Tiim v Tererei [2021] KICA 6; Land Appeal 3 of 2019 (30 November 2021)

IN THE KIRIBATI COURT OF APPEAL

LAND JURISDICTION

HELD AT BETIO REPUBLIC OF KIRIBATI Land Appeal case No. 3 of 2019

BETWEEN	TIAANTAKE TAMAFALOU TIIM	APPELLANT
AND	KABONG TEREREI	RESPONDENT
Hearing:	22 November 2021
Before:	Blanchard JA Hansen JA Heath JA
Counsel:	Mr R Beniata for the Appellant Ms E Karakaua for the Respondent
Judgment:	30 November 2021

JUDGMENT OF THE COURT

Introduction

This appeal involves a dispute over the ownership of the house plot Nukantekainga

803e, Tenakin, Betio (the house plot). It is Government leased land which was leased to Tererei Aritian (Nei Tererei). In 1994, following Nei Tererei's death, the respondent (Kabong) applied for the lease to be registered in his name on the basis that he was the adopted son of the deceased. His right to ownership was challenged by the appellant who is a daughter of the second husband of Nei Tererei.

[2] In proceeding BetLan 351/12 the Magistrates' Court upheld Kabong's claim to ownership of the land. Having unsuccessfully appealed to the High Court against the decision of the Magistrates' Court, the appellant appealed to this Court. She died before the appeal could be heard. The appeal is pursued hy the administrator of her estate.

Further background

[3] The house plot was leased to Nei Tererei by the Government by lease dated 19

March 1964. The ieasing took place as part ot a scheme whereby the Government leased land from landowners in order to allocate land to homeless people. A challenge to Nei Tererei's claim to ownership was dismissed in 1979.

[4] Kabong was born in 1963 or 1964. (Birth records are not consistent on his date of birth). Soon after, his birth mother, Tamoa, left him in the care of Nei Tererei who brought him up as her son. At the time Nei Tererei was married to Tamoa's brother, Tabuna. When Nei Tererei and Tabuna subsequently separated Kabong remained with Nei Tererei. In 1983 she married Tiim, the father of the appellant. She and her siblings lived with her father, Nei Tererei and Kabong in a house her father built on the house plot. After the marriage ended Nei Tererei continued to live in the house until her death in 1991.
[5] Kabong claims ownership of the house plot as the adopted son of Nei Tererei who had no children of her own. The appellant claimed ownership by virtue of the house and the house plot being matrimonial property which she inherited from her father when he died several years after Nei Tererei's death. She remained in occupation of the house plot until her recent death, resisting court proceedings brought by Kabong to assert his claim to ownership and for her eviction.

Proceedings

[6] Those proceedings began in 1994 when Kabong applied to the Area Committee for the house plot to be registered in his name. The minutes of the relevant BTC council meeting recorded Kabong as the new owner. However, in proceeding C/W 31 1 between Kabong and the Area Committee in which Kabong sought registration to be confirmed, the Magistrates'

Court's finding is recorded as follows:

"Case is adjourned awaiting the adoption minutes. Case adjourned to 23/5/95."

[7] In 2011 Kabong brought proceedings in the Magistrates' Court (BetLan 142/1 1 ) to evict the appellant from the house plot. He was unsuccessful. In a decision given on 14 April 2011 the Single Magistrate held that, while it is clear that Kabong was adopted, his adoption was not legally confirmed. The Court concluded:

For the reasons set out above the Court does not see it proper for the plaintiff to bring this case against the defendants and that the defendants should defend this case given that the house-plot is in the name of Nei Tererei and not the beneficiaries of Nei Tererei.

An appeal against the decision by Kabong (in HCLA 48/11) was withdrawn.

Kabong brought further proceedings in the Magistrates' Court (BetLan 351/12). In opposition, the appellant argued that the issue of registration was res judicata having regard to the minute of the Court in C/W311 and the decision in BetLan 142/1 1. The Magistrates' Court rejected the plea of res judicata and ruled that BetLan 351/12 should proceed together with a separate proceeding (BetLan 467/1 1) brought by the appellant seeking registration of the house plot in the appellant's name. An appeal against the decision (HCLA 69 of 2012) was dismissed and the issue of ownership finally heard in BetLan 351/12.

