Taabu v Kabunare [2004] KIHC 267; Land Appeal 45 of 2003 (3 December 2004)

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

High Court Land Appeal 45 of 2003

Between:

REETI TAABU
Appellant

And:

MOTIATA KABUNARE
Respondent

For the Appellant: Mr Banuera Berina
For the Respondent: Ms Botika Maitinnara

Date of Hearing: 19 November 2004

JUDGMENT

In February 2003 (in C/N 42/03) the Single Magistrate approved the distribution of the monetary estate of Tamueru Boota. Monies from the KPF made up the estate. The applicant was Motiata Kabunare, the present respondent. The respondents in the Court below were Kabuati Tameru, Reeti Taabu and her two infant children and Taanu Boota, father of the deceased.

Nei Motiata said she was the widow of the deceased and they had a child, Kabuati. Nei Reeti, the present appellant, in her evidence said she was the second spouse of the deceased and she had two children by him. The English translation of the next minute of N. Reeti’s evidence reads: “the deceased made a will and I was also included in his will.” Mr Berina challenged the translation and suggested the latter part should read, “I shall go along with what he said in the will”. Ms Maitinnara did not dispute Mr Berina’s interpretation of what N. Reeti had said: Mr Interpreter confirmed it. The effect of what N. Reeti said was that she accepted the validity of the will. Accordingly the Court granted the application and “ordered that Tamueru’s KPF should be distributed between his son Kabuati Tamueru and widow Motiata Tamuera. And should obtain equal shares out from the deceased KPF”.

[I should mention the word “will” has been used in the various documents before the Court and by counsel. In fact it is not a will but a nomination pursuant to Section 25 of the Provident Fund Act and Part VI of the Regulations made under the Act. The nomination appears to be, in form, valid.]

Some time after the proceedings in February 2003 the appellant “was advised that the will was not signed by Tamueru” (the words in her affidavit in support of an application to appeal out of time). The relevant paragraphs of her affidavit are:-

3. I had a child with Tamweru and I wanted to ensure my child had a share from his father’s estate.
   
4. Unfortunately I was faced with a will purportedly made by Tamweru and as I was not familiar with Tamweru’s handwriting I was not in the position to question the authenticity of the will.
   
5. I have been advised that the will was not signed by Tamweru and as a result I made a search of all his signatures that I could lay my hands on.
   

[The deponent then refers to four documents annexed.]

8. I verily believe that there is a probable case of forgery and for this reason I am asking to be allowed to appeal out of time against the decision so that a retrial could be ordered to enable the Court to make thorough enquiries into the matter.
   
9. The reason for the delay in the appeal is that I did not intend to appeal until I was advised that the will might have been executed in suspicious circumstances.
   

On the 13th August we gave leave to appeal out of time.

The appellant relied on four documents, one being the KPF nomination form, three apparently bearing Tamuera’s signature at other times. It would be difficult for us as laymen to find, one way or the other, by comparing the various signatures, that the signature on the nomination form is or is not that of Tamuera. No expert handwriting evidence is available in Kiribati. We note that in her affidavit N. Reeti says merely “a probable case of forgery”.

There are however, a number of other pieces of circumstantial evidence which point to the nomination not being genuine.

Nei Mauritaake Kabunare swore an affidavit in support of the respondent and twice was cross examined by Mr Berina. The relevant paragraphs of the affidavit:

3. One time in the year 1990 I remember Tamueru Boota asking me to bring the will form from my office for him and I did that.
   
4. I gave the will form to Tamueru Boota.
   
5. Tamueru Boota was sick at that time. He was having a very had arthritis in his arms and legs.
   
6. Tamueru Boota asked Motiata Tamueru his wife to fill the will form up for him due to the fact that he couldn’t write it all down because of the bad arthritis.
   
