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Bwebweniti v Teiwaki [1999] KIHC 7; HCLA 110.97 (5 February 1999)

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

HCLA 110/97

BETWEEN:

KUREITI BWEBWENITI
AND OTHERS
Appellants

AND:

TATOA TEIWAKI
Respondent

Appellants in person and rep by Binataake Tawaia
Mr B Berina for Respondent

Date of Hearing: 27 January 1999

JUDGMENT

The appellants' application for leave to appeal out of time is not opposed by the respondent and such leave is accordingly granted.

The appellants are the issue of Uouo Karakaua, deceased. The respondent Tatoa Teiwaki brought an application in the magistrates' court in case No. A318/97 for the distribution of certain lands owned by the deceased. The respondent brought the claim on behalf of Kamauti Teiwaki, whom he regards as his grandchild. According to the respondent, Kamauti is the son of his nephew Teiwaki who was married to Tauateara. Teiwaki was lost at sea before Kamauti was born. Teiwaki was the grandson of Uouo Karakaua, so that Kamauti is Uouo's great grandson.

The Single Magistrate in case No. A318/97 ordered that certain parcels of the land of the deceased Uouo Karakaua be distributed to various persons. The part of that decision of which the appellants complain was a distribution to Kamauti Teiwaki of part of the land Tetabo which had already been registered under his name, together with the remainder of 0.216 metres.

The appellants, in their Amended Notice of Appeal, rely on 8 grounds.

The first ground is that "the learned Magistrate erred in law in distributing lands co-owned by both Uouo Karakaua and Terokati Karakaua without summoning issues of Terokati Karakaua to attend". In answer to that ground, counsel for the respondent submits that although some of the lands in the distribution were co-owned by Terokati, the case before the court concerned only the distribution of lands owned by Uouo Karakaua, and that it was not wrong for the court to distribute those lands in the absence of Terokati because his interest was not in issue. The owners mentioned in the decision would co-own such lands with Terokati. Only Uouo's name would be deleted from the register and the new names substituted as co-owners. We agree with that submission. This ground of appeal is rejected.

Grounds 2 to 8 are centred on the appellants' contentions that the parents of Kamauti were not married so that Kamauti was illegitimate and has no right of inheritance, and that Kamauti was not the son of Teiwaki.

Notwithstanding the appellants' contentions, the issue before the Single Magistrate was a simple one: was Kamauti the son of Teiwaki? If so, then he was entitled to share in the estate of the deceased Uouo Karakaua, who was his great grandfather. If not, then his claim of course must fail.

A perusal of the minutes of the proceedings in the lower court shows that the evidence in favour of Kamauti being the son of Teiwaki was so strong as to be overwhelming. The Single Magistrate was therefore correct in deciding that such fact had been proved; indeed he could hardly have decided otherwise.

Once the Single Magistrate had made that decision it was not really necessary to establish that the parents were married. Under Kiribati custom, Kamauti was entitled to share in his great frandfather's estate regardless. Nevertheless the Single Magistrate, in that part of his judgment dealing with Kamauti's family tree, did find that Teiwaki married Tauateara and that Kamauti descended from them. Again, there was a great deal of evidence to support that finding which, from the evidence, obviously refers to a marriage according to Kiribati custom.

We therefore cannot find anything wrong with the Single Magistrate's decision. In fact, the land distributed to Kamauti, or most of it, had already been registered in his name by his great frandfather Uouo during his lifetime by virtue of a case that is 10 years old and has never been appealed.

We do not intend to go into grounds of appeal Nos 2 to 8 in detail. Having studied them and heard submissions made on behalf of the appellants in regard to them, we have come to the conclusion that none of the said grounds has any merit and that the appeal is manifestly hopeless.

The appeal is dismissed. The appellants are advised that they have the right to appeal to the Court of Appeal within 6 weeks.

THE HON R B LUSSICK
Chief Justice
(05/02/99)

BITIARE EKERA
Magistrate
(05/02/99)

TOOKI KAAKE
Magistrate
(05/02/99)