Tebanna v Tebanna [2021] KICA 8; Land Appeal 4 of 2019 (1 December 2021)

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

Land Appeal No. 4 of 2019

BETWEEN	BWEBWE HUXTABLE TEBANNA, RETITA KARAINGING, KABWAKI KARAINGING,
	TEBUANNA KARAINGING	APPELLANTS
AND	TEITENGAUN TEBANNA	RESPONDENT
Hearing:	24 November 2021
Before:	Blanchard JA Hansen JA Heath JA
Counsel:	Ms M Kirata for Appellant Ms K Kabure for Respondent
Judgment:	1st December 2021

JUDGMENT OF THE COURT

The appeal

[1] This appeal concerns land on Tabiteuea South, known as Anikarawa 870-1 (the Anikarawa land). It raises important questions about how land causes should be commenced and served. The appellants assert that they did not receive adequate notice of an application to distribute the deceased's lands, and were prejudiced by orders made in their absence. it is said that amounted to a breach cf the principles of natural justice.

Family relationships

[2] To understand the circumstances in which the probiem has arisen, it is necessary to explain the family relationships involved.

[3] The Anikarawa land was one of 14 pieces of iand that were owned by Tebanna Tebuabua (the deceased) at the time of his death, on 21 October 1997. The deceased's wife, Teinguntaake Kabwaki (Teinguntaake) had died earlier, on 23 Juiy 1990. Leaving to one side, for the moment, a question of paternity in relation to one of the sons, the couple had seven children who, personally or through their issue, were entitled to share in the lands owned by the deceased at the time of his death.

[4] The eldest son was Tongoun Tebanna (Tongoun). Tongoun died, on 17 September 1998, about one year after his father. Teitengaun was the second son. He was followed, in order of birth, by Bwebwe Huxtable Tebanna (Bwebwe), Terengaun Tebanna (Terengaun), Karainging Tebanna (Karainging), Teaeua Tebanna (Teaeua) and Teera Tebanna (Teera).

Teera died on 9 July 1997, while Karainging passed away on 12 October 2006.
Background

[5] In 2018, some 21 years after his father's death, Teitengaun made an "application" to the Magistrates' Court at Tabiteuea South for an order distributing lands owned by the deceased among his issue. The Court made an order on 12 April 2019 (the distribution order). The Anikarawa land was one of the plots that was the subject of the distribution order. Shares in the Anikarawa land were distributed to Teitengaun, Teaeua and the issue of both Tongoun and Karainging. The other living children and the issue of those who had died received interests in other land that the deceased owned, as did those who succeeded to the Anikarawa land.

[6] Bwebwe and Kairainging's issue were not present when the distribution order was made. When they became aware of it, they challenged its making in the High Court. The principal ground of appeal was that Bwebwe and Karainging's issue had not been properly served with the "application" and were unaware that the hearing in the Magistrates' Court was taking place.

[7] The High Court appeal was heard by Muria CJ, sitting with two Land Appeal Magistrates. The appeal was dismissed. As a matter of law the Chief Justice held that a radio broadcast issued by the Acting Court Clerk of the Magistrates' Court constituted valid service of the application. As a result, the High Court held that there was no breach of the principles of natural justice and the appellants were not entitled to have the proceeding reopened. He was joined by the Land Appeal Magistrates in deciding against the appellants on substantive points that they wished to raise, if a re-hearing were ordered.

[8] Bwebwe and issue of Karainging now appeal to this Court against the High Court's decision. They pursue the appeal on the service point. in doing so, they have reiterated the nature of the substantive arguments that they say would have been made in the Magistrates' Court, had they had a proper opportunity to put them.

The Magistrates' Court proceeding

[9] We have constructed our summary of what happened in the Magistrates' Court by reference to an affidavit sworn by Teitengaun in support of the present appeal, the record of proceedings in the Magistrates' Court, and some information provided by counsel for the parties during the course of oral argument. We endeavour to set out what occurred in chronological sequence, and to indicate the source of the information on which we rely.

