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Bakati v Tearoua [1999] KIHC 10; HCLA 073.97 (19 February 1999)

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

HCLA 73/97

BETWEEN:

TERETIA BAKATI
Appellant

AND:

AKAKA TEAROUA
Respondent

Mr D Lambourne for the Appellant
Mr T Teiwaki for the Respondent

Date of Hearing: 5 February 1999

JUDGMENT

There being no objection to the appellant's application for leave to appeal out of time, such leave is granted.

In 1981 the appellant leased her land at Eita to the respondent and went to the magistrates' court for approval of the lease as required by section 11 of the Native Lands Code Cap. 61. Under subsection (2) of that section the court was required to be satisfied of a number of things, including that the terms and conditions of the lease are fair both to the lessor and lessee. No terms and conditions were put before the magistrates. The court asked just one question: "For how long?" (referring to the term of the lease). The appellant as lessor replied: "As long as she wants". The magistrates' court then approved the lease.

15 years later, in case no. 537/96, the appellant applied to the magistrates' court for an order evicting the respondent. She gave evidence in that case that she had agreed to the lease after the respondent's husband had told her that he would not be staying long as he planned to return to his home island of Tabiteuea South. However, the husband had since died and she wanted her land back. The Single Magistrate hearing the case refused the appellant's claim on the basis that, under the lease, the respondent was free to stay on the appellant's land for as long as she wants.

That decision is now appealed on the ground that the Single Magistrate erred in law in upholding a lease which did not comply with the requirements of the Native Lands Ordinance (Cap. 61) and was therefore invalid.

The respondent continues to occupy the appellant's land.

It is trite law that it is essential for a lease to specify the period during which the lease is to endure, and the beginning and end of the term. The term must have a certain beginning and a certain ending. Where a termination date is expressed to be "as long as the lessee wants" (as in the present case) it is conceivable that the lessor might never regain possession. In the event, such a transaction, if allowed to stand, would not be a lease but would, in effect, be a conveyance of the lessor's whole interest in the land.

There can be no question that a lease is void if the date of its termination remains uncertain after it has taken effect. It was accordingly held by the Court of Appeal in Lace v Chandler (1944) 1 All E.R. 305, for instance, that an agreement to let a house for the duration of the war did not create a valid leasehold interest. Lord Greene M.R., expressed the following view which, in our opinion, applies equally to the issue in the present case:

"A term created by a leasehold tenancy agreement must be a term which is either expressed with certainty and specifically, or is expressed by reference to something which can, at the time when the lease takes effect, be looked to as a certain ascertainment of what the term is meant to be. In the present case, when this tenancy agreement took effect, the term was completely uncertain. It was impossible to say how long the tenancy would endure".

It has been argued on behalf of the respondent that the difficulty could be overcome by construing the term as 21 years, which is the maximum term for a native lease. In our opinion, it is not possible to construe such a meaning from the words "as long as she wants".

In our judgment, the agreement between the appellant and respondent in 1981 was void as a lease. The magistrates' court which approved it was obviously unaware of the court's responsibilities under the Native Lands Ordinance. The purported lease satisfied neither the requirements of the Ordinance nor of the common law. In the circumstances, the fact that the magistrates' court approved of the agreement could not create a good leasehold interest where none existed. We are therefore of the view that the Single Magistrate fell into error when he held that the 1981 decision left the respondent with what was virtually a perpetual right to possession of the appellant's land. That decision cannot be allowed to stand.

In our view, the void lease created a mere tenancy at will. Even though possession was made determinable at the will of the respondent, by implication it was also determinable at the will of the appellant, since a tenancy at will must be at the will of both parties. (Wheeler v. Mercer [1956] UKHL 5; (1956) 3 All E.R. 631 at 634 per Lord Simons).

Counsel for the appellant has asked for an eviction order allowing the respondent 3 months to vacate, and we consider that to be reasonable notice.

We make the following orders:

1. The appeal is allowed.
   
2. The decision of the Single Magistrate in case no. 537/96 is set aside.
   
3. The eviction order sought by the appellant is granted.
   
4. The respondent is ordered to vacate the appellant's land on or before Thursday 20 May 1999.
   

THE HON R B LUSSICK
Chief Justice
(19/02/99)

TEKAIE TENANORA
Magistrate
(19/02/99)

BETERO KAITANGARE
Magistrate
(19/02/99)