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

HCLA 205/90

BETWEEN:

NEI BETA BAURO
Appellant

AND:

NEI TIEMA TITAN
Respondent

Mr T Teiwaki for the Appellant
Mr D Lambourne for the Respondent

JUDGMENT

This is an appeal against the decision of the Marakei Magistrates' Court (Lands) in case No. MK 86/90. The appellant as plaintiff in that case brought an action to confirm the will of N. Kabwea, which she claimed left certain property to her. The lower court ruled, however, that the will was invalid because it was not witnessed and so did not comply with section 10 of the Lands Code.

We would say at the outset that if the document in dispute was in fact a will then the decision of the lower court was unquestionably correct.

However, counsel for the appellant argues that the decision was wrong because the document was not a will, but simply a letter evidencing gifts of property to the appellant and other persons.

This was an argument that was never presented to the magistrates' court. There, the appellant, as plaintiff, brought an action entitled: "Confirmation of N. Kabwea's will". At no stage did the plaintiff tell the court that the document she was seeking to enforce was not a will. In fact, one question she herself asked when cross-examining the defendant (the present respondent) was in these terms:

"Q.	Why was your name not included in Kabwea's will?"

The magistrates' court also questioned the defendant about the "will" and there was no protest from the plaintiff that the court was wrong to refer to it as such and that the document was really a letter.

We note that the landowner herself refers in the document to certain properties "as set out in my Will".

We suspect that this new argument which counsel for the appellant now urges upon us was conceived after the decision of the lower court had made it clear to the appellant that she could not possibly succeed on the claim that she had been left the properties under a valid will.

We have no doubt at all that the document which the magistrates were asked to confirm purported to be a will, and that they were quite correct in rejecting it.

We might add that the appellant would be no better off had we accepted her counsel's argument that the document was really just a letter and not a will.

If the document was meant to evidence gifts of property inter vivos, then nothing was ever done to give effect to it. Certainly no approval by a court was ever sought or obtained as required by law.

In fact, it seems to us that such a document ought to be treated with a great deal of caution. The evidence was that Nei Kabwea died in 1981, yet the plaintiff did not bring her claim until 1990. If the plaintiff genuinely thought that the document was a valid disposition of property why did she not seek to enforce it sooner? At the hearing in the lower court, the defendant cross-examined her on this point and her reply was:

"A.	I was very busy and got sick, just got a chance now".

We find this a very unsatisfactory explanation for a delay of nine years.

Because the document was not dated there is no telling when it was made. It leaves open the possibility that Nei Kabwea may have later changed her mind, since nothing was ever done to legalise the so-called gifts. It goes without saying that it would have been quite impossible for the magistrates' court in 1990 to give effect to an undated and unwitnessed transfer nine years after the transferor's death. In other words, the document, as a purported gift inter vivos, would have been equally as invalid.

The appeal fails and is dismissed accordingly.

THE HON R B LUSSICK
Chief Justice
(06/02/97)

BITIARE EKERA
Magistrate
(06/02/97)

BETERO KAITANGARE
Magistrate
(06/02/97)