[10] In September 2018, Teitengaun (who lived on South Tarawa) met with issue of both his late brother, Tongoun, and a younger sister, Teera, to discuss distribution of their late father's estate. Those discussions lead to letters of support being signed by some family members. Although we will refer to those letters to explain background events, it is not altogether clear whether they were before the Magistrates' Court when the distribution order was made.
[11] It is common ground that no written application was made to the Magistrates' Court. Based on what we were told by Ms Kabure, for Teitengaun, it appears that Teitengaun went to a Magistrates' Court in South Tarawa and indicated to an official the nature of a distribution application that he wished to make. On the basis of that discussion, the Court Clerk, on 10 October 2018, issued an "advertisement", directed to the deceased's living children and the issue of those who had died:

To the issues of Tebwana and Teinguntaake from where you are resided

• 1) Issues of Tengoun Tebwana
• 2) Issues of Teera Tebwana
• 3) Issues of Karainging Tebwana
• 4) Bwebwe Tebwana
• 5) Tengangai Tebwana
• 6) And lastly, Teaeua Tebwana

You are hereby requested in this advertisement that you attend your Land Jurisdiction Court at Teobokoa, on Friday the 31/12/18 for the matter of the distribution after Tebwana Tebubua and Teinguntaake Kabwaki. You are hereby requested to inform those in this advertisement that are not aware of the advertisement by those who are aware.

[12] Teitengaun deposes that, at the direction of the Court, he paid the cost of the advertisement. There is no evidence to establish whether or not this advertisement was published in a newspaper, or any similar publication.

[13] On or about 12 October 2018, a letter was provided by Kakoroa Tongoun, on behalf of issue of Tongoun in support of Teitengaun's claim. The letter is headed: "Re: Teitengaun for the distribution of Tongoun Correctly, Tongoun, in the letter, is referred to as the deceased's eldest brother. Although Tongoun had died in 1 998, his issue who signed the letter asked for the Anikarawa land "to be placed under our father's possession". They went on to say that they had "agreed on the construction of the Kiribati Protestant Church on [the Anikarawa land] on the west side of the road. However, the letter ended by saying:

And for your information, lastly, from us, the issues of Tongoun . have kindly asked that Teitengaun the brother of our father, to be placed responsible for looking after our distribution since he is the eldest after our father".

[14] On or about 29 October 201 8, the Acting Court Clerk caused a radio message to be broadcast in the following terms:

To all issues of Tebwana and Teitengaun wherever they may be, issues of Tongoun Tebwana, issues of Teera issues of Karainging Bwebwe Tebwana, Tengngai Tebwana and Teaeua Tebwana. You are requested in this advertisement to attend your land case hearing which will be held at Teobokia on Friday 31 of December 2018 at 10am in the morning for the land distribution after the late Tebwana Tebubua and Teinguntaake Kabwaki. A request is made to those who are listening to this transmission to convey the message to these people if they are not listening.

[15] We were told that the broadcast was made by a radio station in South Tarawa but broadcast throughout Kiribati on about three occasions. There is no evidence of any judicial direction for the Acting Court Clerk to cause the broadcast to be made. While both Ms Kirata, for the appellants, and Ms Kabure helpfully confirmed that it was common practice for service to be effected by radio message in land causes, Ms Kirata submitted that service in that form always required leave of the Court.

[16] The office of "Clerk of Court" was created by s 12 of the Magistrates' Courts' Ordinance. Relevantly, for present purposes, s 12(2)(a), (b) and (c) define the Clerk's functions as administrative in nature. We hold that the Acting Court Clerk's decision to broadcast the radio message did not amount to a judicial direction for substituted service.

[17] On 27 November 2018, five of Teera's issue wrote to the court to support Teitengaun's application. After some introductory words, they continued:

We are delighted to write this letter stating the approval from our behalf, the issues of Teera , for our uncle, Teitengaun . , to appear on our behalf to the court as we are unable to attend the court that will be held there.

[18] A hearing took place on 31 December 2018. The intitulment to the minute of that hearing describes it as an "ex parte application". It refers to the applicant as "Teitengaun Tebwana MTMM", denoting that the application was brought on behalf of the named applicant and his brothers and sisters. The minute described the nature of the matter before the Court as:

Matter: Distribution after Tebwana Tebubua and Teinguntake Kabwaki.

[19] The Magistrates' Court, comprising three Magistrates, explained the further information that Teitengaun was to provide before an order was made:

The Court has informed Teitengaun to provide all documents needed for his case such as the death certificate for his deceased brothers and sisters including [the deceased] and Teinguntake. It is an ongoing case but upon receipt of the death register for those mentioned above, [Teitengaun] must inform the Court Clerk and the case would be heard again.
Case adjourned.

