Tebano v Keangimawa [2012] KICA 1; Civil Appeal 10 of 2012 (15 August 2012)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Civil Appeal No. 10 of 2012

BETWEEN

KEANGIMAWA TEBANO
APPELLANT

AND

TEMAROITI KEANGIMAWA
1ST RESPONDENT

ATTORNEY-GENERAL IRO LANDS
COURT OF NONOUTI
2ND RESPONDENT

Before: Paterson JA
Williams JA
Barker JA

Counsel: Banuera Berina for appellant
Taoing Taoaba for 1st respondent

Date of Hearing: 14 August 2012
Date of Judgment: 15 August 2012

JUDGMENT OF THE COURT

1. The appellant having been granted leave seeks an order by way of certiorari to quash a decision of the Magistrates' Court at Nonouti whereby in matter No. 29/95, the Court ordered that the land in question be registered in the name of the first respondent.
   
2. The appellant is the father of the first respondent who obtained registration based on the will of her grandfather who is now deceased. This will, if valid, gave a gift of nursing to the first respondent. Such a gift is permitted under s.5 of the Native Lands Code.
   
3. The appellant was not given notice of the Magistrates' Court hearing in 1995. He says that if he had been he would have challenged the will because it has been altered without the alteration being initialled and the signature is indistinct.
   
4. The Chief Justice dismissed the application on various grounds including the fact that any breach of natural justice is weakened by the fact that the gift is supported by statute.
   
5. A copy of the will is exhibited to an affidavit of the appellant. It appears that the appellant has been denied of his right to be heard in opposition to the will which on the face of it may be subject to a challenge.
   
6. A person such as the appellant, who would be the beneficiary if the will is set aside, is denied natural justice if he is not given an opportunity to challenge the will. The appellant was not given that right as he was not advised of the Magistrates' Court hearing.
   
7. With respect to the Chief Justice this Court is of the view that the breach of natural justice is such that the decision of the Magistrates' Court should be set aside. The appellant and the first respondent will then be able to make submissions on the validity of the will.
   
8. There will be an order that the appeal be allowed. The decision of the Magistrates in case No. 29/95 is set aside. The first respondent will pay the appellant's costs and in default of agreement to be fixed by the Registrar.
   

Paterson JA

Williams JA

Barker JA