Mataua v Kaea [2025] KIHC 29; Land Appeal 04903 of 2024 (3 June 2025)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT LAND APPEAL 2024-04903

BETWEEN: Mwea Mataua & Raen Ioteba
Appellants

AND: Teeri Kaea & Rosalin Ioteba
Respondents

Date of Hearing: 29 April 2025
Date of Judgment: 3 June 2025

Appearances: Ms. Taaira Timeon for the Appellants
Ms Teratabu for the Respondents

JUDGMENT

The Case

1. The appeal arose from the magistrate court decision in CN 2024-02880 MC/LA/ST, which refused to grant the adoption of the child because the adoption was not made in accordance with the provisions of the Lands Code of the Native Lands Ordinance, Cap 61.
   
2. The appellants are the adoptive parents, and the respondents are the real parents of the child. Neither party is happy with the magistrate court decision, but the appellants have filed an appeal.
   

Grounds of Appeal

3. There are two grounds filed in support of this appeal.
   
   1. Error in law- Refused to grant the adoption application in contravention of section 22B subsection (4)(b)(iii) Amendment to the Birth, Death and Marriages Registration Ordinance no. 2 of 2007 when there was evidence that the respondents agreed to the adoption application.
      
   2. Error in law- misconstrued clause 9 of the Gilbert and Phoenix Island Lands Code and refused to grant the adoption application since the brothers and sisters of the appellants did not give consent to the application.
      

Submissions and Analysis

4. Counsel for the appellants explained that the appellant, Raen Ioteba, is the sister of the respondent, Rosali Ioteba, who is the natural mother of the child to be adopted. As mentioned above, the respondents gave their consent to the adoption in the proceedings below.
   
5. Section 61 of the Magistrate Court Ordinance gives jurisdiction to the Magistrate Court to deal with native adoption. The provision states as follows;
   

“The Court shall adjudicate on all cases brought before it concerning native adoption and the conveyance of land which such adoption may entail.”

6. Counsel for the appellants submits that the above provision is silent on the procedure for bringing the adoption application and the requirements for approval by the court. Counsel cited section 22B of the Registration of Births, Deaths and Marriages Amendment Act as relevant. The relevant parts are quoted below;
   

22B.

(2) An application for a certificate that a person has been adopted in accordance with customary law shall be made to the magistrates’ court for the district in which the person is ordinarily resident.”

(3) “An application under this section is a land matter, and the magistrates’ court hearing the application shall be composed (or deemed to be composed) in accordance with section 7 (4) of the Magistrates’ Courts Ordinance.”

(4) “On the hearing of an application under this section, after considering such evidence as the applicant may tender in support of the application, if the magistrates’ court is satisfied that—

(a) the person to whom the application relates and the prospective adoptive parent or parents are of I-Kiribati descent;
(b) where the person to whom the application relates is under the age of 18 years –

• (i) the natural parents of the person;
• (ii) where one of the natural parents has died, the surviving natural parent; or
• (iii) where both natural parents have died, the guardian or guardians of the person, consent to the application; and
  

(c) the adoption of the person is in accordance with customary law,

the magistrates’ court may issue a certificate to the effect that the adoption is in accordance with customary law.

(6) The fact that a customary adoption has not been registered under this section does not affect the validity of that customary adoption.

(7) This section does not affect the application of clause 9 of the Gilbert and Phoenix Islands Code.

(8) In this section, “customary law” has the meaning given by section 5 of the Laws of Kiribati Act 1989.

7. Counsel also refers to section 5 (1) of the Laws of Kiribati Act, which provides that;
   

“5(1) customary law comprises the customs and usages existing from time to time of the natives of Kiribati.

(2) Subject to section 4 (1), customary law shall have effect as part of the law of Kiribati, except to the extent that it is inconsistent with the enactment or an applied law published under section 11.

(3) Schedule 1 has the effect with respect to the determination and recognition of customary law.”

8. Section 4 of the same Act provides the laws of Kiribati as follows –
   
   • (1) The constitution is the supreme law of Kiribati and the other laws comprising the laws of Kiribati have effect subject to its provisions.
   • (2) In addition to the Constitution, the laws of Kiribati comprise –
     
   • (a) Every ordinance and every Act and all subsidiary legislation made thereunder;
   • (b) Customary Law;
   • (c) The common law of Kiribati;
   • (d) Every applied law.
     
9. The appellants submit that the Native Lands Ordinance and the Gilbert and Phoenix Islands Code, specifically clause 9, fall within the category of law described in subsection (a) – “every...Ordinance and all subsidiary legislation made thereunder.” Counsel states that customary law is a distinct body of law, separate from the Act and the Ordinance, but is often referred to as an unwritten law, encompassing the customs and usages that have evolved over time. Clause 9 of the Gilbert and Phoenix Islands Code pertains to adoption and is not part of the unwritten law or customary law; instead, it is classified as written law, specifically as an ordinance that was part of British Law and continues to be applicable since before Independence in 1979.
   