7. I was there when this happened.
   
8. Tamueru Boota was directing Motiata Tamueru on what to write in the will form.
   
9. After filling up the will form, Motiata Tamueru gave the will form to Tamueru Boota as he wanted to check it.
   
10. After reading and going through the will form, Tameru Boota, himself signed that will form.
    
11. I took that will form from Tamueru Boota, brought it to the Office, gave it to one Roruama Merang the compliance officer to have a look at it.
    
12. Roruama Merang after checking that will form, and then told me to sign it as a witness.
    
13. I signed it and left it with Roruama Merang.
    

In cross-examination it came out that N. Mauritaake is the sister of N. Motiata and the natural mother of Kabuati meaning that the beneficiaries under the nomination are respectively N. Mauritaake’s sister and her son.

In her affidavit N. Mauritaake said she took the nomination form back to the office and there added her signature as witness to Tamuera. In
cross-examination she first said that she had signed it back at the office and then changed her mind:-

12 is not true. 13 I had signed it earlier on.

In re-examination:

I signed will with testator not at the office. Later took it to office after signed it.

Pursuant to Regulation 45, that the witness did not sign in the presence of the nominator, does not invalidate the nomination but N. Mauritaake’s change of mind as to when she signed does lead us to doubt her reliability.

Ms Maitinnara tendered a copy of Kabuati’s birth certificate. He was born on 13th February 1983. Originally Tamuera was shewn on the certificate as his father and N. Motiata as his mother. By Court order (C/N 100/96) the certificate was altered to shew Bureteriki Taom as the father and Mauritaake Kabunare as mother. The original information supplied at birth had been incorrect.

In her second cross-examination N. Mauritaake:-

Kabuati the other beneficiary is my son: his real father is Bureteriki but before I gave birth Tamuera said he wanted to adopt him, take him as a son. Tamweru – don’t know if he adopted him – all I know is he registered him as his own son.

[The birth certificate originally shewed N. Motiata as informant, not Tamuera].

We note that before the Single Magistrate in 2003, six or seven years after rectification of the birth certificate, N. Motiata gave a family tree shewing Kabuati as her son and Tamuera as the father. We do not know whether N. Motiata was aware of the rectification of Kabuati’s birth certificate but she must have known that she was not Kabuati’s mother. When she gave evidence N. Motiata must have been deliberately misleading the Court. Absent any evidence of Tamuera having legally adopted Kabuati, N. Motiata’s evidence was untruthful. The Single Magistrate’s decision was influenced by fraud.

Finally there is the circumstance that Tamuera some time after the purported nomination, separated from N. Motiata, settled with N. Reeti and had two children by her. It is surprising that Tamuera did not do anything to alter or revoke his KPF nomination, if he knew of it, after estrangement from his wife, settling with another woman and having children by her: strange that he did not make provision for the lady who was in effect, if not in law, his second wife and their two children.

[Counsel gave us to understand that N. Motiata and Tamuera had not divorced, merely separated. N. Reeti was not in law, as she said she was in her evidence before the Single Magistrate, Tamuera’s wife. If she had been his lawful wife then the nomination would be invalid anyway pursuant to the proviso to section 25.]

All these considerations taken together point most strongly to Tamuera not having made any nomination in favour of N. Motiata and Kabuati and therefore point most strongly to his purported signature on the nomination form not being genuine.

Mr Berina asked that we send the case back to the Single Magistrate to consider again the validity of Tamuera’s nomination. There is no point in doing that. The parties had the opportunity to call other witnesses before us but did not do so. It should be clear from what we have written that we consider the nomination not to be genuine. The Single Magistrate could scarcely avoid following our reasons and coming to the same conclusion. We should bring the case to an end by our own order.

The appeal is allowed, the order of the Single Magistrate made on 14 February 2003 quashed. In place of the Single Magistrate’s order we refuse the application by N. Motiata Kabunare for the distribution of the monetary estate of the late Tamueru Boota. The moneys standing to the credit of the deceased Tamueru Boota in the Fund should be dealt with pursuant to section 26(1) of the Provident Fund Act.

Dated the 3rd day of December 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice

BETERO KAITANGARE
Magistrate

RARATU IEITA
Magistrate