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Barairai v Kareua [1999] KIHC 17; HCLA 02.99 (19 March 1999)

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

HCLA 2/99

BETWEEN:

UOUE BARAIRAI
Appellant

AND:

TAKAWAU KAREUA
Respondent

Mr B Berina for the Appellant
Mr D Lambourne for the Respondent

Date of Hearing: 26 February 1999

JUDGMENT

In case no. A242/98 the parties went to the Magistrates' Court (Lands) for a distribution of the monetary estate of Barairai Bwebwerai (the deceased).

The appellant told the Single Magistrate hearing the case that the deceased was her husband and that she had 2 children by him. She also stated that she had adopted a third child of the deceased from another woman.

The respondent told the Single Magistrate that the deceased had also been her husband and that she had 2 children by him.

The Single Magistrate, obviously thinking that there was no dispute between the parties, distributed the estate of $13,051.29 equally between the 5 children.

That decision is now appealed on the following grounds:

1. The proceedings were conducted in an unsatisfactory manner in that
   
   • (a) The rights of the parties was not properly explained to them, in particular the right to question each other.
     
   • (b) The parties were not to sworn before giving evidence and this right was not explained to them.
     
2. The learned Single Magistrate erred in law in allowing the claim for the shares of the children of TAKAWAU without proper proof of the paternity of such children.
   

The appellant alleges that the respondent did not have any children by the deceased. She claims that in the court below no sworn evidence was given and the Single Magistrate did not inform her of her right to cross-examine the respondent, nor was she given the chance to say what she thought of the respondent's story.

The procedure to be observed by a court hearing a land cause or matter is set out in Rule 30 of the Magistrates' Courts Rules. Rules 30(c) and 30(d) provide respectively for the giving of evidence on oath and the right of a party to cross-examine the opposite party or that party's witnesses.

It is not in dispute that the Single Magistrate did not follow that procedure. The respondent argues that it was not necessary to do so since the appellant had not put the paternity of the respondent's children in issue and the parties were in agreement as to how the estate should be distributed.

It is clear from the minutes that the Single Magistrate assumed, without establishing for certain, that the parties were in agreement. It is true that the appellant said in those proceedings that she thought that the estate should go to the children, with a share to herself. But she was not asked which children she was referring to. She was also not asked whether she agreed with the respondent's claim, nor was she asked whether any agreement had been reached with the respondent regarding the distribution of the estate. Those matters should have been clarified before the Single Magistrate came to a decision.

It is also true that the appellant did not say anything in the lower court to indicate that the paternity of the respondent's children was in dispute. That is probably because her right to do so was not explained to her. She was not legally represented and there was no reason to suppose that she was familiar with court procedure.

In such circumstances it was essential for the court to ensure that she fully understood her rights to present her case and attack the case of her opponent. In our opinion, the Single Magistrate's failure to advise the appellant accordingly resulted in a miscarriage of justice.

Accordingly, in our judgment, the proceedings in the lower court were unsatisfactory and we therefore allow the appeal, set aside the decision of the Single Magistrate and order the case to be remitted to the magistrates' court for retrial.

THE HON R B LUSSICK
Chief Justice
(19/03/99)

TEKAIE TENANORA
Magistrate
(19/03/99)

BETERO KAITANGARE
Magistrate
(19/03/99)