Nanginteiti v Kaio [2024] KIHC 12; Civil Case 10 of 2023 (2 May 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 10 OF 2023

BETWEEN:
NENEBATI NANGINTEITI
TEUNAIA MIKAERE
Applicants

AND:
MANGARITA KAIO
KAAKOA TEMWARE
Respondents

Date of Hearing: 22 APRIL 2024
Date of Judgment: 2 MAY 2024

Appearances: Ms Botika Maitinnara for the Applicant
Ms. Marewenimakin Babera for the Respondent

JUDGMENT

Introduction:

1. The Applicant applied for an order of certiorari to quash the decision of Betlan 105/14. Despite the application being late, this Court granted an extension of time on November 17, 2023, with reasons stated in that judgment.
   
2. Betlan 105/14 concerns the confirmation of the 2009 adoption of a child, Kaio Nauarai, by the late Rouea Burebure and Mangarita Kaio, the first-named respondent. Rouea Burebure was a brother of the applicants, Nenebati Nanginteiti and Teunaia Mikaere, through their adoption by their adoptive father, Teabike Temare, in CN 868/09.
   
3. In 2020, Nenebati and Teunaia applied to de-register their late adoptive father, Teabike Temare, from his lands. Their application was granted in Bailan 235/20, so both applicants were registered over Teabike Temare's estate. Rouea died in 2013 before this de-registration case. The applicants believed he died issueless, as shown in his death certificate, so he was not registered with them.
   
4. When Mangarita, Rouea's widow, became aware of the de-registration case, she applied for a stay in 2021 in case number MA 234/21 on behalf of her adopted son. During the proceedings of MA 234/21, Mangarita disclosed the adoption minutes of Betlan 105/14 to the court and the applicants. She contested that her late husband, Rouea, died issueless as they had adopted a son sometime in 2009, whose adoption was confirmed in 2014 in case number Betlan 105/14 when the 2009 adoption Order and court minutes could not be found.
   
5. Upon realising this confirmation of the adoption case, Betlan 105/14, the applicants applied for the decision to be quashed. Their application was supported by an affidavit from Teunaia Mikaere dated 16 February 2023.
   

Issues and Analysis:

6. The applicants pleaded section 9 of the Lands Code, which was breached when the magistrate failed to invite them to prove their hardship in the proceeding of Betlan 105/14. The section is quoted below;
   

“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 of his family. Such an adoption may be annulled by the court if it is proved that the adoptive child is not dutiful.

An adoptive child will receive his inheritance from his real father and mother in the same way as his brothers and sisters.

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

7. According to the applicants, the magistrate court should hear them out on the issue of their hardship; that’s the only way it could determine the matter. The respondent argued that the provision does not explicitly require their attendance; the court is only required to consider if the adoptive parent's real issue or his family, if it is issueless, are not left in hardship if the adopted child receives a gift from the adoptive parent.
   
8. The applicant’s argument is twofold. First, there was never an adoption case done in 2009 because there was no record of it with the court. The respondent failed to produce the minutes or the adoption order and could not provide the registration record of this case in the land register. Second, if it were true that there was an adoption in 2009, then the applicants should have been invited to the hearing to prove their hardship if the adopted child was to receive land from his adoptive father, pursuant to section 9 of the Native Lands Code. This argument also applies to the 2014 case when the adoption was confirmed.
   
9. On the other hand, the respondent raised the issue of prejudice towards the adopted child if the adoption is to be cancelled. The adopted child has long been known as the child of the late Rouea and Mwangarita Kaio, his adoptive parents, since 2009. The case of Kakianako v Maua (2007) High Court Civil Case 22 of 2007, 25 May 2007, was referred to in support of this point. On the second page of the judgment, in the 5th last paragraph, the court states, "The longer the family has known about the adoption, the weaker their case to have it set aside.” Further, on the last page, the court also states the following;

“ I find that the applicants had known of the adoption for several years, perhaps as many as six, before doing anything 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.”

10. The affidavit of Mwangarita, paragraphs 6 and 13, states that the applicants are their neighbours, so they knew that the couple took care of the child. The affidavit of Teunaia Mikaere, one of the applicants, shows that he never heard about the adoption from his brother, Rouea. I find that Mwangarita’s evidence is not enough to prove that the applicants knew about the adoption. They may be aware that Mwangarita and Rouea (their brother) raised the boy, but that doesn't mean that they know that the boy was adopted. For this, I accept Teunaia’s evidence.
    
11. I also note the point raised by Counsel for the applicant that Mwangarita Kaio’s evidence that the 2009 court minutes and adoption order were lost is hearsay unless proof from the court registry is adduced to confirm it. However, this 2009 adoption was confirmed in Betlan 105/14. Rouea’s mother (second-named respondent) also confirmed the adoption in her affidavit.
    
12. Even so, what’s missing from the confirmation of the adoption judgment (Betlan 105/14) is the critical fact that the court was satisfied that the adoptive parent’s family (if issueless) was not left in hardship if the adopted child inherited from his adoptive parents. I am mindful of the requirement of paragraph one of section 9 (the text is quoted in paragraph 6 above), which requires that for the adopted child to receive a gift from the adoptive parent, the adoption must be registered in court. However, for the court to register or approve the adoption, it must first be satisfied that the real issues of the adoptive parent or family, if he is issueless, are not thereby left in hardship. This requirement is a prerequisite to paragraph three (text quoted in para 6 above), which allows the adopted child to inherit from his adoptive parents, either both parents or the father or the mother only. This requirement was not satisfied in Betlan 105/14, and even if it was just a confirmation of the adoption, the magistrate court in Betlan 105/14 must also consider the issue of hardship. Without this, the adoption of a child is not complete.
    
13. Having mentioned paragraph three, the applicant also submitted the requirement that when the adoption is registered, the adoptive parent must decide on the inheritance of the adopted child, whether to receive from both parents, the father only or the mother only. This argument is no longer relevant to my findings above. Nevertheless, for academic purposes, paragraph three intends for the adopted child to be treated equally as a real issue; therefore, regardless of this arrangement, the adopted child must still inherit from his adoptive parents; from both father and mother, or father only or mother only.
    
14. I also wish to touch on the point raised by the respondent that interfering with a person’s status is a serious matter, especially if that person had been known for long by the family of the adoptive parents that he was the adopted child; see Kakianako v Moua. The point is understandable, but it is irrelevant to the case at hand as the applicants did not know that the child had been adopted by their brother (refer to my discussion in paragraph 10 above).
    
15. The respondent also argued that the applicants failed to show evidence before this court about their hardship; they only complained that they were not invited to the proceeding. This point is academic as I have found no evidence that the court in Betlan 105/14 had considered the issue of hardship to the adoptive parent's family or that the previous court had considered it in 2009.
    

Conclusion:

16. In light of the above reasons, this Court makes the following decision;
    1. The application for an order of certiorari is granted.
    2. The decision of Betlan 105/14 is quashed.
    100. The case is remitted to the magistrate court for rehearing. All interested parties must be invited.
    4. Cost to the applicant, to be agreed or taxed.
       

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice of the High Court