Kakianako v Maua - Judgment [2007] KIHC 96; Civil Case 22 of 2007 (25 May 2007)

In the High Court of Kiribati
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 22 of 2007

Between:

Atiri Kakianako mt mm
Applicants

And:

Tekea Maua
Respondent

For the Applicants: Ms Berenike Iuta
For the Respondent: Mr Karotu Tiba

Date of Hearing: 21 May 2007

JUDGMENT

Application for order for certiorari. The application is imperfectly worded and at first it appears to be for judicial review. An application for judicial review is well out of time: CN 313/99 was heard on 23 November 1999: this application is dated 30 January 2007. The application proceeded despite imperfections in form.

The Court stresses that all applications should be in the correct form.

The respondent, Tekea Maua, claims that in November 1999 the late Kakianako had a feast to welcome him, Tekea, into his family as an adopted son. The date may have been 18 November. On 23 November minutes of CN 313/99 record the adoption:

Matter: Adoption or registration of Tekea Maua under me as one of natural child and to inherit to property after me together with my children.

Tekea Maua: I accept what Tekakianako have asked.

DSOB: Tekakianako T. M/46 lives at Bangantebure. I would like to adopt Tekea as one of my natural child, and he shall inherit my property together with the rest of my children.

That is all.

Q: How many children do you have?
A: Six.
Q: Are they conceded to this idea of yours?
A: 5 are schooling, but one is present at this time and she contended.

Kanrunga Tekakianako, F/22 lives at Bangantebure

I am pleased with what my father have said, that we shall be together with Tekea Maua and to have a share beside us.

Court Decision

Tekea Maua is to be registered as the child of Tekakianako. According to the law regarding the Native Adoption in Kiribati, he shall inherit a share together with natural children of his adoptive parent.

[It will be noted that the applicant is named "Tekakianako". Elsewhere he is named "Kakianako" and Kakianako is the name for him I shall use.]

Kakianako died on 3 April 2005.

The applicant who is the eldest daughter of the late Kakianako and Betero Tekakianako, one of his sons, have applied on their own behalf and on behalf of their brothers and sisters for an order of certiorari to have the adoption set aside. They complain that if Kakianako’s natural children must share with Tekea there will not be enough land to live on. Their counsel, Mr Berina, referred to section 9(i) of the Native Lands Code.

The longer the family has known about the adoption the weaker their case to have it set aside. The crux of the application is to decide when the members of the family knew of the adoption. The applicants claim not to have known of it until last year when it came to light in earlier proceedings.

I have had the benefit of seven affidavits and the cross examination of each of the deponents.

Very much at issue is whether the feast welcoming Tekea into the family was ever held. Some deponents in support of the application say there was a feast but it was to mark and celebrate the baptism of an infant, not to welcome Tekea.

Nei Terikano Kakianako, the mother of six of Kakianako’s natural children (he may have had two more by another woman) said the feast was for the baptism of a grand child. There never was a feast for Tekea. Nei Tiima Manikaai, the sister of Kakianako, deposed and gave evidence to similar effect. Karakoa Kakianako and Betero Kakianako, sons of the deceased now 18 and 25 or 26 respectively, say they knew nothing of any feast. So does the applicant, Nei Atiri but she was on Nonouti in 1999.

On the other hand Torua Nakabane, now a gentleman of 72, deposed and gave evidence that Kakianako asked him to be MC at the feast:-

10. Before the feast started and as a person in charge of the feast I explained what was the feast for from what I know from Kakianako.

11. I also confirm giving Tekea Teburae an opportunity to express his gratitude to Kakianako and his children for their acceptance in supporting him to be recognised as also one of Kakianako’s children.

Whether or not there were a feast, there is some evidence that family members did know of the adoption. It came out in cross examination:-

Nei Tiima

We heard that Tekea had been adopted by Kakianako but there was no feast. Knew before Kakianako’s death of the adoption.

Betero:-

I know he was adopted but not sure about his adoption. After the death of father he used to come and discuss estate. I knew then.

Nei Kanrunga, the one member of the family, apart from Kakianako to have been at the Court, has neither sworn an affidavit nor given evidence. I was told from the Bar table that she is in hospital. The only indication of her position is in a letter exhibited to Tekea’s affidavit sworn 13 April 2007:-

I do confirm that Teekea Teburae has been adopted by our father Tekakianako M. I also confirm that we all know about this adoption, and all of us (children) are happy about it.

I confirm that there has been a feast to confirm the adoption of Teekea to be one of us. After the feast it was confirmed by court, and I remember that an old man Torua was the (MC) during the feast.

I confirm myself with my sisters and brothers who are:

Betero K
Karakaua K
Teturo K
Kabwebwe K

We disagree to the idea of Nei Atiri as she knew about this adoption before the death of our father, and she was happy then.

The letter is signed and dated 25/11/06. Tekea was not cross examined about it but I do not give it much weight as it is second hand evidence.

Yet apart from Nei Kanrunga’s letter, I find it impossible to believe the adoption was not known by Kakianako’s family.

No reason has been suggested why it should have been kept quiet. One would expect it to have been talked about by Kakianako, Nei Kanrunga and Tekea. [The puzzle is why Kakianako wanted to adopt Tekea but that is not a puzzle I have to solve: it is beyond doubt that Kakianako did adopt Tekea.]

Nei Atiri deposed that neither her father nor her sister ever told her about the adoption. She had not known of a feast. Yet she did see Tekea building a brick house. She said he asked if he could live on the land but he mentioned nothing about adoption.

To the contrary Tekea:

8. At the time of the adoption one of his children Atiri was away in Nonouti as she married there. She came to Tarawa in February 2000. She came and lived beside me on the land. I met her and discussed the matter concerning my formal adoption by their father. She assured me that she has no objection to the adoption as she could not go against her father’s wishes.

9. I then started building my permanent brick houses on the land. While Atiri was with me on the land she also gave a lending hand in the construction of my house by providing foods and drinks for the workers who built my house and helped me in many other ways.

My impression of Tekea was not all favourable. He admitted that he had written at least one of the letters purported to come from his adopted siblings saying they were happy with his adoption. [The handwriting of letters said to have been written by Teturo and Kabwebwe is the same and their signatures look to be by the same hand.] Tekea admitted writing on behalf of Teturo the youngest and signing it.

Considering all the evidence I conclude on the balance of probabilities that a feast to welcome Tekea into the family was held. Consequently his adoption into the family must have been known late in 1999.

Even if my conclusion on the feast is wrong, there is other evidence, independent of the feast, that the adoption soon did become known. And why should it not have been? To conclude that it was not known would be against common experience of family life. If the adoption were not known in November 1999 it would have been not too long afterwards.

I find that the applicants had known of the adoption for several years, perhaps as many as six, before doing anything about applying to have it set aside. That is something to be taken into account in exercising my discretion whether or not to grant the application. As well, I should take into account that it is a serious thing to interfere with a person’s status. It is more serious to deprive a person of his or her status than to deprive a person of registration of a piece of land.

The adoption should not be quashed.

The application for certiorari is refused.

Dated the 25th day of May 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice