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Faleofou v Esau [1990] TVHC 1; Case 01 of 1990 (27 August 1991)

IN THE HIGH COURT OF TUVALU
CIVIL DIVISION

CASE NO. 1/90

BETWEEN:

FETAU FALEOFOU
Appellant

AND:

SOPEPA ESAU
Respondent

Barber for the Appellant
Finikoso for the Respondent

DECISION OF DONNE C. J.

This is an appeal on point of law pursuant to section 26(1) of the Native Lands Ordinance 1978 against the decision of the Lands Appeal Panel which on the 24th March 1990 ruled that the lands and pits of the late Eleasalo be divided by giving to the Appellant a gift of nursing amounting to the two largest lands and the largest pulaka pits and to the Respondent family seven other lands and five pulaka pits. In the Lands Court below it has been ruled that all lands and pits should be given to the Appellant as adopted daughter of the deceased.

The question in issue is whether in law the appellant is entitled to receive all the lands and pits. For her it is submitted that as an adopted child she has the legal status of a natural child and as there were no lawful issue she should receive the whole of the deceased's estate. Three grounds are put forward to support this:

(i) Paragraph 7 of the Tuvalu Lands Code refers to the adoptive parents real issue. This implies that an adopted child is to be treated as issue but contrasted with real issue for the purposes of that paragraph.

(ii) It is unlikely that the legislators intended that an adopted child should have no rights on intestacy. As there is no specific reference to an adopted child in paragraph 9 of the Tuvalu Lands Code it seems logical that he or she should be treated as issue and rank equally with lawful children if any.

(iii) The Adoption of Children Ordinance 1985 deals with non-native adoptive and subsection 19(1)(a) provides:

"the adoptive child becomes a child of the adopters, and the adopters become the parents of the child, as if the child had been a lawful child of the adopters marriage"

Subsection 2(2) provides:

"the procedures supplement those in force for native adoptions without affecting rights set out in the Native Lands Ordinance ......"

It does not seem to be logical or fair that a child adopted under the Adoption of Children Ordinance should be granted a particular status with regard to its adoption parents which is not granted to a child who is the subject of a native adoption.

Now the adoption here is clearly a native or customary adoption and the Adoption of Children Ordinance 1985 cannot apply to it. Section 19 thereof upon which the Appellant's submission is partly based, applies to orders made under the Ordinance which expressly preserves the rights in relation to customary orders i.e. native adoptions section 2 and 4. The only order under the Ordinance that is regarded as a "native adoption" is that concerned with any conveyance of land consequent upon an adoption order made thereunder - section 21(1) and (2). A "native adoption" under the Native Lands Ordinance 1978 is "an adoption by one native by another in accordance with native customary law" - section 2. What constitutes an adoption is determined by custom.

The Native Lands Ordinance 1956 (section 28) declared a "Code of Laws" governing native land rights from the 1st July 1962 to be known as the "Tuvalu Lands Code" which applied to islands including Vaitupu. It codifies certain customary laws including some relating to native adoptions which in section 7 thereof are declared:

7. (i) A gift to an adopted child may only be given if the adoptive parent has registered the adoption before the lands court. An adoption of a child shall only be allowed by the lands 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 lands court may approve the adoption and it is immaterial if there are not enough lands left for his real issue or his family. Such an adoption may be annulled by the lands court if it is proved that the adopted child is not dutiful.

(ii) An adopted child will receive his inheritance from his real father and mother in the same way as his brothers and sisters.

(iii) Gifts to an adopted child will revert to the donor's family if the recipient dies issueless. But if the recipient has children the donor loses his reversionary right and it is immaterial if his issue are later issueless.

(iv) At Funafuti an owner may not distribute or give away his lands held kaitasi without the consent of the other members of the Kaitasi group.

(v) At Nui Gifts of Adoption wall revert to the donor or his issue upon the issueless death of the recipient or his issue irrespective of the number of generations after the gift. However the land shall revert to not more than 2 members of the donor's issue in order to prevent undue fragmentation.

By the 1978 Ordinance (which presented the Tuvalu Lands Order) there is established a Lands Court within each local government area (section 6) and in section 16 thereof it is provided that:

"The Court shall adjudicate on all cases brought before it concerning native adoptions and the conveyances of land which such adoption may entail".

Section 7 of the Tuvalu Lands Code sets out what matters may be adjudicated upon by the Lands Court in native adoptions. There is no power given to make native adoption orders and I am satisfied, for the reasons hereafter given, the Court has no power to do so. As the Land Ordinance 1978 says in section 2 (supra), a native adoption is made in accordance with native customary law. Customary law predates the Lands Court. If therefore that Court were to have that power or the powers to approve by order native adoption orders it could only be given those powers by express provision therefor in the written instrument which creates it, the Native Lands Ordinance 1978, in the same way as it has been given in section 7 of the Code power to annul an adoption as one of its powers of adjudication conferred on it by the Ordinance that annulment can be made upon an application brought by the real issue of the adoptive parents or his family, if he is "issueless", in the event of the establishment of certain grounds referred to in the section. It is significant to note that what is annulled is not "an adoption order". It is "the adoption" that is annulled. A native adoption is made according to custom; it is not made by an order emanating from either a Court or the executive. A native adoption may never be the subject of Court adjudication. It is only if it is disputed by the adoptive parents, issue or family or the adopted child is not dutiful as provided in the section that the Court adjudicates on it and that depends upon an application being made by an aggrieved person. It therefore follows that a native adoption properly made in accordance with custom, takes effect upon the making.

As to intestacy, the Code deals with that in section 9 thereof. On intestacy the section provides for settlement by the intestate owner's "next of kin", or, failing settlement, for distribution in accordance with specific provision set out therein. In the case of children, provision is made for distribution to them, but, they are clearly "the issue" of the deceased. There is no specified reference therein to adopted children. The appellant seeks assistance from section 19 of the Adoption of Children Ordinance 1985 which states the legal status of an adopted child, but, as stated above, the Ordinance does not apply to native adoptions and the section applies only to adoptions made under the Ordinance. It follows, therefore, that questions whether a native adoption is effected and what are the rights of a person adopted in accordance with native custom, are ones that can only be determined by reference to custom which is unwritten. This Court is not and cannot be an arbiter of custom. That is the function of the Lands Court and, on appeal, the Lands Appeal Panel. The matter here, I considered, are for determination in accordance with custom and it is in those Courts where the case must finally rest. For this Court to have jurisdiction there must be in issue a matter of law i.e. written or statute law.

Insofar as the ground of appeal directed to the interest of the President of the Lands Appeal Panel is concerned, if indeed, this could have been considered a proper matter for appeal, I am satisfied that nothing in the record suggests impropriety on his part in the adjudication of the appeal. It would perhaps have been wiser for him to declare his relationship as uncle of the respondent's wife, but, I would not be prepared on the argument submitted, to hold that this relationship in any way influenced the decision of the Panel of which he was a member.

I have therefore come to the conclusion, for the reasons stated, an appeal in this case should not lie and it is dismissed.

CHIEF JUSTICE

27th August 1991