[1979] KILR 83

HIGH COURT OF THE GILBERT ISLANDS

Civil Appeal No 10 of 1979

NEI TAOUEA

v

ROAIA TEMATE
AND
TENGA TEBANANA

(O'BRIEN QUINN C.J.)

Betio: 20th July 1979

This judgement is reported only on the question of the devolution upon intestacy of "mangko" and "mwin aine" lands where I-Kiribati custom appears to be silent.

The facts are sufficiently set out in the judgement.

HELD: That having considered the question of the lands being "mangko" and "mwin aine" it appeared that the proper course would be that they should descend generally in the family and not on the female side only as there is no precedent in I-Kiribati custom for such a devolution on intestacy where the "mwin aine" and would have reverted to the deceased mother of the intestate deceased.

Authorities referred to:

Gilbert and Phoenix Islands Land Code (under Cap 21) section 11(v) (b), 11(vii)
South Tarawa Lands Case No 209 of 1948 (Unreported)
South Tarawa Lands Case No 13 of 1948 (Unreported)
South Tarawa Lands Case No 18 of 1962 (Unreported)
South Tarawa Lands Case No 7 of 1972 (Unreported)
South Tarawa Appeal No 17 of 1974 (Unreported)

All parties in person.

O'BRIEN QUINN C.J.:- I delivered judgement in this appeal on 18th December 1978 by saying:

"Accordingly, I must allow the application for leave to appeal and also allow the decision against the decision of the Lands Court Appeals Panel and that of the Senior Magistrate which confirmed it." And "this does not, however, finally dispose of the matter. The two parcels of land, Terawabono 820-e and Towai 813-w are now, once again, part of Nei Aoniba's estate and must be distributed in accordance with the Lands Code. Both Tenga and Roaia lose the parcels of land which the Panel awarded them but, in view of the fact that there is no doubt in my mind that Tenga did nurse Nei Aoniba in her illness and old age and that the majority of those claiming to be next-of-kin of Nei Aoniba did not, Tenga is entitled to a share in the estate of Nei Aoniba that is both Terawabono and Towai as a gift for nursing. Likewise, Roaia, who claims to be one of the next-of-kin of Nei Aoniba is entitled to a share of the estate of Nei Aoniba if he can establish to my satisfaction that he is one of the next-of-kin according to law."

2. I then appointed certain persons as agents of the Court to examine the question of the genealogy of Nei Aoniba but they failed to produce the necessary evidence and I had to seek "family-trees" from the parties and advertise on the Radio for persons to come forward who could assist the Court on the matter.

3. I received four family-trees, that is one from the Appellant, one from Roaia the first Respondent, one from Eritabeta Kake and one from three persons by the names of Nei Arawatake, Emi and Tebaara.

4. On 17th July 1979 I heard evidence in open Court from the Appellant, from Eritabeta kake, from Roaia Temate, from Nei Taara Taberu and from Nei Maria Tekebo all of which evidence was subject to cross-examination by the parties.

5. From the evidence it is clear that Nei Aoniba was the only legitimate child of the marriage of Nei Teariki and Tekai of Marakei and that she had an illegitimate half sister named Nei Kaua who was the daughter of Teariki and Kourabi before Teariki's marriage to Tekai and I so find. It is also clear and without contradiction that both Nei Aoniba and Nei Kaua died without issue. I find these facts to have been proved by the evidence of Nei Taouea, Nei Eritabeta Kake and Nei Taara Taberu which was not contradicted on these points by Roaia Temate. I also find that the parents of Nei Teariki were Kake and Nei Teinabure and this was established by the family-tree presented by Nei Taouea, Nei Eritabeta and Nei Arawatake, Emi and Tebaara and the oral evidence of Nei Taouea and Nei Eritabeta.