10. Counsel further states that the consent of the natural parents for the child's adoption aligns with section 22B (4)(b). However, according to the appellants' counsel, the magistrate court overlooked this detail, which constitutes a legal error. Counsel contends that section 61 of the Magistrate Court Ordinance is not the relevant authority, although it does provide jurisdictional powers. This is the appellants’ submission regarding their first ground of appeal.
    
11. For their second ground of appeal, Counsel explains that one of the reasons for refusing the adoption was the absence of consent from the siblings of the adoptive parents, based on the court’s understanding that section 9 involves the transfer of property (land) from the adoptive parents. The appellants contend that this is not a legal requirement for adoption. They argue that only the consent of the natural parents and adherence to customary law constitute the legal requirements for adoption.
    
12. Section 9 of the Lands Code is provided below;
    
    1. “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.
       
    2. An adoptive child will receive his inheritance from his real father and mother in the same way as his brothers and sisters.
       
    3. 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.”
       
13. Counsel submits that the above requirement is not regarded as customary law; rather, it is a piece of subsidiary legislation that originated from the Native Lands Ordinance, and therefore is irrelevant.
    
14. As mentioned above, Counsel for the respondents did not make any submission as they had already indicated their consent to the adoption at the lower court.
    

Analysis

15. The magistrate court’s decision in refusing the adoption was based on the following;
    
    • - There was no evidence from the adoptive mother (respondent), Raen Ioteba.
    • - Section 9 of the Native Lands Code requires the consent of the siblings of the adoptive father, as the adoption will involve the transfer of property from the adoptive father to the child.
    • - None of the adoptive father’s siblings appeared, and no proof of summons served; only Counsel’s information from the Bar concerning this matter, but the court did not consider it.
    • - Even if s22B (4) of the Birth, Death and Marriages Act is applicable, the magistrate did not receive a submission from Counsel regarding the requirement as stipulated in this Act that the adoption must comply with customary law.
    • - The magistrate's court believes that customary law has been encoded in the Native Lands Code under section 9, hence the applicability of this provision.
      
16. We have considered both provisions of these two laws: s.22B of the Births, Deaths and Marriages and section 9 of the Native Lands Code. They both deal with native adoption, therefore, are relevant. We also agree with the magistrate court that Kiribati customary law concerning adoption has been encoded in the Native Lands Code.
    
17. Section 9 of the Native Lands Code addresses the gift of a native land to an adopted child. The primary focus is on the distribution of family lands, which is why the adoptive father's siblings must have a voice in the matter, because he confirmed in his evidence to the magistrate that he wishes for his adopted child to inherit from him by customary law. The adoptive parents have no biological children.
    
18. According to section 9, when an owner dies issueless (without children), their next of kin may inherit their lands or shares in the family lands. The magistrate court is obligated to ensure that, before approving the adoption with a gift of land, the next of kin are not left in hardship unless they have been deemed guilty of neglect. The gift must be decided at the time the adoption is registered, whether the child is to receive from both adoptive parents or the adoptive father or mother only; otherwise, the child is deemed to inherit from both adoptive parents. We acknowledge that the adoptive parents do not have biological children, so it is important to consult their siblings. Therefore, we support the magistrate's decision to require the consent of the adoptive father’s siblings for the adoption. This is necessary because the adoptive father wants his adoptive child to inherit from him according to customary laws; if this were not the case, their presence would not be required.
    
19. In our view, since section 9 mainly concerns the gift to an adoptive child, an adoption may also be approved without a provision for a gift, if parties wishes for it, but this must be expressly stated by the adoptive parents to the magistrate court and in the court’s decision; something along this line: "Regarding section 9 of the Native Lands Code, the adoption is approved and according to the wishes of the adoptive parent, the adoption will not entail the gifting of any native land from the adoptive parents." In such cases, the child is adopted but will not inherit native lands from the adoptive parents, excluding other properties. Meaning, real issue or siblings of adoptive parents or next of kin may not be required to attend the proceeding if the adoption will not involve the gifting of native lands.
    
20. We also consider that the adoptive mother did not provide evidence to the magistrate court concerning this adoption. This was one of the reasons the magistrate court did not approve the adoption. We agree with the magistrate’s decision not to approve the adoption. It is crucial for the adoptive mother to demonstrate to the court that she consented to the adoption, as this reflects her willingness to take on full parental responsibility for the child —a vital matter when determining the child's best interest in adoption cases.
    

Summary

21. In light of the above findings, the appeal is dismissed. The decision of the magistrate court in CN 2024-02880 MC/LA/ST remains in effect.
    

Order according.

THE HON. TEITIRO SEMILOTA MAATE MOANIBA
Chief Justice

TITAN TOAKAI RITETI MANINRAKA
Land Appeal Magistrate Land Appeal Magistrate