[20] On 1 March 2019, Teaeua appears to have written to the Court, referring to the letter from Tongoun's issue. Among other things, the letter states that:

I request for your help as shown in Kakoroa Tongoun's letter stating the placement of the land Anikarawa to be their father's share, Tongoun. Please your worship, it seems to be that we will not have any share that is why we are requesting your help for our problem and I will not accept or deny Kakoroa Tongoun's letter. We, the issues of [the deceased and his wife] have decided on the land of the eldest to be resided at te kaina from our mother in the scrublands and therefore we seek your help, your worships.
The second thing is, the distribution between us, the issues of [the deceased], have left the responsibility of distributing the land to Teitengaun where [he] will distribute it on my behalf. I also request your worships, that you help Teitengaun Tebana in this. That is all, thank you for your help.

[21] The distribution hearing resumed on 12 April 2019. No notice (whether personal, by advertisement or through broadcast) of that date of hearing was given to anyone who had not attended the Court on 31 December 2018. The April hearing took place before five Magistrates. A revised translation of what occurred at the hearing was provided to us shortly before the appeal was heard. In its entirety, the evidence has been translated as follows:

Matter: Wanting a distribution after Tebaana
Ct-
DSOB: Teitengaun Tebaan. M/53+ years.
I appear before you, Your Worships, regarding the distribution, myself and brothers and sisters, all documents are before you, just for this.
XXD by Ct:
Q: Would you like the court to do it for you or you would do it?
A: We want the Court to do it for us otherwise my siblings might think that I am being fraudulent given that I am the only one present.
Q: We will need your family tree from Tebana and Teinguntaake.
Q: Did Tebana have any other spouse?
Q: All issues of Tebaana are here?
A: No, Karainging, Tengangai and Bwebwe.
Q: They didn't communicate any words to you?
A: No
Q: Nil
(Emphasis added)

[22] In a judgment recorded as part of the Minute, the Magistrates divided 14 pieces of land, some of it leased, among the deceased's family. Bwebwe and the issue of Karainging received shares in some of those lands. However, as previously indicated, the Anikarawa land was divided among the issue of Tongoun, Teitengaun, the issue of Karainging and Teaeua.

[23] It appears that Bwebwe and Karainging's issue learnt of the orders at some time between 12 April 2019 and 7 June 2019, after Teitengaun had filed an application to have a boundary for the Anikarawa land fixed, to enable the Kiribati Protestant Church to build on his share of the Anikarawa land. They did not believe that Teitengaun had the right to share in the Anikarawa land.

[24] On that occasion, Bwebwe and Karainging's issue did appear. They sought an adjournment to appeal the distribution order. Their challenge to the orders was filed in the High Court on 6 June 2019. On 7 June 2019, a Single Magistrate issued a temporary order to prevent development of the Anikarawa land pending determination of the High Court appeal.

That order has been translated as follows:

After the proceeding of the court, both parties from each side have been ordered to discontinue any development to the land Anikarawa 870-1 commencing from the date 07/6/19 till the end. The ordered has been enforced that if any of the two parties does not comply with this order will be punished.

[25] A further application was made by Bwehwe and Karainging's issue and heard by the Magistrates' Court on 20 October 2020. This application was to prevent the Kiribati Protestant Church from taking steps to develop the Anikarawa land, by building its maneaba. That application was made on the basis (among other things) that the appeal to the High Court had not been determined. Evidence was given that, on 19 October 2020, between 9.00am and 4.00pm, Teitengaun had "led members of the [Kiribati Protestant Church] to build a maneaba on the [Anikarawa land] which is the disputed place". The five Magistrates who heard the applicant ruled:

As it is the Court's responsibility to order peace among individuals and any existing entities, it grants the application as it has been stated earlier in the previous proceedings on 31 December 2019, it was for the purpose of maintaining peace. Therefore, this Court makes an order to the party who is making developments on the [Anikarawa land]. This is confirmed.

The High Court appeal

[26] In the High Court, both Bwebwe and Karainging's issue complained that the Magistrates' Court's distribution order had been made ex parte. In ruling on that legal point, the Chief Justice considered that notice had, in fact, been given to all potentially affected issue of the deceased. He held that service had been effected validly on the appellants, "including service by radio message to all issues of [the deceased] and Teinguntaake".

