Eriabu v Eriabu [2004] KIHC 247; Land Appeal 24 of 2004 (29 October 2004)

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

High Court Land Appeal 24 of 2004

Between:

UAKITERA ERIABU
TARAWA ERIABU
MARAEA ERIABU
REIBA NATANO
KOURABI BEERO
Appellants

And:

NEI ARITI ERIABU
Respondent

For the Appellants: Mr Banuera Berina
For the Respondent: Ms Taoing Taoaba

Date of Hearing: 29 October 2004

JUDGMENT
(Ex Tempore)

Mr Berina has argued that the Single Magistrate came to his decision on a point not raised at the hearing by him or by the parties: that the will which the Court had to confirm or otherwise had not been signed by the testator. Ms Taoaba concedes that the point was not raised but emphasizes that to be valid a will must be signed. That is so but the parties ought to have been given an opportunity to offer any explanation there may have been for the lack of signature. A court should not decide a case on a point which has not been argued before it. If a point occurs to a judge or magistrate after the hearing and he or she proposes to come to a decision based on that point, the parties ought first to be called back to court and given the opportunity to argue it.

The appeal is allowed, the decision of the Single Magistrate quashed and the case remitted to the magistrates’ court to be heard again in accordance with these reasons.

THE HON ROBIN MILLHOUSE QC
Chief Justice

BETERO KAITANGARE
Magistrate

RARATU IEITA
Magistrate