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Bio v Iaro [1998] KIHC 16; HCLA 057A.97 (27 February 1998)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCLA 57A/97

BETWEEN:

TONGANIBEIA BOSCO BIO
MAUERERE KIAMAN
AND OTHERS
Appellants

AND:

TOROMON IARO
Respondent

Mr B Berina for the Appellants
Mr T Teiwaki for the Respondent

Date of Hearing: 27 February 1998

JUDGMENT

This is an appeal against the decision of the South Tarawa Magistrates' Court (Lands) delivered on 19 July 1997 in case No. A351/97.

The appellants are the issue of Nei Katei and are the owners of several parcels of land on South Tarawa inherited from her. The respondent is the adopted son of Nei Akineti, a daughter of Nei Katei. Nei Akineti had no other issue. The respondent, who was not related to Nei Akineti, was adopted by her on Makin island, apparently out of gratitude for his care of her.

The Single Magistrate decided that since section 9(iii) of the Lands Code provides that an adopted child inherits from his adoptive parent just as though he were a real child of that person, the respondent was to receive a share of all of the appellants' lands on Tarawa.

That decision is now appealed on the following grounds:

(1) The learned Single Magistrate erred in law in applying the adoption approved by the Lands Court of Makin in that the adoption in Makin does not and cannot bind the Lands Court of South Tarawa.

(2) The learned Single Magistrate erred in law in applying the adoption approved by the Lands Court of Makin in that the adoption is a nullity in that the court therein failed to decide from whom the child is to inherit.

We do not think that the first ground has any substance. For the purposes of inheritance of property, an adopted child ranks as a legitimate child of the adoptive parent. The right of a child to inherit from a deceased parent does not depend on where the property is situated. We therefore reject the first ground of appeal.

In regard to the second ground of appeal, the appellants' argument is based on section 9(iii) of the Lands Code. That subsection reads as follows:

"9(iii) An adopted child will inherit from his adoptive parent just as though he were a real child of that person. At the time that the adoption is registered before the court it must be decided if the adopted child is to receive from the adoptive parents' father's and mother's family lands or only from the adoptive parents' father's lands or only from his mother's lands".

The subsection makes it clear that in the case of an adopted child, there is no automatic right to a share of the whole of the estate of an adoptive parent, but only to such part as is decided when the adoption is registered before the court. The effect of the subsection can of course be altered by a will, but in the present case the adoptive parent did not leave a will.

It appears from the minutes of case No. 91/58, in which the adoption was approved by the Makin Magistrates' Court, that there was no decision that the appellant was to inherit any land from Nei Akineti, whether it be from the family lands of both her parents, or only from her father's lands, or only from her mother's lands, or otherwise. This may have been an oversight. But it may also have been intentional; the minutes of case A351/97 show that the appellant was probably an adult at the time of the adoption and, in fact, had just married, or was about to marry, the granddaughter of the presiding magistrate who approved the adoption.

The subsection makes it quite clear that the time for deciding which land the adopted child is to receive from the adoptive parent is when the adoption is registered before the court. In the appellants' case, the court decided nothing more than that he was to be registered as Nei Akineti's son.

In our opinion, the Single Magistrate erred in giving the appellant a share of Nei Akineti's mother's family lands when such issue had not been decided at the time stipulated by section 9(iii). For whatever reason the requirements of the subsection were not followed, the effect was that the adoption did not entail the inheritance of any land from the adoptive parent.

Although the point is now academic, we might add that we do not necessarily agree with the appellants' contention that the adoption was a nullity. The registration of the adoption has never been appealed. It would therefore still be in order for the appellant to describe himself as the son of Nei Akineti but, as has been seen, he is a son in name only.

The appeal is allowed and the decision of the Single Magistrate is set aside.

THE HON R B LUSSICK
Chief Justice

TEKAIE TENANORA
Magistrate

BETERO KAITANGARE
Magistrate