and 2021, with unexplained transitions between BaiLan 338/19 and BaiLan 68/18.  Such lapses in record keeping compromise appellate review and judicial transparency.  Judicial integrity demands procedural coherence; its absence undermines public trust and the legitimacy of findings.
III. FACTUAL BACKGROUND
5.	Ioane, the appellants’ father, occupied the disputed portion of the land from the 1980s until his death in 2009.  The respondent alleges that Ioane agreed orally to sell that portion, accepted partial payment, and relocated his house as part performance of the agreement.
6.	The appellants deny any such agreement.  They assert that the relocation was due to health concerns and occurred within the same portion.  There was no written agreement, receipt, or corroborating witness presented.  They argued that the respondent’s claim rests solely on his own testimony and hearsay statements attributed to the deceased.
IV. ISSUES FOR DETERMINATION
7.	The appeal raises four issues:
(a)	Whether the magistrate’s finding of a binding contract was supported by admissible evidence;
(b)	Whether the alleged agreement complied with statutory requirements under the Law of Property Act 1925 and the Native Lands Ordinance;
(c)	Whether the appellants were properly named as parties in the absence of estate administration;
(d)	Whether the doctrine of privity precludes liability of the appellants.
V. ANALYSIS AND DETERMINATION
1. Evidentiary Support
8.	The record indicates that the magistrate inferred a contract existed between the respondent and Ioane from the alleged payments of $3,000, the relocation of Ioane’s house, and the withholding of the respondent’s share of $1,500 by Ioane.  Yet this inference rests solely on the respondent’s oral testimony, unsupported by documentation or witnesses.
9.	For an oral (informal) agreement to be enforceable, three conditions must be met:  
(a)	Evidence relied upon must be admissible and is corroborated proof of mutual assent.   
(b)	 There must be certainty in its terms; that is the terms are clear and definite (see Baird Textile Holdings Ltd v Marks & Spencer plc and RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH).
(c)	Any part performance must, unequivocally, be referrable to the agreement (see Maddison v Alderson).
10.	Having set out the requirements of the three conditions, we now consider them in light of the respondent’s evidence. 
(a)	Evidence: The respondent testified that he withdrew $3,000 from his KPF and gave it to Ioane, who then moved his house back.  Yet no receipt, witness, or documentary corroboration was produced.  Much of his account is hearsay, including statements attributed to Ioane about the $1,500 share from the Onotoa sale.  Under the Evidence Act 2003, such hearsay is inadmissible.  The magistrate erred in admitting this evidence while excluding similar hearsay from the appellants.
(b)	Certainty: The alleged agreement lacks defined terms.  The respondent claimed Ioane asked for $4,000, yet only $3,000 was allegedly paid.  He also relied on Ioane’s withholding of a $1,500 share from the Onotoa sale as “confirmation,” but this is not a contractual term.  No written record of the land portion or timeline for transfer was produced.  So even, assuming partial payment occurred, the absence of defined and clear terms renders the alleged agreement too vague to constitute a binding contract.
(c)	Part Performance: The respondent relied on Ioane’s relocation of his house as part performance.  However, the appellants provided a plausible alternative explanation: the move was due to road dust and occurred within the same portion, not a transfer of possession.  The $1,500 share from the Onotoa sale is likewise ambiguous and not unequivocally referable to a land sale agreement.
11.	On balance, the respondent’s evidence fails all three conditions.  It is inadmissible and uncorroborated, the terms are uncertain, and the acts relied upon are ambiguous.  The magistrate’s finding of a binding agreement was therefore unsustainable.  We therefore agree with Ms. Maere.
2. Statutory Compliance
12.	Kiribati’s legal system comprises customary law, written statutes, and applied UK statutes under the Laws of Kiribati Act 1989 (the “Act”).  Sections 4, 6, and 7 of that Act provide the gateway for the application of UK statutes.  In particular, UK statutes may apply in Kiribati if three conditions are satisfied:
(i)	  Temporal condition – the statute was in force in England on 12 July 1979 (the date of independence).
(ii)	Consistency condition – the statute is not inconsistent with the Constitution or local statutes.
(iii)	Appropriateness condition – the statute is suitable to local circumstances.
13.	The Law of Property Act 1925 (the “UK Act”) governs contracts for the sale or disposition of land, legal and equitable interests and requirements for enforceability of land agreements.  We are of the view that the UK Act meets all three conditions as it was in force at independence, it is consistent with the Constitution or Kiribati’s property laws and is appropriate to local circumstances.
14.	Section 40(1) of the UK Act provides:
“No action may be brought upon any contract for the sale or other disposition of land or any interest in land unless the agreement... is in writing and signed by the party to be charged...”
15.	This provision is mandatory and applies to any disposition of land, including informal agreements between family members.  Its rationale is to prevent disputes over oral arrangements and to protect both parties by requiring documentary proof.
16.	Our Native Lands Ordinance (the “Ordinance”) governs native land ownership and registration in Kiribati.  The key principles of this Ordinance include: 
(a)	Indefensibility of title: Once title is registered, it is secure and cannot be challenged without due process.
(b)	Restriction on sale/transfer: Native land cannot be sold or transferred without proper registration and approval.
