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Takato v Kabaneiti [2003] KIHC 143; Land Appeal 26 of 1999 (14 November 2003)

IN THE HIGH COURT OF KIRIBATI
LAND JURISDICTION
HELD AT ARORAE
REPUBLIC OF KIRIBATI

High Court Land Appeal 26 of 1999

Between:

TEN RETI TAKOTO
NEI MARIA TIOTE
Appellants

And:

N. TEMAU KABANEITI
N. MIIRA ROBEITI
Respondents

For the Appellants: Mr John O'Sullivan
For the Respondents: Ms Taoing Taoaba

Date of Hearing: 14 November 2003

JUDGMENT
(Ex Tempore)

The point at issue is whether or not the respondents had been adopted by Tebetaio Aitobere. The magistrates realized that the evidence of adoption was weak. They said "the court confirms this adoption and despite it being beyond the confines of adoptive laws".

Under S.7(i) of the Native Lands Code "a gift to an adopted grandchild may only be given if the adoptive grandparent has registered the adoption before the Court". There is no evidence that Tebetaio ever did this. It follows that at his death – the time from which his will speaks – the respondents had not been adopted. The Court could not, at a later time, approve the adoption because the adoptive grandparent had not registered the adoption before the Court. The magistrates' decision rested on the assumption of the adoption. It follows that the decision cannot stand.

Counsel pointed to Ss 5 and 6 of the Code. The Court could have considered these sections and still confirmed gifts to the respondents. We think the Court should have another opportunity now to do so.

The appeal is allowed and the decision of the magistrates quashed. The case is returned to the magistrates for rehearing in accordance with these reasons.

THE HON ROBIN MILLHOUSE QC
Chief Justice

BETERO KAITANGARE
Magistrate

RARATU IEITA
Magistrate