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

HCLA 33/97

BETWEEN:

TOKIBARA OMERI
Appellant

AND:

KIRITOA RENETE
Respondent

Mr D Lambourne for the Appellant
Respondent in person

Date of Hearing: 9 June 1997

JUDGMENT

This is an appeal against the decision of the Abemama Land Magistrates' Court in case No. 62/96 delivered on 6 December 1996. The magistrates ordered that the land Temarenaua be registered in the name of the respondent as a gift for nursing bestowed by the deceased Omeri Tanintoa.

The appellant is Omeri's son and the respondent is married to Tokira, who is the appellant's sister.

Despite what is contained in the Notice of Appeal, the sole ground of appeal relied upon by the appellant is that a gift for nursing can only be given by a valid will and that the will of the deceased Omeri was not a valid one.

The court will not give effect to a will unless it complies with section 10 of the Lands Code. The relevant part of that section provides as follows:

"10(i)	An owner's will disposing of his property may be allowed by the court if it is in accordance with this Lands Code.

(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".

Strangely enough, although the validity of the will was the central issue in the case before the magistrates, the will itself does not appear to have been put into evidence; at least there is no mention in the minutes that this was done.

The lower court heard evidence from Timotee Karakaua that he visited Omeri accompanied by Taboi, a magistrate. According to Timotee, Omeri said that he wanted to leave his land to the respondent. Timotee said that he wrote down what Omeri said and asked Taboi to sign it but that Taboi told him to sign it for him. We presume that the witness also signed it on his own behalf, although according to the minutes he did not specifically say so.

The only other evidence regarding the will was a quite inadmissible statement written by the court clerk, which was nevertheless allowed into evidence as Exhibit No. 1. In it the court clerk stated that he spoke on CB radio to Taboi in Washington Island and Taboi told him that he had witnessed the will of Omeri. What Taboi allegedly said was not inconsistent with the evidence of Timotee, because Taboi did not say that he actually signed the will as a witness.

The will clearly did not comply with section 10 in that it was signed by only one witness instead of two, and therefore the magistrates' court was not empowered to give effect to it. It is also apparent from their judgment that the magistrates did not regard the will as having complied with the requirements of section 10(ii). One passage in the judgment reads: "It (the will) was cleared in the first case but it was dismissed because it was not done in the right procedure as it should be subjected to section 10(i) (ii) of the Lands Code". (We know nothing of the "first case" referred to).

The Lands Code prescribes in very clear terms that unless a gift for nursing is given by a will which has been confirmed by the court then it will not be recognised. The relevant provision is section 5(i) which reads:

"5(i) A gift for nursing may only be given by a will which has been confirmed by the court or if it is satisfied that the deceased made no will because he was prevented from so doing, or he was incapable of making one".

Despite that provision, the magistrates then proceeded to approve the gift for nursing. The reason they gave for doing so was as follows: "If Omeri Tanintoa was told to follow the right procedures in making his will, the court might approve it but because there was no-one to lead him to the right procedures of what was expected in the provisions of the Lands Code that might cause trouble in making his will".

We can only assume that the reason the magistrates felt that they were entitled to approve the gift for nursing was that, in accordance with section 5(i), they were satisfied that the deceased made no will because either he was prevented from doing so, or was incapable of making one. There was no evidence at all to support such a finding. The deceased was not prevented from making a will. On the contrary, he did make a will. The fact that he was ignorant of the requirements of section 10(ii) does not mean that he was prevented from making a will. Similarly, the evidence that the deceased made a will excludes the possibility that he was incapable of making one.

It follows that the magistrates fell into error in not properly applying section 5(i), which was the law governing the dispute.

The appeal is therefore allowed and the decision of the magistrates' court is set aside.

The respondent is advised that he has the right to appeal to the Court of Appeal within 6 weeks.

THE HON R B LUSSICK
Chief Justice
(16/06/97)

TEKAIE TENANORA
Magistrate
(16/06/97)

BETERO KAITANGARE
Magistrate
(16/06/97)