Kabaneiti v Takoto [1997] KIHC 60; HCLA 051.91 (29 July 1997)

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

HCLA 51/91

BETWEEN:

N. TEMAU KABANEITI (ONORIO)
N. MIIRA ROBEITI (TEINGOA)
N. BERIAKI NNOTA
Appellants

AND:

T. RETI TAKOTO
T. OBETAIA TEBETAIO
N. MARIA TIOTE
N. KAOTI INRIA
Respondents

Mr D Lambourne for the Appellants
1st, 3rd & 4th Respondents in person
No appearance of 2nd Respondent

Date of Hearing: 22 July 1997

JUDGMENT

There is no appearance of the 2^nd Respondent but, in a letter dated 17^th July 1997, he advises that he is too ill to attend the hearing and is content for it to proceed in his absence.

The appellant Beriaki Nnota applies to withdraw his appeal on the ground that he was not a party to the proceedings in the court below. His appeal is withdrawn and dismissed accordingly.

The other two appellants were named in the will of Tebetaio Aitobere as the beneficiaries of his estate. Notwithstanding the will, the respondents applied to the court below in case No. 28/90 to distribute the estate to them.

The case was heard on the 6^th July 1990 in the absence of the appellants. They were named as parties and the record shows that although they were summoned they failed to appear.

Without having heard from the appellants, the Magistrates' Court cancelled their adoption by the testator, set aside the will and distributed the estate amongst the respondents. That is the decision which is now under appeal.

The record does not show that any proof was put before the magistrates that summonses had actually been served on the appellants. Even if there had been such proof, it is clear from Rules 28 and 29 of the Magistrates' Courts Rules that the correct procedure was for the magistrates to appoint relatives of the appellants to represent them, not to proceed in their absence.

In our view, the magistrates were wrong to decide the case against the appellants without having heard from them or their representatives. To have done so when it was quite obvious that the appellants had a very substantial interest in the proceedings amounts to a miscarriage of justice.

It follows that the appeal will be allowed and the decision of the magistrates' court set aside. The case is remitted to the Magistrates' Court for retrial.

The respondents are advised that they have a right to appeal to the Court of Appeal within 6 weeks.

THE HON R B LUSSICK
Chief Justice
(29/07/97)

TEKAIE TENANORA
Magistrate
(29/07/97)

BETERO KAITANGARE
Magistrate
(29/07/97)