Mote v Ekearuru [1996] KIHC 45; HCLA 061.95 (23 July 1996)

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

HCLA 61/95

BETWEEN:

ROBATI MOTE
Appellant

AND:

AUNIKABU EKEARURU
Respondent

Appellant in person
Mr D Lambourne for the Respondent

JUDGMENT

The appellant appeals against a decision of the Land Magistrates' Court in case no. 23/95 granting an application to distribute an estate between himself and his brother. His case was that a share should not be given to his brother.

In his objection to the application the appellant raised the following issues in the lower court.

(1) The application was made on behalf of the brother's children by their mother. The children themselves did not appear but the mother produced a letter purporting to be from the children and authorising her to represent them. The appellant contended that the letter was not genuine and in any event it was not admissible because it was hearsay.

(2) His brother had been absent from Marakei for more than 30 years. Under section 12 of the Lands Code if an owner is absent from his island for 15 years or more the court should enquire as to the intention of the owner or his issue to return and if satisfied that they will not return then the estate may be distributed to the owner's next-of-kin who live on the island as though he had died issueless, or as otherwise decided by the court. The appellant submitted to the lower court that the intention of the owner or his issue could not be determined from the applicant's evidence but that the failure of the children to attend the hearing raised great doubt that they intended to return to Marakei.

(3) The appellant also raised a Constitutional issue which did not appear to us to have much merit.

Nevertheless, it was the duty of the lower court to address these issues and this they failed to do. The magistrates' decision consisted solely of granting the application. They gave no reasons whatsoever for this decision. There was nothing on the record to show that the magistrates had made any findings at all, whether of fact or law. All we are able to say is that they completely failed to deal with the issues. In the circumstances, it is not possible for us to rule on whether or not the magistrates were entitled to make the decision they did. The decision is quite unsatisfactory in its present form.

The appeal will therefore be allowed. The decision of the lower court is set aside and the case is remitted for rehearing.

THE HON R B LUSSICK
Chief Justice
(23/07/96)

TEKAIE TENANORA
Magistrate
(23/07/96)

BETERO KAITANGARE
Magistrate
(23/07/96)