(c)	Requirement for written documentation: Transfers, leases, or agreements involving native land must be documented and registered.
17.	In our view, and in the absence of evidence to the contrary, these key principles align with the UK Act and reinforces the need for written agreements in land transactions.  We are also of the view that the UK Act does not offend the three conditions (as mentioned in paragraph 12 above); rather it supplements and complements our property law, and hence we find it applicable.  We agree with Ms. Maere.
18.	Applying section 40(1), the alleged agreement, if there is any, fails the stipulated requirement:
(a)	as it was not written, 
(b)	no receipt or proof of purchase, and
(c)	there is no approval nor registration of transfer existed.  
19.	Even if we are wrong in finding that the UK Act is applicable, section 14 of the Lands Code (the Code) under the Ordinance provides that:
“An owner may sell a land, a pit or a fishpond if his next-of-kin agree and the court, having considered the matter, approve. Before reaching its decision, the court should first consider if the lands remaining to the owner after the sale are sufficient for him and his children.”
20.	This provision reflects a family‑protection principle: land is not merely an individual asset but a communal inheritance.  The law requires unanimous consent of the next‑of‑kin and judicial approval before any sale can be validated. 
21.	The Court of Appeal in Timi v Tong underscored this safeguard:
“It is quite apparent from the words of that section that the validity of a sale of land depends upon the next-of-kin.  If it does not appear that the next-of-kin have agreed, the magistrates ought not to approve of the sale.”
22.	The case above and other subsequent cases makes clear that next‑of‑kin consent is not a procedural formality but a substantive condition precedent to validity.  Without it, any purported sale is void.  
23.	Section 14 of the Code is applicable because the respondent’s case stemmed from an allege contract for the sale of land (or interest therein).  Although section 14 was not argued, it is the duty of the court to consider it.  Not only it is a statutory requirement but one that is mandatory and hence, it must be taken into consideration every time a court deals with a sale (of land).
24.	Hence, for the respondent’s purchase to be approved and confirmed by the single magistrate, the next-of-kin of the late Ioane, who are his children (namely the appellants), must concede first.  There is no evidence that the single magistrate gave due regard to or sought the consent of the children.  On the contrary, there is evidence of the consistent opposition by the appellants against the respondent’s case from the outset.  
25.	Thus, even if the respondent’s evidence were accepted, the alleged agreement would still fail under section 14 of the Lands Code.  The absence of next‑of‑kin consent and court approval renders the purported sale legally ineffective.  The single magistrate did not address this mandatory statutory requirement.  This omission is material and renders the decision unsustainable.
3. Procedural Irregularities
26.	This Court notes that the appellants were sued because their father, Ioane, had died.  They were sued in their capacity (or standing) as children of the deceased.  
27.	The law is that, upon the death of a person, his/her estate became subject to administration.  Rule 3(2)(c) provides:
“The administrator may-
(a)	..
(b)	..
(c) on behalf of any estate of which he is administrator bring and maintain any suit in any court of competent jurisdiction and likewise defend any suit; but the administrator shall in no case be personally liable as a defendant in any such suit.”
28.	The above Rule clearly states that only the administrator can sue or be sued on behalf of the estate.  
29.	Nonetheless, it is clear from the records that the appellants appear as children of the deceased; not as administrators.  Proceeding without proper parties constitutes an abuse of process and raises jurisdictional concerns.  The single magistrate’s decision against the appellants therefore cannot stand.
4. Privity of Contract
30.	There is no dispute that the alleged agreement, if there is any, is between the respondent and the appellants’ father, who is deceased.  
31.	Under contract law and principles, only parties to a contract are bound by its terms; meaning, they can sue or be sued upon it.  This is the doctrine of privity, which has been affirmed in many cases.
32.	In Beswick v Beswick [1968] AC 58, the court found that the widow cannot enforce a contract which was made between her late husband and his nephew as she was not a party to such, but was able to do so as an administratrix of her late husband’s estates.  The case underscores the principle that only parties to a contract can sue to enforce its terms, unless a non-party is the estate representative who then can enforce a contract posthumously.
33.	In Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847 the relevant core principle is that only a party to a contract can enforce it; in other words, it precludes enforcement of contractual obligations against non-parties.
34.	The appellants were not party to the agreement and were not sued as estate representatives.  To impose liability upon them erodes a foundational principle of contract law (see Beswick and Dunlop).  We therefore agree with Ms. Maere that the single magistrate erred in naming them as defendants.
VI. CONCLUSION
35.	The magistrate’s decision was based on inadmissible and insufficient evidence, failed statutory safeguards, and jurisdictional error.  Judicial legitimacy rests on procedural clarity, evidentiary integrity, and statutory compliance.  Where these requirements are not met, appellate intervention is required.  
VII. ORDERS
1.	The decision in BaiLan 338/2019 is hereby set aside.
2.	The appeal is allowed.
3.	The appellants are entitled to cost; to be taxed if not agreed.
It is so ordered.
Dated this 19th day of December 2025.

	HON. AOMORO T. AMTEN
JUDGE
		
TITAN TAOKAI
Land Magistrate Appeal Panelist		RITETI MANINRAKA
Land Magistrate Appeal Panelist