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Teikori v Barekiau [2003] KIHC 264; Land Appeal 81 of 2000 (5 November 2003)

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

HIGH COURT LAND APPEAL 81 OF 2000

BETWEEN:

TEMEM TEIKORI AKATA BAREKIAU TIKOI BAREKIAU
TUMAI BAREKIAU
APPELLANTS

AND:

IOANE BAREKIAU
RESPONDENT

FOR THE APPELLANTS: MR JOHN O'SULLIVAN
FOR THE RESPONDENT: MS TAOING TAOABA

DATE OF HEARING: 5 NOVEMBER 2003

JUDGMENT

This appeal was part heard on 12th and 13th June and adjourned. We had granted an application by Mr O'Sullivan pursuant to Order 60 r. 15 to hear fresh evidence. We had evidence from Nei Baebae Kanawa, wife of the late Barekiau Tekitanga, and from the respondent, Ioane Barekiau. We adjourned part heard, having granted on terms Mr O'Sullivan's second application to have a DNA test taken: the purpose of the test, to establish conclusively whether or not Barekiau was the biological father of Ioane. The test has failed.

The hearing continued last Wednesday, 5th November.

Sadly our brother Tekaie Tenanora, who sat with us on the hearing in June, has since died. Neither counsel, on my enquiry, has any objection to the appeal being decided by the surviving two of us.

The first DNA test having failed, Mr O'Sullivan applied to have a second test taken. Ms Taoaba opposed the application. If Ms Taoaba had not consented to the first test it is doubtful whether the Court would have granted even that application. The case cannot be allowed to go on and on: besides the test may fail again. We refused Mr O'Sullivan's application for a second DNA test.

Barekiau Tekitanga died on 15^th December 1992. In 1993 (case 193/93) Nei Baebae Kanawa, mother of the appellants, swore that Ioane Barekiau was the son of her late husband but by another woman.

Ioane has always claimed to be Barekiau's son. His birth was registered late, Ioane himself being the informant. On the birth certificate the date and place are given as 21^st October 1969 at Eita, Tabiteuea North: Barekiau is named as father.

We received a letter from the Commissioner of Police that Barekiau Tekitanga was a policeman from 1^st October 1962 to 20^th November 1977: he worked on Tabnorth from 12^th August 1966 until September 1968. It will be noticed that by the likely time of Ioane's conception Barekiau was no longer stationed on Tabnorth. There is no reason why he should not have gone back to Tabnorth to visit Nei Raeua who is shewn on the birth certificate as the respondent's mother, a lady whom he had known earlier during his time on Tabnorth: alternatively why Nei Raeua should not have been with Barekiau wherever he may have been at the time of conception.

Ioane spent some time living with Barekiau and his wife and family (a son, who died and the four appellants). When Barekiau wrote to tell Ioane of the son's death, Ioane was working on a Korean fishing vessel. Overseas Ioane made a monthly allotment for 18 months to Barekiau of US$150. Nei Baebae said that her husband complained about getting the allotment but used the money nevertheless. Nei Baebae asserted that Barekiau told her Ioane should be repaid after his death from his KPF payment. That is why, Nei Baebae said, she swore to the Court in 1993 that Ioane was her husband's son by another woman: so that he could be paid back the money he had remitted to Barekiau. This is from my note of her evidence before us:-

The respondent used to come to the house. Not sure of his relationship with husband. My husband used to ask me to tell him to leave. Respondent used to send my husband money - going overseas but wanted to remit money. Husband said "Don't". In 1993 I told Court - I deceived the Court at that time: I said he was an illegitimate son of my husband. I felt pity for this when he came and asked for consideration amongst my children. Shameful not to give a person what they ask: told him up to him to prove he was Barekiau's son. I told Court he was an illegitimate child.

The present appellants appealed against the 1993 decision accepting Ioane as Barekiau's son. The appeal was dismissed in 1996:-

This appeal is based on the sole ground that there was insufficient proof of the paternity of the deceased Barekiau Tekitanga of the respondent Ioane Barekiau such as would entitle the respondent to the share in the deceased's estate awarded him by the court below. There should have been, says the appellant, an enquiry into this matter.

There was in fact such an enquiry as the record shows. The court asked the mother of the appellants who was the wife of the deceased, whether she had made any agreement with the respondent, referring to him as "this child of yours". The respondent had opposed the distribution proposed by this witness.

To this enquiry she replied, "Well really his is (Barekiau's) child by another woman. However he is living with us at the moment".

With this evidence one is not surprised that the magistrates went no further. There was sufficient evidence for them to conclude that the respondent was the child of the deceased and award him a share in the estate.

The appeal is accordingly dismissed.

It is to be noted that apparently Nei Baebae did not come forward at the time of the hearing of the appeal in 1996 to assert she had misled the Court at the original hearing. Had she, one would expect the High Court to have said so.

Mr O'Sullivan seeks to upset the finding of paternity because Nei Baebae now says she lied in 1993 to the Court.

The problem is that both Barekiau and Raeua, the respondent's mother, are dead. Only they could give direct evidence of paternity.

Circumstantial evidence is quite strongly in favour of the respondent. Ioane had lived with Barekiau and his family for some time: he remitted monies to Barekiau when he was working abroad: he had himself registered as Barekiau's son on the birth certificate. All are indications that he regarded himself as being a son, of his discharging the obligations of a son and of being accepted by Barekiau as a son.

The burden of proof of fraud - for that is what is being alleged: that Baebae lied to the Court in 1993 - is on the party asserting it (Phipson on Evidence, 14th ed, para 4-28(g)). The burden is on the appellants. The standard of proof, as Mr O'Sullivan conceded, is that propounded in Briginshaw v Briginshow [1938] HCA 34; (60 CLR 336). The High Court was considering the standard of proof of adultery but the test is applicable in other circumstances as well:

The result is that the ordinary standard of proof in civil matters must be applied to the proof of adultery in divorce proceedings, subject only to the rule of prudence that any tribunal should act with much care and caution before finding that a serious allegation such as that of adultery is established (per Latham CJ @ 347).

The burden then is on the appellants and the standard is that in Briginshaw v Briginshaw, higher than on the balance of probabilities but not as high as beyond reasonable doubt. The appellants have failed to reach that standard. We could not be satisfied, on her evidence before us, that Nei Baebae lied to the Court in 1993. We think it likely that she told the truth then: she believed what her husband had said: that Ioane was his son by another woman. What has now caused her to say otherwise remains a matter of speculation. Whatever the reason may be we do not accept that she lied in 1993. Even if we did accept that she lied, Nei Baebae goes no further now than not to be sure of the relationship. Set against that uncertainty is the quite strong circumstantial evidence we have mentioned.

We have been invited solely on Nei Baebae's assertion to set aside the finding in Ioane's favour. It is an invitation too difficult to accept. The finding of paternity should stand.

The appeal is dismissed.

Dated the 21^st day of November 2003

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE

BETERO KAITANGARE
MAGISTRATE