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Kwong v Baiteke [1997] KIHC 73; Divorce Review 03 of 1997 (14 February 1997)

HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HIGH COURT DIVORCE REVIEW 3/97

BETWEEN:

AFONG KWONG
Petitioner

AND:

TEKIA BAITEKE
Respondent

JUDGMENT ON REVIEW

After reviewing the proceedings in this suit I must say that I cannot understand how the Single Magistrate thought that he was able to pronounce a decree nisi.

Section 5 (1) of the Native Divorce Ordinance Cap. 60 gives a magistrates' court power to hear petitions for the dissolution of marriages between natives when both petitioner and respondent are domiciled in Kiribati and the petitioner is ordinarily resident within the jurisdiction of such court.

It is very clear from this provision that if a marriage is not between natives then a magistrates' court has no jurisdiction to hear a petition for divorce.

The term "native" is defined in the Native Lands Ordnance Cap. 61 as meaning "any aboriginal inhabitant of the Islands and a descendant of any aboriginal inhabitant whether wholly or partly of aboriginal descent, who has not acquired non-native status under the Native Status Ordinance".

In the proceedings now under review the petitioner, Afong Kwong, gave her address as "China" and testified that she was a foreigner and that she wanted to return home. Under no stretch of the imagination could she be held to be a native of Kiribati.

The magistrates' court therefore had no jurisdiction to deal with the petition.

There was another irregularity in the proceedings. In her evidence, the petitioner gave her name as "Afong Kwong". There is no such person mentioned in the Marriage Certificate. The name of the bride is shown there as "Siu Tong". This discrepancy was not even queried in the lower court. Obviously there should have been some evidence that Afong Kwong and Siu Fong were one and the same person.

For the reason I gave earlier, I hold that the decree nisi pronounced by the magistrates' court is ultra vires and is therefore void and of no effect. In lieu thereof I make an order dismissing the petition.

THE HON R B LUSSICK
Chief Justice

(14/02/97)