Arebonto v Metutera [2003] KIHC 151; Land Appeal 03 of 2002 (17 November 2003)

IN THE HIGH COURT OF KIRIBATI
LAND JURISDICTION
HELD AT ONOTOA
REPUBLIC OF KIRIBATI

High Court Land Appeal 3 of 2002

Between:

MAREM AREBONTO & OTHERS
Appellants

And:

TIATAAKE METUTERA & OTHERS
ITINNANG BATAUA & OTHERS
Respondents

For the Appellants: Ms Taoing Taoaba
For the Respondents: Mr John O'Sullivan

Date of Hearing: 17 November 2003

JUDGMENT
(Ex Tempore)

Ms Taoaba's argument is that the will upon which the distribution of lands was based, was not properly proved. The will itself, made about 1960, has disappeared. The will was registered but the registration does not shew the contents. The respondents Tiataake Metutera and Itinnang Bataua gave evidence of the contents of the will. The Court accepted their evidence and based its findings on it. Ms Taoaba complains that the respondents were giving evidence in their own favour and it may be unreliable. That was for the magistrates. They accepted the evidence and there is no reason why they should not have.

Of course it would have been better if the will could have been produced to the Court: that was impossible as it has disappeared. Parol evidence of a written document may be given when the document is not available. The Court must use the best evidence available to it.

Ms Taoaba asked that the case be sent back for rehearing to allow a witness to the will to give evidence of the contents. The witness had not been called: he or she must be quite old by now and his or her memory may not be good. Besides, just because a person witnesses a will does not mean that the witness is familiar with the contents. We refer to S.4(1)(b) of the Native Lands Ordinance: registration gives indefeasibility of title: this will had been registered: the title is indefeasible.

The appeal is dismissed.

THE HON ROBIN MILLHOUSE QC
Chief Justice

BETERO KAITANGARE
Magistrate

RARATU IEITA
Magistrate