[9] In the Court's decision delivered on 3 November 2014 the Single Magistrate held that Kabong had not been "adopted by Tererei under the law" but found there was evidence of adoption supported by the registration by Nei Tererei in 1989 of Kabong as her child and the acknowledgment in her death certificate that he was the issue of Nei Tererei. The appellant provided the information for that purpose. The Single Magistrate also relied on evidence that Nei Tererei's brothers and sisters accepted Kabong as her child for the purpose of the distribution of their parents' estate. On the other hand, the Single Magistrate noted that there was no evidence that Nei Tererei intended to benefit the appellant and her occupation of the house since Nei Tererei's death conferred no rights on her.
[10] On appeal to the High Court, the appellant relied on six grounds of appeal. The High Court, comprising the Chief Justice and two Magistrates, held it was necessary to consider only the first two in order to dispose of the appeal. The first was that the Single Magistrate had failed to identify the issue which the Magistrate's Court had earlier determined (and the High Court on appeal had confirmed) was required to be addressed. The second was that the Single Magistrate erred in finding Kabong had been adopted in the absence of an adoption minute or order of the Court.

The High Court rejected the submission that the Single Magistrate had erred in her conduct of the hearing. As to the second ground of appeal, the Court noted that an interest in land was created by the lease which became part of Nei Tererei's estate upon her death. The Court said she was entitled to pass it on to Kabong and the registration by the Area Committee in his name 'effectively sealed the fate of the house plot' in his favour. The Court rejected the appellant's argument that she was entitled to inherit the house plot. It acknowledged that the appellant might have 'a claim of right' over the house which her father helped to build but said that would have to be the subject of separate proceedings.

Appellant's case

[12] The appellant's case is that Kabong's claim to ownership relies on his status as the adopted child of Nei Tererei and that has not been established as required by law.
[13] Mr Beniata relied on s 9 of the Native Lands Code [Cap 61] and s 22B of the Births, Deaths and Marriages Registration Ordinance inserted by the Births, Deaths and Marriages

Amendment Act 2007.

[14] Section 9 of the Native Lands Code provides:

9. (i) A gift to an adopted child may only be given if the adoptive parent has registered the adoption before the court. An adoption as a child shall only be allowed by the court if it is satisfied that the adoptive parent's real issue or his family if he is issueless will not thereby be left in hardship, but if his real issue or his family if he is issueless are guilty of neglect then the court may approve the adoption and it is immaterial if there are not enough lands left for his real issue or his family. Such an adoption may be annulled by the court if it is proved that the adopted grandchild is not dutiful:

(ii) An adopted child will receive his inheritance from his real father and mother in the same way as his brothers and sisters.
(iii) 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 that 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.

Section 22B of the Births, Deaths and Marriages Registration Ordinance provides for the registration of an adoption in accordance with customary law as defined in s 5 of the Laws of Kiribati Act 1989. We are satisfied that it could not apply retrospectively and is of no relevance to this appeal. It may be noted, however, that subsection (6) provides that the non-registration of a customary adoption does not affect its validity and subsection (7) provides the amendment does not affect the application of s 9 of the Native Lands Code.

The case for the appellant accordingly turns on the application of s 9 of the Native Lands Code. Mr Beniata argued that s 9(iii) requires Kabong's adoption to have been registered in order for him to inherit Nei Tererei's interest in the house plot.

Respondent's position

For Kabong, it is contended that the High Court was right to uphold the decision of the Single Magistrate. Ms Karakaua submits that the Native Lands Code does not apply as this was a customary adoption.

Discussion

It is common ground that registration did not occur. Kabong cannot, therefore, avail himself of the right to inherit from his adoptive mother that would otherwise have arisen under s 9(iii). However, while s 9(iii) creates a right to inherit, it is not a bar to an adoptive child inheriting from an adoptive parent in an appropriate case. in this regard, ss (iii) is to be contrasted with ss (i) which permits a gift to an adoptive child only if the adoption has been registered.

In our view, s 9 does not operate to prevent the Magistrates' Court from endorsing the finding of the Area Committee that the house plot should be registered in the name of Kabong. Section 64 of the Magistrates Court Ordinance (Cap 61) provides that the Magistrates' Court shall adjudicate on all cases brought before it, concerning native adoption and the conveyance of land which such adoptions may entail. In exercise of that jurisdiction, the Magistrates' Court at first instance determined that there had been a customary adoption, an intention on Nei Tererei's part that Kabong should inherit the house plot and that those who may have been entitled to claim supported their sister's wishes. Although there was no formal registration of the adoption, there was compelling evidence of a customary adoption. It may be noted, also, that with Tererei's next-of-kin supporting Kabong's claim to inherit the Court approved a distribution of her estate in a manner consistent with s 1 1 (i) of the Native Lands Code.

[20] On the other hand, as the Single Magistrate found and the High Court confirmed, the appellant could maintain no entitlement to the land. In the unusual circumstances of the case, we accordingly conclude that Kabong has a valid registered interest in the house plot which it is not open to the appellant to challenge.

Result

[21] The appeal is accordingly dismissed. The respondent is entitled to costs to be taxed if not agreed.

Blanchard JA

Hansen JA

Heath JA