IN THE KIRIBATI COURT OF APPEAL
LAND JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Land Appeal No. 1 of 2003

BETWEEN:

Ema Inatio Beia Inatio Torowi Inatio
Appellants

AND:

Merian Inatio Raweaitina Inatio
Respondents

Coram: Hardie Boys JA Tompkins JA Penlington JA

Counsel: Banuera Berina for Appellants
Taoing Taooba for Respondents

Date of hearing: 13 August 2003
Date of judgment: 16 August 2003

JUDGMENT OF THE COURT

This is a land appeal. It raises a question of law as to the jurisdiction of the Land Court to determine the paternity of the respondents.

Inatio Binoka (the deceased) died in 1983. He owned lands in Kuria and Aranuka.

The appellants are the children of the deceased. The respondents also claim to be children of the deceased. The distribution in dispute concerns the deceased's lands in Kuria.

The Various Proceedings

There have been a number of proceedings culminating in the present appeal.

In 85/84 (which in turn was a completion of 176/84 as ordered by the High Court in HCLA 122/84) the Lands Court was concerned with the distribution of the deceased's land in Kuria. In a decision given on 16 November 1984 it confirmed the distribution of the deceased's land amongst his next of kin. The respondents were not summoned to this hearing and were not given a share in his estate.

In 57/86 the Lands Court delivered a decision on 1 August 1986. This proceeding concerned the distribution of the deceased's land on Aranuka. During that distribution all the appellants were present or represented. Likewise his other children (now the respondents) were present. The Court confirmed that the respondents were the children of the deceased and that they should inherit on the same basis as the deceased's other children.

In HCLA 153/87 the respondents challenged the distribution in 85/84 to which we have referred above. The respondents relied on the fact that they were not summoned in those proceedings. Their challenge came before the High Court as an appeal. In a judgment given on 4 August 1988 the High Court held:

In this circumstance before we can determine whether the appellants were entitled to share in the estate and therefore entitled to be summoned, the issue of their paternity has to be tried and determined by the Lands Magistrates as required by law.

We therefore strike off the appeal and send back the case to the Lands Court to determine the issue of paternity and if satisfied that they are the children of Inatio, to redistribute the estate.

Appeal struck out.

Shortly after this judgment the High Court was seized of another proceeding in the estate. This was HCLA 169/86 which was an appeal by the present appellants against the decision of the Lands Court in 57/86 delivered on 1 August 1986 to which we have already referred. The appeal in HCLA 169/86 came on for hearing in the High Court on 31 August 1988. On the second day of the hearing the appellants applied for and were granted leave to withdraw the appeal. In a short judgment delivered on 1 September 1988 the High Court recorded the withdrawal of the appeal and confirmed the distribution "approved and confirmed by the magistrates" in 57/86. The appeal was thereupon dismissed.

The Determination of Paternity

The trial of the paternity issue as ordered by the High Court in its judgment of 4 August 1988 came on for hearing before the Lands Court at Tuangaona in April 1990. The respondents were the applicants and the appellants were the defendants. The respondents' application was for registration as the next of kin of the deceased along with the deceased's other issue in respect of his lands in Kuria. The respondents contended that they were the children of the deceased and that during the distribution of the deceased's lands on Aranuka the appellants had agreed that they should be registered as his children.

The appellants actively opposed the respondents' application. They denied that the deceased was the father of either respondent. Additionally they contended that the application was too late. They relied on Section 65(2)(i) of the Magistrates' Court Act Cap. 52. We shall return to this provision later in the judgment.

The Lands Court ruled in favour of the respondents. In coming to their conclusion the magistrates reviewed the evidence given before them and also relied on the High Court decision in HCLA 169/86 given on 1 September 1988. The magistrates held that the respondents are the children of the deceased and that they should inherit after him with his other children. Inferentially the magistrates rejected the argument that the application was too late.

Appeal to the High Court

From this decision the appellants appealed to the High Court. In the High Court the appellants again argued that Section 65 of the Magistrates' Court Ordinance restricted the power of the Lands Court to determine paternity and that the determination of paternity was too late. It is now convenient to set out Section 65. It provides:

65. (1) If 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 may make 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 sum of money or foodstuffs due under such a maintenance order may be claimed as a civil debt in the magistrates' court.

