Safega v Heinrich [2001] KICA 13; Land Appeal 05 of 2000 (5 April 2001)

IN THE KIRIBATI COURT OF APPEAL
LAND JURISDICTION
HELD AT BETIO, KIRIBATI

Land Appeal No. 5 of 2000

BETWEEN:

MEERE SAFEGA
(FOR ISSUES OF TETONGA KIAIETA)
Appellant

AND:

EIGIGU HEINRICH
(FOR ISSUES OF NEI TIO BUBU)
Respondent

Before: Casey JA
Bisson JA
Tompkins JA

Counsel: Mr T Teiwaki for the appellant
Mr B Berina for the respondent

Date of Hearing: 2 April 2001
Date of Judgment: 5 April 2001

JUDGMENT OF THE COURT

[1] The dispute in this appeal is over the land of the adopting parent to which an adopted child succeeds. Section 9(iii) of the Lands Code (Cap 61) states:

"An adopted child will inherit from his adoptive parent just as though he were a real child of that person. At the time that the adoption is registered before the court it must be decided if the adopted child is to receive from the adoptive parents' father's and mother's family lands or only from the adoptive parents' father's lands or only from his mother's lands".

Nei Tio Bubu was adopted by Nei Tio Buaua in 1969 (CN 156/69) and after further litigation her registration after Nei Tio Buaua was confirmed, but the nature of her inheritance in terms of s9(iii) was not made clear. In 1999 the matter came before the Single Magistrate in a claim by the present Appellants for rectification and he held in a decision of 6 July 1999 that the interest of Nei Tio Bubu should be registered only on the maternal estate of Nei Tio Buaua, and not on her paternal estate.

[2] That decision was appealed to the High Court which held on 9 June 2000 that the Magistrate erred because he had purported to overturn an earlier Magistrate's decision (131/87) holding Nei Tio Bubu was entitled to be registered over all Nei Tio Buaua's estate, and this had been confirmed by the High Court on appeal on 21 November 1989 (there is an obvious error in the description of the parties in its decision). The present appeal is against that decision of 9 June 2000.

[3] Our attention was drawn to this Court's judgment in Toromon Iaro v Tonganibeia Bosco Bio Mauerere Kiaman (2/1998) of 29 November 1999 making it clear that under subsection (iii) of The Lands Code the adopted child will inherit a share in all the adoptive parent's family lands in the absence of a decision to the contrary at the time the adoption was registered. As noted, there was no such decision in this case and the result is that Nei Tio Bubu succeeded to all her adoptive mother's estate, as found by the Single Magistrate in 131/87. The High Court was accordingly correct to set aside the decision in the later case 281/99.

Result

The appeal is dismissed.

Casey JA
Bisson JA
Tompkins JA