Ekeata v Mareima [2024] KIHC 41; HCLA 6 of 2020 (27 August 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT LAND APPEAL 6 of 2020

BETWEEN: RAURENTI EKEATA, TEBORA EKEATA, TEKEI EKEATA, BURETAU EKEATA, MARIA EKEATA
Appellants

AND: MAREIMA
Respondent

Date of Hearing: 4 DECEMBER 2023
Date of Judgment: 27 AUGUST 2024

Appearances: Ms Taaira Timeon for the Appellants
Ms Marewenimakin Babera for the Respondent

JUDGMENT

1. The Appellants filed their appeal against the Magistrates Court's decision in Bailan 4/19. The decision allows the Respondent, Mareima, to be registered as the child of Ekeata, the Appellants' father.
   
2. The appellants were not satisfied with the decision in Bailan 4/19 and based their appeal on the following grounds;
   

Grounds of Appeal;

1. The Magistrate court erred in law in deciding that the Respondent must be registered as the child of Ekeata Barekiau against the weight of the evidence;
   
2. The decision of the Magistrate Court was either against the requirement of evidential proof of section 65(2) of the Magistrate Court Ordinance Cap 52 that;
   
   • (a) It must be the putative father of the child that must appear in court to respond to the inquiry of the paternity of the child or the Respondent as to whether he denied or admitted paternity of the Respondent when the evidence presented before the Court below was that Ekeata Barekiau had passed away at the time this paternity application was brought into court; and
     
   • (b) At the time a paternity application was brought into court, there was an element that the Respondent must come within a definition of a child, but according to the evidence, the Respondent was 57 years of age.
     

3. Section 65(2) of the Magistrate Court states as follows;

“ Paternity

65. (1) If in any island or district where a magistrates' court is situated a single woman is delivered of a child, the court may summon before it that woman and all other such persons as it may think fit and may enquire into the paternity of the child.

(2) Subject to anything to the contrary in the native customary law, the court makes an order regarding the paternity of the child and its future support in one of the following ways -

(i) If the father, being a native, accepts the child as being his, such child shall, after reaching the age of 2, reside with the father or his relations and shall, in accordance with native customary law, inherit land and property from his father in the same way as the father's legitimate children; or

(ii) If the putative father, being a native, does not acknowledge paternity of the child, but the court is satisfied that he is the father of the child, it may order that the child shall live with the mother and may transfer to the child title to any such portion of land or other property owned by the putative father as shall be necessary for the maintenance and -support of the child; and

(iii) If the putative father, being a native does not acknowledge paternity of the child, but the court is satisfied that he is the father of the child, it may order that the child shall live with the mother and may if such putative father owns no land which will be of assistance in maintaining the child, order monetary maintenance up to an amount not exceeding $2 per month or maintenance by supply of foodstuffs to be paid by the father to the mother or whoever is supporting the child, until such time as the child reaches the age of 21, or the father inherits sufficient land to allow for a transfer as provided for in paragraph (ii), and in which event a transfer shall be ordered in substitution for the order for maintenance, and any sure of money or foodstuffs due under such a maintenance order may be claimed as a civil debt in the magistrates' court.

4. The Appellants argued that section 65(1) requires that the single woman or mother of the child must appear in court as a compulsory witness together with other witnesses that the court may think fit to prove the child's paternity. Mareima’s mother, Nei Kiebu, had already died when Mareima brought this case. Mareima and one other witness, Tebanikarawa Aiwa, a long-time resident of Nikunau, were the only witnesses for Mareima. Likewise, Ekeata had also passed away before the proceeding. Ekeata must be present in the proceeding to answer the paternity case against him. Therefore, the shreds of evidence from Mareima and Tebanikarawa were insufficient to prove paternity. Mareita’s evidence was that her mother told her that her father was Ekeata; therefore, hearsay evidence.
   
5. In response, the Respondent, through Counsel, referred this court to the case of Inatio v Inatio [2003] KICA 9; Land Appeal 01 of 2003 (16 August 2003). In that case, the Court of Appeal ruled that the purpose of section 65(1) is to provide a procedure in paternity cases for a child born of a single mother on any island or district, and section 65(2) is to make orders subject to anything to the contrary in native customary law for the future support of the child in the three circumstances set out in paragraphs (i)(ii) and (iii) above.
   
6. We also have the same view as the Court of Appeal in the Inatio v Inatio in interpreting section 65 of the MCO. Whatever the evidence was before the magistrate court, that evidence must carry weight to prove the child's paternity. This does not mean that, in every paternity case, the single mother and father must be witnesses.
   
7. The magistrate court in Bailan 4/19 accepted the evidence of Mareima and Tebanikarawa as the truth in the matter, and this evidence was not negated by the Respondents, now Appellants. Mareima’s evidence was that she knew from her mother that her father was Ekeata. She was also invited to Marakei Island by her father, Ekeata, to stay with them for a while, and at that moment, Ekeata told her that she was his child. The magistrate court did not accept the evidence of the Appellant’s mother when she said that the reason Mareima came to them in Marakei was that Mareima wrote to Ekeata saying that she got into a fight with one person because that person said that Mareima had no father. The magistrate court did not believe this evidence and stated that if that were the reason, would Ekeata agree to invite her to stay with them in Marakei if he knew she was not his child? Tabenikarawa’s evidence stated that she knew that Ekeata lived with Mareima’s mother in Nukinau as a couple before he married the Appellant’s mother. That was when Mareima was conceived. She also stated that at one time, she met Ekeata, and he asked her about his child in Nikunau named Mareima.
   
8. The second ground relates to the first ground. The Appellants argued that the only way the magistrate court would ascertain answers to the three scenarios in section 65(2)i, ii, iii was when Ekeata was in court. This argument must also fail as this provision was only provided as a guideline for future support of the child, as explained above and also in the case of Inatio v Inatio.
   
9. The third ground concerns the definition of the word ‘child.’ The Appellant argued that it means a person under 21, per common law. Mareima was 57 years old when she brought up this paternity case. Counsel for the Respondent submitted that section 65 is silent on the child's age. Counsel also argued that this argument does not apply to this provision as it would prevent persons above 21 years who know of the father from filing for paternity cases. The Court of Appeal in Inatio v Inatio also said the provision does not specify any age requirement for the child.
   
10. We agree with the Respondent’s argument. We believe that the use of the word "child" in this provision only refers to the concept that the person is the offspring of a single mother. When that person grows up, they will still be referred to as the child of that single mother. The use of this word in this provision has nothing to do with the child's age. This ground must also fail.
    

ORDER

For the above reasons,

11. The appeal is dismissed.
    
12. The decision of Bailan 4/19 remains valid.
    
13. Cost to the Respondent, to be taxed if not agreed.
    

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice

TITAN TOAKAI RITETI MANINRAKA
Land Appeal Magistrate Land Appeal Magistrate