[27] The Chief Justice observed:

5. The radio service message was for hearing on 31 December 2018. When the case was called on 31 December 2018, [Teitengaun] was asked to produce the necessary documents from the Entries in the Death Register relevant to his brothers and sisters. The case was adjourned to 12 April 2019.
6. When the case resumed on 12 April 2019, copies of the necessary documents were submitted to the Court by [Teitengaun]. Not only that certified copies of the Entries in the Death Register were produced, letters of consent from the other brothers and sisters were also given to the Court. Clearly service by way of radio message was received by the other issues although some did not respond.
7. In the circumstances of the case, the case cannot be properly regarded as an ex parte matter. All parties who were interested in the distribution of the late Tebaana's property had been notified and served with notices to attend Court. They were all parties to the case and their means to challenge the Magistrates' Court decision is by way of an appeal, not judicial review.

[28] As a result of the High Court's finding that service had been validly effected, the appellants lost their ability to advance submissions to challenge the distribution order on two substantive grounds that they wish to advance, namely:

(a) Teitengaun had no right to succeed to the deceased's land because the deceased was not Teitengaun's biological father.
(b) That, during his lifetime, the deceased had expressed a wish that the Anikarawa land pass to Kairainging and his issue.

The natural justice point

[29] Before we consider whether service of the distribution application was validly effected, we explain why service is so fundamental to the proper workings of any Court system.

[30] It is a basic principle of law that, before making orders that will affect others, a Court must ensure any potential opposing party has an appropriate opportunity to be heard. This is known as the audi alteram pattern principle. It is a fundamental rule of natural justice. Orders made without hearing from parties who might be affected adversely by them are made only in exceptional circumstances, and usually on an interim basis. Final orders made on an ex parte basis carry a substantial risk of causing a miscarriage of justice. Judges can only know what orders are appropriate if they have all relevant facts and legal arguments put before them for consideration, by all affected parties. ^[1]

[31] The fundamental nature of the obligation to hear both sides before making a decision is reinforced by the principles that apply when an application is made to set aside a judgment obtained following irregular (or no) service. Although there remains a residual discretion for the Court to allow such a judgment to stand, the general rule is that it must be set aside to enable the merits to be properly assessed by the relevant Court. As the Court of Appeal of

New Zealand has recently said, in EA v Rennie Cox Lawyers: ^[2]

[20] In summary, where a judgment has been irregularly obtained, there will almost always be a miscarriage of justice such that the judgment should be set aside without considering the merits. However, that is not an inflexible rule that must be applied in every case, regardless of the circumstances. There may be cases where the irregularity in obtaining the judgment was so minor and inconsequential that it could not have caused prejudice and there is no arguable defence. If the court can safely conclude that there is no risk of a miscarriage of justice, it might properly decline to set aside the judgment.

[32] We analyse the natural justice point under two headings:

(a) Was service validly effected?
(b) If not, are there any grounds on which the residual discretion not to set aside the distribution order should be exercised?

Was service validly effected?

(a) Introductory comments

[33] Ms Kirata and Ms Kabure debated whether those parts of the Magistrates' Courts' Rules (the Rules) dealing with the commencement and service of civil proceedings applied in their entirety to land causes, such as a distribution application. Ms Kabure submitted that we ought to hold that such procedures should be approached more flexibly in land cases, to avoid injustices that may result from commencement of such proceedings by lay litigants, as well as their consideration by lay Magistrates.

[34] If Ms Kabure were right in that submission, we will need to consider what approach to the commencement of a distribution application should be taken and what form of service should be required, in any given case.

(b) The Magistrates' Courts' Rules

[35] Part III of the Rules specifies how civil proceedings are to be commenced and what mode of service is required. Rules 17 and 18 provide:

Commencement of civil action
17. For the purpose of commencing any action, the plaintiff may apply to the magistrates' court having jurisdiction for a writ of summons in the prescribed form and the particulars of the claim shall be set out therein and signed and filed by such magistrates' court and a copy issued by it for service on the defendant.
Service of summons on defendant and subpoena to any witness
18.-(1) The copy writ of summons signed by the plaintiff shall be served by him, or by someone on his behalf, on the defendant personally; and if for any reason personal service cannot be promptly effected, the COUÄ which issued the writ may, upon proof of the fact by the plaintiff and on being satisfied that the defendant is within the district andjurisdiction of such court, direct that the same be left with some person other than the defendant, if the court is satisfied that through such person the issue of the writ of summons and its contents will come to the knowledge of the defendant
(2) Either party to an action may obtain from the magistrates' court before which a claim is made a subpoena in the prescribed form to a witness to give evidence at the hearing, such court issuing the same upon request.
(Emphasis added)

[36] By contrast, Part IV of the Rules deals specifically with the power of the Magistrates' Court in relation to "Land Causes and Matters". Rules 27 and 28 deal with the commencement of a land proceeding and the consequences of a served person failing to appear at the hearing:

Commencement of action by summons
27. The magistrates' court, either of its own motion or on the application of any party, may summon any person subject to its jurisdiction to attend to give evidence, or to produce documents, or to be examined.
Procedure where applicant or party fails to appear
28. If an applicant fails to appear at the time and place at which he has been required to attend the court and does not excuse his failure to the satisfaction of the court, the court may strike out his application, and if any party does not obey a summons issued under paragraph 1 and does not excuse his failure to the satisfaction of the court, then, after proof of service, the court may appoint a relative of such party to the proceedings as may reasonably be expected to have good knowledge of the history of the title to the land under dispute, or other matter in issue, to represent each party and may thereupon proceed to hear and determine the matter in issue.

[37] In comparing the rules for civil proceedings and land causes respectively, we note the following features:

(a) Rule 17 requires commencement of a civil proceeding by a formal writ of summons issued in a prescribed form. On the other hand, r 27 indicates that the Court may summon a person subject to its jurisdiction, either on the application of any party or of its own motion. The jurisdiction to "summon" such a person is for one of three purposes: "to attend to give evidence, or to produce documents, or to be examined".
(b) Consistent with the greater formality surrounding the issue of civil proceedings, r 18 requires the writ of summons to be served personally on a defendant. Only if the plaintiff can prove that the defendant cannot be served promptly and there is some other person with whom the writ can be left, the Court may make an order for substituted service provided it is satisfied that the person with whom it is left will bring the contents to the knowledge of the defendant.
(c) No specific rules as to service are contained in Part IV of the Rules, dealing with land causes. Instead, r 28 confers a discretion on the Court either to excuse compliance with the summons or to appoint a relative of the party served who "may reasonably be expected to have good knowledge of the history of the title to the land under dispute, or other matter in issue."

(c) Should a different approach be taken to land causes?

[38] A distribution application is made under either s 10 or s 11 of the Gilbert and Phoenix Islands Lands Code (the Lands Code). In the present case, the Court had confirmed that the deceased had not left a will. Therefore, the application fell to be determined under s 11 of the Lands Code. Relevantly, clause 11 provides:

• 11. The estate of an intestate owner or of an owner whose will has been stopped will only be settled when his next-of-kin or their representatives are present. If the next-of-kin can agree upon a distribution then this may be approved by the court. If no agreement can be reached then the estate will be divided as shown below:
  • (ii) In the distribution of an estate between the sons and daughters of an owner the shares of the eldest son shall exceed that of his brothers, and the share of sons shall exceed the shares of daughters. If there are no sons then the share of the eldest daughter will exceed that of her sisters.

[39] In this case, it is accepted that no document was filed by Teitengaun to initiate the distribution application. Nor was any application made to the Court for substituted service of the "application" that he had made. No judicial decision was made as to the form of service that should be effected.

[40] Section 11 of the Lands Code envisages a two-step process. The first is for the deceased's "next-of-kin" to agree upon how the lands should be distributed. Any consensus that may be formed can be approved by the Court, and given effect in that way. The second applies when no agreement has been reached. In that case, the Court is obliged to follow the terms of s 11 (ii) in deciding how the lands should be distributed. However, s Il(ii) focuses on the totality of the deceased's estate rather than its component parts.

[41] In (what we will call) the agreement phase, the family member who wishes to settle the form of any distribution must seek out those members of his or her family who need to participate in order to reach agreement. Section 11 seems to be based on the premise that, typically, the whereabouts of the family members entitled to share in the lands will be known. A process of consultation would normally be expected among all "next-of-kin" to whom s 11 applies.