The High Court held that the Magistrates were doing what the High Court had directed should be done. At law a court must have power to enquire into paternity: in this instance the task was given to the Magistrates. Irrespective of section 65 ....., we think the task was rightly given and the Magistrates were within jurisdiction.

The High Court further held that paternity is a matter of fact and that the magistrates' decision having been properly reached on that matter of fact must be upheld. The appeal was accordingly dismissed.

Appeal to the Court of Appeal

The appellants now appeal to this court. The grounds of the appeal are that the High Court erred in law in finding that the task of enquiring into the paternity of the respondents had been rightly given to the magistrates and that the magistrates had acted within their jurisdiction in ruling on the issue.

Mr Berina for the appellants argued that the powers of the Lands Court are prescribed by statute and that that court is confined to adjudicating on land causes and related matters. He accepted that paternity is a related matter and that the Lands Court has jurisdiction to determine that issue but that the power to do so is limited by virtue of section 65 of the Magistrates Ordinance (which we have set out above). Section 65 was at the forefront of Mr Berina's argument. He submitted that on a proper construction of section 65, and especially having regard to section 65(2)(i) the court proceeding had to be brought within two years of the birth of the child and that after that age it was too late for the court to rule upon the paternity issue.

Assuming the validity of that proposition Mr Berina then argued that the High Court was unable to make an order which required the Lands Court to determine paternity in a situation which was beyond the reach of section 65. In other words the High Court could not order the Lands Court to carry out a task for which the latter court had no jurisdiction.

Mr Berina then contended that in the context of the present case the respondents were over the age of two years and that accordingly the High Court had no power to make the order of 4 August 1988 requiring the Lands Court to determine the paternity of the respondents. As a consequence, so Mr Berina contended, the Lands Court in determining the paternity of the respondents itself acted beyond its powers and later the High Court in upholding the appeal of the respondents (which decision is now under appeal) erred in holding that the Lands Court acted within its jurisdiction.

During Mr Berina's argument, and in answer to questions from the Court, he frankly conceded that if his section 65 argument was unsuccessful then the Lands Court had jurisdiction to determine the paternity of the respondents and that it had properly acted within that jurisdiction.

Decision

For the reasons which we now set out we cannot accept Mr Berina's argument on section 65.

In our view section 65 does not have the construction contended for by Mr Berina. The purpose of section 65 is two-fold. First to provide a simple procedure to ascertain the paternity of any child who is born of a single woman on any island or district where a magistrates court is situated; and secondly to make orders "subject to anything to the contrary in native customary law" for the future support of that child in the circumstances set out in section 65(i), (ii) and (iii).

Section 65(1) is silent as to age. The subsection contains three pre conditions for it to operate. It applies where (i) a single woman is delivered of a child, (ii) in any island or district, (iii) where a magistrates court is situated.

Section 65(2) deals with three particular situations in which a magistrate can in addition to making a paternity order, make an order for the future support of the child. That provision is subject to anything to the contrary in the native customary law.

We now turn particularly to section 65(2)(i) which was central to Mr Berina's argument. That sub paragraph refers to the situation where a father being a native accepts as his own the child who has been the subject of the paternity order. It provides that after the age of two years that child shall reside with its father or its relations and shall inherit in the same way as the father's legal children. In our view that provision does not restrict the operation of section 65(1) or the opening words of section 65(2) to a child under the age of two years as contended for by Mr Berina. That conclusion is sufficient to dispose of the appeal. There is however one further reason in our view why the appeal should be dismissed.

The appellants' challenge to the power of the Lands Court to determine the paternity of the respondents is an attempt to overturn a decision of the High court namely the judgment delivered on 4 August 1988 in HCLA 153/87, which was never the subject of an appeal. Such a challenge is clearly misconceived.

Result

Accordingly for the reasons stated the appeal is dismissed.

Hardie Boys JA
Tompkins JA
Penlington JA

Costs to the Respondent to be agreed or taxed.