Tuiko v Waueri [1997] KIHC 62; HCLA 113.91 (29 July 1997)

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

HCLA 113/91

BETWEEN:

UTIROA TUIKO
TAOIETA TUIKO
RUTETI ROBEATA
UATIRE KAOIAKI
Appellants

AND:

TUEWI WAUERI
TIRETA TIAON
OTI TIAON
NANU TIAON
TURI TIAON
MAKUE TIAON
Respondents

Appellants 1, 2 & 3 in person
No appearance of Appellant No. 4
Mr Lambourne for the Respondents

Date of Hearing: 22 July 1997

JUDGMENT

The fourth named appellant is not present and we are told by the other appellants that he is ill. However, no adjournment is sought and the other appellants are prepared to proceed with the appeal.

In case No. 4/91 the appellants applied to the Arorae Magistrates' Court (Lands) for a distribution of the estate of the late Erioti Tuiko. The first and second named appellants are the brothers of the deceased and the third and fourth named appellants are his nephews. In rejecting the appellants' claim, the magistrates decided that the whole estate was to go to Tiaon, the adopted son of the deceased. The respondents are the children of Tiaon.

That decision is appealed on the following grounds:

"1. That we are not satisfied with the Lands Court decision in confirming that all lands of Erioti Tuiko should be transferred to under Tiaon, and we do not know the adoption of Tiaon by Erioti Tuiko also our fathers know nothing about the adoption, so we are now appealing against the decision.

2. That the Magistrates' Court (Lands) Arorae erred in law in not complying with High Court decision delivered on the 21/7/89 in case number 111/88 making an order to distribute all the lands of Erioti Tuiko. So for these grounds we therefore appealing against their decision".
   

As regards the first ground, counsel for the respondents has tendered an extract from the Adoption Register. It shows that Erioti adopted Tiaon on the 2^nd May 1951. The natural parents gave their consent to the adoption, as did the family of Erioti. The application for adoption was approved by Magistrate Tebao Awerika and the Village Warder, who were the Government officials on Arorae at the time.

Despite what the Adoption Register says, the appellants claim that they knew nothing about the adoption, as they were not consulted. This allegation does not appear to have been raised in the lower court; at least there is no mention of it in the minutes.

In any event, there is no proof that the adoption was not made in accordance with the law as it was in 1951 when the adoption was registered. When the Native Lands Ordinance and Lands Code were enacted in 1956 the court was required to be satisfied, before allowing the adoption, that the adoptive parent's family would not thereby be left in hardship (section 9(i) Lands Code). However, that provision does not apply to adoptions registered before it came into force. If, therefore the appellants and their fathers were not consulted about the adoption of Tiaon, the validity of the adoption would not be affected.

We therefore do not think there is any substance to the first ground of appeal.

As regards the second ground of appeal, the appellants have obviously misunderstood the decision of the High Court in HCLA 111/88. At least one of the present appellants - Utiroa - was also an appellant in that case. The decision of the High Court was simply to quash a distribution made by the magistrates' court, apparently on the ground that no distribution had been applied for and the magistrates had "no power to summon parties before them for distribution of the estate of a deceased estate owner". We say in passing that in view of Rule 27 of the Magistrates' Courts Rules we respectfully do not agree with that finding. In any case, the High Court obviously did not order the distribution of all the lands of Erioti Tuiko as alleged by the appellants.

We find that there is also no substance to the second ground of appeal.

It follows that the appeal fails and is dismissed.

The appellants are advised that they have a right to appeal to the Court of Appeal within 6 weeks.

THE HON R B LUSSICK
Chief Justice
(29/07/97)

TEKAIE TENANORA
Magistrate
(29/07/97)

BETERO KAITANGARE
Magistrate
(29/07/97)