[42] If no agreement were reached, the family member promoting a distribution will need to apply to the Court for an order. At the very least, the family member should provide a written document to explain what form of distribution is sought, so that other family members have an opportunity to consider their positions after service of that document. Alternatively, in a case where (for example) an applicant may not have the skill to put together such a document, information could be given to the Court on the basis of which a minute could be issued recording the orders sought. In that way, the Court would initiate a distribution application of its own motion, as contemplated by r 27 of the Rules.

[43] If consultation has occurred in the agreement phase, the applicant will know the locations at which next-of-kin can be found for the purpose of personal service. At least, the applicant will be able to provide information to the Court as to the best means by which such persons can be found and served.

[44] If the applicant did not know where his or her next-of-kin were living, the Court would need to consider, from information provided by the applicant, what form of substituted service was necessary. Sometimes, the Court may still require personal service. On other occasions, it may require service on some other person (possibly another family member) whom it is satisfied will bring the application to the attention of the person to be served. Another alternative may be to require substituted service by other means, which might (in appropriate cases) include the use of a radio message (for example) to reach family members located in the outer islands. The rationale for use of a radio message is that it will either be heard by the family member concerned, or at least drawn to his or her attention by some other person within the small community who hears it.

[45] In the absence of any express rule, does the Magistrates' Court have jurisdiction to order service in that way? Counsel referred us to two further potential sources of jurisdiction:

(a) One was the High Court (Civil Procedure) Rules. However, it is clear that they do not apply to proceedings in the Magistrates' Court;^[3]
(b) The other is the rules of civil practice and procedure observed in England in respect of the County Courts.^[4] These rules are inapt to deal with the types of service problems that arise in a country such as Kiribati.

[46] Nevertheless, in our view, for reasons that follow, a Magistrates' Court exercising jurisdiction in a land cause does have power to make any form of substituted service order that will ensure that the person affected obtains notice of the hearing and is given an opportunity to appear.

[47] First, the Magistrates' Court, while one of limited jurisdiction, undoubtedly has inherent powers to ensure that its processes are used fairly. Every Court has the ability to ensure that processes that have been developed to achieve justice between parties are not abused.^[5] That includes the capacity to ensure service of Court process is achieved in a manner that will bring the proceeding to the attention of the person being served.

[48] Second, that approach is consistent with the protections given to those involved in land cases by r 28 of the Rules. That rule contemplates the Court exercising powers to ensure that those who need to be heard have that opportunity, even if it requires the appointment of a relative to advance the arguments that they wish to make. That power emphasises the need for the Magistrates' Court to be satisfied that all affected family members have an opportunity to be heard, and that it has all relevant information to make a just decision according to law.

(d) Was service valid in this case?

[49] A flexible approach to service of land cause processes does not dispense with the need for minimum standards to be applied. While we have held that the Magistrates' Court can exercise a flexible jurisdiction to authorise service, the minimum standard required is one which complies with the principles of natural justice. A party who is shut out from being heard will, generally, be entitled to have an adverse order set aside so that the merits of an argument can be determined. If personal service is not to be effected three things are needed before a Court could regard an alternative form of service as adequate: an originating document, an application for substituted service and an order for substituted service.

[50] Teitengaun did not file a written document to commence the distribution application. Nor did the Court itself prepare and issue a document describing what was proposed by Teitengaun by way of distribution of the deceased's estate. As a result, there was nothing that could be served personally. Teitengaun did not seek an order for substituted service. Had he done so, it is (at least) possible that the Court would have required some family members to be served personally; for example, there is evidence that the issue of Karainging were living at or near the Anikarawa land. If an application had been made for substituted service, and the Court was satisfied that the application would be drawn to the attention of other affected family members, service by that substituted means would have been sufficient.

[51] On any view, in the absence of an authorising judicial order, service by advertisement or radio message was irregular. That being so, Bwebwe and the issue of Karainging did not receive adequate notice of the application. The orders made can only stand if the residual discretion can be exercised in Teitengaun's favour.

Exercise of the residual discretion

[52] As mentioned previously, a Court's discretion not to set aside an order made after defective service is narrow. In terms of EA v Rennie Cox Lawyers,^[6] the discretion is limited to "cases where the irregularity in obtaining the judgment [is] so minor and inconsequential that it could not have caused prejudice and if the court can safely conclude that there is no risk of a miscarriage of justice".

