Roteman v Tetaeka [1997] KIHC 14; HCLA 056.94 (15 May 1997)

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

HCLA 56/94

BETWEEN:

TARATOBA ROTEMAN
Appellant

AND:

N. ARIIN TETAEKA
Respondent

Appellant in person
Respondent by son Teakin

Date of Hearing: 12 May 1997

JUDGMENT

This is an application for leave to appeal out of time.

On the 1^st March 1972 in case No. 9/72 Roteman Kautabuki (the appellant's father) applied to the Makin Land Magistrates' Court to register the adoption of the respondent, Nei Ariin Tetaeka, as his daughter. Roteman and Nei Ariin were the only persons present before the court. The members of the court unanimously approved the registration of the adoption. We note from the court minutes that the court also approved the adoption by Roteman of a second person, Buta Tofinga. This second adoption is not relevant to these proceedings because, for some reason not explained to us, the appellant does not oppose it.

The appellant was not a party to the hearing in the lower court. He told us that he was in Nauru at the time and had no knowledge of the proceedings. He said that if the court had given him notice he would have come to court to express his opinion.

In fact the appellant did not seek to interfere with the adoption until the 8^th May 1994, when he wrote to the High Court asking to be allowed to appeal. This was, of course, some 22 years after the adoption had been registered. According to the appellant, he had first learned of the adoption in 1994 when his attention had been drawn to the register.

The respondent's son Teakin disputed this. He told us that the adoption had been known all over Makin. He went on to tell us that when the appellant's father fell ill, the appellant was asked to come back from Nauru but ignored the request. Not only that, but during his father's illness the appellant never once sent him any money, whereas Nei Ariin had looked after the father for the last 10 years of his life.

The appellant took issue with this. He told us that he never received any information about his father's illness but only the news that he had died. He also had sent his father money but it was always sent direct to his father and not to Nei Ariin.

We must say that we are not satisfied that the appellant has given a satisfactory explanation for the delay. We do not accept him when he says that he did not know about the adoption until 1994. He told us that he had spent nearly 10 years in Nauru and was in Nauru when the adoption was registered in 1972. This means that, at the very latest, he would have been back in Makin by 1982. Yet he claims not to have discovered the adoption until 12 years after that. In view of the small size of Makin we cannot believe that it took all that time for the appellant to learn that he had an adopted sister.

That, however, is only one reason why we have decided to refuse this application. The main reason is that only a party to the proceedings can appeal against the decision in those proceedings. It is clear that the appellant was not a party in the 1972 case. If the appellant considers that he has a justiciable claim then his only recourse is to bring separate proceedings in his own name. It is not something he can raise by way of appeal to the High Court.

Unfortunately, when the appellant wrote to the High Court in 1994 he was given incorrect advice by the then Acting Chief Registrar. Instead of being told that he had no right of appeal, the appellant was advised to file his appeal with the Court Clerk, Makin and pay a fee of $6.00. We very much regret that such bad advice was given and that the appellant has had to wait until now to learn the true position. Nevertheless, that does not alter the view we must take of this application.

For the reasons given, the application for leave to appeal out of time is refused.

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

THE HON R B LUSSICK
Chief Justice
(15/05/97)

TEKAIE TENANORA
Magistrate
(15/05/97)

BETERO KAITANGARE
Magistrate
(15/05/97)