6. There was a conflict in the evidence on the question of the children of Kake and Nei Teinabure. While Roaia gave evidence that Nei Teariki (that is Nei Aoniba's mother) had only one sister whose name was Nei Kaetaeta and that she married Tetoaiti from which marriage he was descended, the preponderance of the evidence was that Nei Teariki had no sister called Nei Kaetaeta but that she had only one sister and that her name was Nei Nuea. I listened carefully to the evidence and pursued the family-trees presented, including one purporting, ineffectually, to show that Roaia was not related to Nei Aoniba, and I find beyond any doubt that Nei Teariki did not have a sister named Nei Kaetaeta but that she did have a sister named Nei Nuea.

7. Before going into the relationships any further I must, at this stage, draw attention to a Lands Case heard on South Tarawa on 24th February 1948 numbered No 209/48 in which Mr M M Townsend dealt witty a matter arising out of a case numbered B51-53 of 1923 and held that the parcels of land known as Toai, Temwinako and Temoaniwae were "mwin aine" lands (descending on the female side) and were given to Nei Aoniba by her mother as "mangko" lands (lands received as a dowry) and that they should remain as the property of Nei Aoniba until she died. "E na tiku n arona ni karokoa e bua N. Aoniba. E Kakoaua ana taeka Nabatiku to Kaitira." I read this decision in Court for the benefit of the parties and all seemed to accept it as no objection was raised except that Roaia stated that he could remember that Nabatiku appeared in Court with Ubaitoi concerning the same lands but, unfortunately, there is no minute relating to that Court sitting.

8. The question for decision is: if the lands owned by Nei Aoniba were "mangko" lands and she died intestate how should those lands devolve? The Lands Code is silent on the question except that in section 11(v) (b) it is stated with regard to the distribution of estates of issueless owners that if there are no other issue of his (her) father or mother then the property which he (she) has received from his (her) father will be inherited by the brothers and sisters of his (her) father or their issue and the property received from his (her) mother will be inherited by the brothers and sisters of his (her) mother or their issue. This would mean, in this case, that, as Nei Aoniba received the lands from her mother, Nei Teariki, which is not disputed and is confirmed by Lands Case No 209 of 1948, those lands, if not already lawfully disposed of, would be inherited by the only sister of her mother namely Nei Nuea, as I have found as a fact that Nei Teariki had no other brothers or sisters.

9. However, there is the question of the lands being "mwin aine" as well as being "mangko" and I have tried to find some guidance on the matter. There was something similar in the Micronesian land tradition on Kusaie (which, although not Gilbertese or I-Kiribati, has some similarities) where a gift of land was given to a daughter and her husband on marriage but only the daughter's children could inherit it; such land was called "tuka". This does not help directly but it would seem to be in line with what I have already said above about section 11(v) (b) of the Lands Code, but for the fact that, the lands being "mwin aine", they ought to descend on the female side rather than the male side.

10. If the lands were to descend on the female side, then only the descendants of Nei Tokaua (the only daughter of Nei Nuea) would inherit as the two sons of Nei Nuea i.e. Kake and Kikiteia would be excluded.

11. If the lands were to descend, generally, then the descendants of the three children of Nei Nuea would inherit equally.

12. I have considered both courses and it appears to me that the proper course would be to hold that, even though the lands are "mwin aine", they should descend generally and not on the female side only, as there is no precedent for that in I-Kiribati custom or tradition; the normal practice being for land to descend generally within the family; and I so hold.

13. The position, therefore, is that the two lands Towai 813-w and Terawabono 820-e will be inherited by the descendants of Nevi Tokaua, Kake and Kikiteia equally. I will not cut up the plots of land as section 11(vii) of the Lands Code advises against such a course particularly where the descendants are numerous, as they are here.

14. However, the position of Tenga Tebanana and Roaia Temate must be borne in mind as I stated in the early part of this judgment, and in the judgment given in this appeal on 18th December 1978.

15. On 18th December 1978 I held that Tenga Tebanana was entitled to something as a gift for nursing Nei Aoniba and, accordingly, I now give him a life interest in the plot of land known as Terawabono 820-e while the ownership of that plot of land remains in the descendants of Nei Tokaua, Kake and Kikiteia and should be registered as such. This means that Tenga is entitled to live on the plot for his lifetime only and is not entitled to sell, give away or otherwise dispose permanently of the plot of land but he may lease it on the condition that any rent or other payment due to him as lessor will be paid to him during his lifetime only and will be payable to the true registered owners after his death if the lease still exists. After Tenga's death the true registered owners, i.e. the descendants of Nei Tokaua, Kake and Kikiteia, may move into and use the plot of land Terawabono 820-e, their only obligation being to compensate Tenga Tebanana's heirs for any buildings or crops or trees on the said plot, and to continue any lease of the land that may be in existence.

