Toorua v Kaobunang [2017] KIHC 44; Civil Review 3 of 2015 (10 November 2017)

IN THE HIGH COURT OF KIRIBATI

CIVIL REVIEW NO. 3 OF 2015

[TAKOBU TOORUA APPLICANT
[
BETWEEN [AND
[
[TEBAOBAO KAOBUNANG
[KN EREIN TEBAOBAO
[KN KAOBUNANG RESPONDENTS

Before: The Hon Chief Justice Sir John Muria

10 November 2017

Mr Reiati Temaua for Applicant
No Appearance for Respondents

DECISION AND ORDER

Muria, CJ: The applicant, having been granted leave, brought proceedings to review the decision of the Magistrates’ Court in CN 286/15 given on 27 April 2015. Notice of hearing was served on the respondents for hearing on
10 November 2016. Proof of service of the notice of hearing was filed in Court. The respondents did not attend hearing despite being served with the notice of hearing.

The Court permitted the applicants to proceed with their application.

The argument is over the applicant’s entitlement to the deceased’s KPF contribution. It is said that the deceased made a written Will just before he died in Hospital. The written Will was signed only by the deceased, testator. It had not been witnessed by the required two witnesses.

In addition it was also stated that the deceased made an oral Will. The Magistrates’ Court accepted the oral Will but not the written Will.

The so-called written Will, as pointed out by Mr Temaua, in this case did not comply with the requirements for a valid Will under section 10(ii) of the Lands Code which states:

“(ii) If any owner wishes to direct the distribution of his estate after his death then he should make a will. This may be written on any kind of paper but it is better if he will use the will forms kept by the clerk of the court. When he has written the terms of his will then he must sign it in the presence of 2 witnesses who must also sign it. The will must be witnessed by 2 persons who are not members of the testator’s family and who are not beneficiaries under the will.

A new will may be substituted or a new condition may be written changing the terms of the first will but such new wills or terms must both also be signed and witnessed. A written will, correctly witnessed, may not be changed by a verbal one – it is immaterial if the verbal bequest is witnessed or not. If an owner has made no written will then a properly witnessed verbal bequest may be considered by the court”.

We agree with Mr Temaua. On the evidence before the Court, the so-called written Will of the deceased in this case did not comply with the provision referred to above of the Native Lands Code. If a purported written Will does not comply with the legal requirements of a written Will, then in the eyes of the law, there is no written Will in existence.

In this case, the Single Magistrate did not rely on the so-called written Will. Instead, the Single Magistrate relied on the oral Will said to be made by the deceased shortly before he died. Two witnesses, not related to the deceased gave evidence in the Magistrates’ Court, that they witnessed the deceased gave his words (oral Will) on how his Kiribati Provident Fund (KPF) contribution was to be distributed after he died. The two witnesses were Pastor Titaua and Tabontaa. The written words of the deceased were not his Will in writing since the written material was clearly not a written Will. At best what was written for the deceased was simply evidence of the wish of the deceased, orally conveyed to those present, as to how he wanted his KPF contribution standing to his credit, to be distributed upon his death.

In my judgment, the Single Magistrate was correct to find that the deceased made a valid oral Will in terms of section 10(ii) of the Native Lands Code.

The other point raised by Mr Temaua is the allegation of breach of the rule of natural justice. This point was not raised as a ground for seeking judicial review. It was raised in Counsel’s submission.

A party is not entitled to rely on a ground that has not been raised in the grounds for the application for judicial review. The closest the applicant could get to is in ground 2 which states:

“2. Only the respondents were present in Court”.

The argument for the applicant is that she should have been notified of the hearing because she was the adoptive mother of the deceased. That adoption was done in CN 13/84.

Despite the drafting of ground 2 (above), I accept that the applicant’s argument that she ought to be summonsed to attend the distribution hearing because she was the adoptive mother of the deceased. She was not notified and as a result only the respondents were present at the hearing.

Although the Magistrates’ Court considered and gave effect to the deceased’s oral Will, in accordance with the deceased’s wish, had the notice of the hearing been given to the applicant, the Magistrates’ Court could have given proper “consideration” to the applicant’s position before making the order, distributing the deceased’s KPF to all those entitled to it, including the applicant. That was not done and so the applicant was left out of the distribution.

The result is that the order of distribution of the deceased’s KPF in the sum of $45,841.00 was made without affording procedural fairness to the applicant. This is akin to a decision made contrary to the rule of natural justice.

The prerogative order of certiorari, however, is a discretionary remedy. The Court has power to refuse to make the order even though the decision of the Court below was found to be faulty. One reason for refusing to grant the order is where the grant of the relief would be futile. Another reason for refusing the relief is if there are more convenient and satisfactory remedies available to the applicant.

In the present case, the distribution of the deceased’s KPF contribution was made in April 2015. The applicant brought the application in October 2015, six months after the deceased’s KPF asset had already been distributed. The money had already been dissipated. There is nothing left to be distributed to the applicant by October 2015.

In the Court’s view, the grant of certiorari in this case would be an exercise in futility. Further, no doubt the lawyers for the applicant may wish to advise the applicant of other appropriate remedies available to claim a share of her entitlement to the deceased’s KPF assets.

The grant of the prerogative remedy of certiorari is declined.

Dated the 6^th day of December 2017

SIR JOHN MURIA
Chief Justice