[53] We are not persuaded that the risk of a miscarriage of justice can be discounted. There are four factors which have, in combination, led us to that view.

[54] First, while Bwebwe and the issue of Karainging are faced with this Court's prior decision in Mangoniti v Mangoniti,^[7] to the effect that a half-brother will be treated in the same way as a brother for the purpose of the term "next-of-kin", in s 11 of the Lands Code, a finding that the deceased was not the biological father of Teitengaun might affect the exercise of the Court's discretion (within the bounds of s Il(ii) of the Lands Code) as to the particular lands of the deceased to which he is entitled to succeed. The real contest in this case is about whether Teitengaun should have received a share in the Anikarawa land. Although there is a specific provision, s 65 of the Magistrates' Coults' Ordinance, which deals with questions of paternity in the context of land causes, that is not an exclusive pathway for resolution of such an issue.^[8]

[55] Second, although the High Court took the view that it was "too late in the day" for the paternity allegation to be raised, the point assumed no substance until Teitengaun's application to the Magistrates' Court for a distribution order, some 21 years after the deceased's death. Until that application was made, there was no reason for the point to be debated. Because we have disagreed with the High Court's view that valid service was effected by the radio message, any suggestion that it is too late for the paternity allegation to be pursued is unjustified. Without going into detail, if accepted by the Court, there is available evidence to suggest that the deceased may not have been in Kiribati at the time Teitengaun was conceived or born.

[56] Third, a question has been raised about the possibility of the deceased promising the Anikarawa land to Tongoun, Karainging and Teauea during his lifetime. Bwebwe's evidence is that Tongoun was paid $10,000 for his share of that land as he did not wish to live in Tabiteuea South. Her evidence is that Karainging's issue continue to live on the Anikarawa land, having cultivated it over the years to procure their food and income. If accepted by the Court, this evidence of attachment to the specific land might influence the way in which the division of land among the deceased's brothers and sisters and their respective issue should be best achieved.

[57] Fourth, prior to the hearing of this appeal, Kakoroa Tongoun recanted on the support previously given to Teitengaun, on behalf of both the issue of Tongoun and Teera. If accepted, Kakoroa Tongoun's evidence could be seen as suggesting intentional behaviour on the part of Teitengaun to gain support from some members of the family to the exclusion of others; particularly, in light of the somewhat coy answers given by Teitengaun to the Court at the 19 April 2019 hearing. This could also be relevant to the Court's assessment of the way in which the totality of the deceased's lands should be divided.

Conclusion

[58] For those reasons, the appeal is allowed. The distribution order is set aside. The distribution application is remitted to the Magistrates' Court for reconsideration. As all parties are now aware of the nature of the application, no further service is required. It will be for the Magistrates' Court to determine how it should proceed with the remitted hearing, and to advise the parties and their legal representatives of what process they intend to follow.

[59] The appellants are entitled to costs, in both the High Court and in this Court. If quantum were not agreed, they are to be fixed by the Registrar, of the respective Courts.

[60] We express our appreciation to both counsel, Ms Kirata and Ms Kabure, for their excellent submissions on some novel issues of importance in the land jurisdiction. We also appreciated their assistance in educating us about the practices of the Magistrates' Court when dealing with land causes.

Blanchard JA

Hansen JA

Heath JA

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^[1] Martin v Ryan [1990] NZHC 151; [1990] 2 NZLR 209 (HC) at 229, applied in Skelton v Family Court at Hamilton [2007] NZHC 273; [2007] 3 NZLR 368 (HC) at paras [87] and [91].
^[2] EA v Rennie cox Lawyers [2018] NZCA 33; [2018] 3 NZLR 202 (CA) at para [20].
^[3] Ekeieta v Kanoua [2013] KIHC 31.
^[4] Magistrate's Courts' Ordinance, s 43.
^[5] McMenamin v Attorney-General [1985] 2 NZLR 274 (CA) at 276.
^[6] EA v Rennie cox Lawyers [2018] NZCA 33; [2018] 3 NZLR 202 (CA) at para [20].
^[7] Mangoniti v Mangoniti [2005] KICA
^[8] Inatio v Inatio [2003] KICA 9