16. On 18th December 1978 I also held that Roaia Temate was entitled to a share of Nei Aoniba's lands if he could establish that he is one of her next-of-kin according to law. This Roaia has failed to prove. However, he has shown that he looked after Nei Aoniba which is more than the next-of-kin have shown and I award him a life interest in half the rents accruing from the plot of land known as Towai 813-w. This means that Towai 813-w should be registered in the names of the descendants of Nei Tokaua, Kake and Kikiteia and an entry made on the Register that Roaia Temate should be paid half of any rent due from that plot of land during his lifetime, only, and that he be allowed to live on the land or permit his relatives to live on that part of the land now occupied by them only during his lifetime but that on his death the full ownership should go back to the true registered owners who may move onto and use all the land, Towai 813-w, their only obligation being to compensate Roaia Temate's heirs for any buildings, crops or trees on that part of the said plot occupied by them and to continue any lease of the land that may then be in existence on any part of the said plot.

17. Accordingly the gifts of Temoaniwae 825-m to Nei Aoniba Abakori by Case No 13 of 1948 is confirmed; the gift of Temwinako 814-e to Tenga Tebanana by Case No 18 of 1926 is confirmed; but the gift of Terawabono 820-e to Tenga Tebanana by Lands Court Case No 7 of 1973 and Appeal No South Tarawa 17 of 1974 is cancelled and set aside and Terawabono 820-e ordered to be registered in the names of the Descendants of Nei Tokaua, Kake and Kikiteia with a life interest to Tenga Tebanana on the terms set out in this judgment, and the gift to Towai 813-w to Roaia Temate by Appeal No South Tarawa 17 of 1974 is cancelled and set aside and Towai 813-w ordered to be registered in the names of the Descendants of Nei Tokaua, Kake and Kikiteia subject to a life interest in half the rent accruing from the plot being paid to Roaia Temate from the date of this judgment and subject to the other conditions set out above in relation to the said plot.

18. Incidentally, I wish to make a remark about the position of Nei Maria Tekebo, the former wife of Tenga Tebanana, who tried to intervene in this appeal, made an unsuccessful claim against Tenga Tebanana in Magistrates' Court (Lands) Bairiki/Betio Case No 96 of 1978, lost her appeal against him again, not on the grounds originally pleaded, that as she was Tenga's wife at the time he nursed Nei Aoniba she was entitled to some of the land given as "Abani kuakua" (gift for nursing), but on the grounds that a certain land of Nei Aoniba, namely Terawabono, had been willed secretly to her by Nei Aoniba but that the will was destroyed by Baremauri and that Karaiti the Presiding Magistrate of the Magistrates' Court (Lands) told lies in that Nei Aoniba never made a will to other people. I pointed out to her that if she wished she could now raise the question of a share in any property, which Tenga may have rights, in the Magistrates' Court (Lands) Betio/Bairiki but that she may be on weak grounds having regard to the fact that she did not contest any gifts made by Nei Aoniba to Tenga in 1972 or 1974 until 1978 and that she would have to prove the allegations which she made against Baremauri and Karaiti which may not be easy matters to establish at this stage.

19. Finally this Application/Appeal is allowed insofar as the two plots of land Terawabono 820-e and Towai 813-w will now be registered in the names of the Descendants of Nei Tokaua, Kake and Kikiteia and not in the names of Tenga Tebanana and Roaia Temate but Tenga and Roaia will have the life-interests in these lands given by the Court. Any rents or monies solely due to the registered owners from the said lands under this judgment should be paid to Nei Taouea Kaumai on behalf of and for distribution to the other descendants of Nei Tokaua, Kake and Kikiteia.

20. I make no order as to the costs of this Application/Appeal.