Temate v Bokeang [2024] KIHC 32; Civil Case 40 of 2015 (27 August 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 40 OF 2015

BETWEEN: TEWETI TEMATE FOR ISSUES OF KAOBUNANG TEWETI, ARIKI TATOA FOR ISSUES OF ERITABETA TEWETI

Applicant

AND: MARIA BOKEANG AND BAUEATA BOKEANG

Respondent

Date of Hearing: 21 AUGUST 2024
Date of Judgment: 27 AUGUST 2024

Appearances: Ms. Botika Maitinnara for the Applicant

Ms Taoing Taoaba for the Respondent

JUDGMENT

Introduction:

1. The applicant applied for an extension of time for the court’s leave to take out certiorari proceedings to quash the decision of CN 9/05, which was delivered on 3 March 2005. CN 9/05 concerned the adoption of Baueata Bokeang by Bauriri Tooti, the Applicants’ aunty.
   

Extension of Time Principles

2. The principle to consider whether or not to extend time is laid out in the leading case of Batee v Trustee for Jehova’s Witness Church [2006] KICA 17; Land Appeal 05 of 2005 (26 July 2006)
   
3. Paragraph 16 of the judgment is quoted below;
   

“16. As these and other authorities make clear, leave will not normally be granted unless the applicant shows (i) an acceptable explanation for the delay and (ii) that in all the circumstances, it would be fair and equitable to extend time. Significant questions in approaching the exercise of discretion will be the magnitude of the delay, the reasons for it, any prejudice suffered in consequence, and the strength of the appellant’s case. In the end, however, there is an overriding requirement to do what is just.”

Reasons for the Delay

4. The applicants are cousins of one of the respondents, Bauriri Tooti. Bauriri Tooti adopted Baueata Bokeang, who was also one of the respondents. The other respondent, Maria Bokeang, is Baueata Bokeang's natural mother.
   
5. In 2009, in CN 9/05, Bauriri Bokeang brought an adoption case in North Tarawa to adopt Baueata Bokeang. She brought along Maria Bokeang to consent to adopting her child. The applicants did not know about this adoption. When Bauriri died on 13 May 2012, the applicants de-registered her from all her lands in South Tarawa and North Tarawa and registered their titles over the lands. This was done on 24 May 2012. Then, they started collecting the rents from the leased lands. When Baueata knew, he applied to the High Court to quash their registration after Bauriri. The registration was quashed because Baueata was the adopted son of Bauriri. That was when the applicants knew of this adoption, sometime in July 2012, and they immediately filed this case in September 2012 to quash the adoption. They were suspicious that the adoption was done in North Tarawa to hide it from them because Baueata and Bauriri had been living in South Tarawa.
   
6. the respondent replied that the applicants had slept on their right. It had been seven years since the adoption when they filed this application to quash it. They knew that Bauriri had been living with him all the time in Banraeaba and North Tarawa, and they never bothered to ask why. They never came to visit her or take care of her. They just left her with the stranger to look after her. The adoption was done in North Tarawa because Baueata worked there then, and Bauriri stayed with them.
   

Prejudice to the Respondent

7. The applicants submitted that the respondent would not be prejudiced if the leave was granted as he has not developed or invested in Bauriri Tooti's lands. The respondent, through Counsel, submitted that if the application were granted, he would suffer prejudice as his adoptive mother, Bauriri, had died.
   

Strength of the case

8. The applicants submitted that their case has merit because the adoption did not comply with section 9 of the Native Lands Code. To the applicant, section 9 requires that in adoption cases, the next of kin of the adoptive parent must be invited to the proceeding to show whether or not they would be left in hardship if the adoption is approved.
   
9. The provision 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.”

10. The applicants argued that their hardship could be considered only when invited to the court.
11. The respondents submitted that the applicant neglected to care for and look after their cousin, Bauriri Tooti, during her lifetime.
    

Analysis

12. I believe this case raises an important question of law that should be properly considered by the court: whether or not Bauriri Tooti's next of kin would be left in hardship by the adoption. The fact that the respondent was adopted almost twenty years ago is equally important. The Court will consider these two issues at the hearing of the substantive application.
    
13. The delay is substantial; it was seven years after the adoption. However, the reasons are reasonable. The applicants became aware in 2012 when Baueata filed a case against them to quash their registration over Bauriri’s lands.
    
14. I agree that an extension of time must be allowed for these reasons.
    

ORDER

15. The application for an extension of time to allow the applicant to apply for certiorari is allowed.
    
16. The hearing date of the substantive application will be fixed tomorrow when this decision is announced.
    

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice