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Kaitu v Obeta [2003] KIHC 24; Civil Case 03 of 2002 (30 January 2003)

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

HIGH COURT CIVIL CASE 3 OF 2002

BETWEEN:

NEI KAMAKI N KAITU
APPLICANT

AND:

BAKABO OBETA, TEERE BEKABO,
ETITA REREUA & BAURO TEKAITI
RESPONDENTS

FOR THE APPLICANT: MS TAOING TAOABA
FOR THE 1st & 2nd RESPONDENTS: MR AOMORO AMTEN
FOR THE 3RD RESPONDENT: MS BATITEA TEKANITO
FOR THE 4TH RESPONDENT: MS EMMA HIBLING

DATE OF HEARING: 27 JANUARY 2003

JUDGMENT

Tikatoka Iabeta died on 17 February 1997 as the result of an accident at work. He was employed by the Public Utilities Board. The Board has paid into Court $25,000 compensation.

The question is how it should be distributed.

Tikatoka was 29 when he died. In 1995 he settled with Nei Etita Rereua. They had two children, Taumaroiti born 21 February 1994 and Mikari born 7 January 1997. [I take that from the affidavits of the applicant Nei Kamakin and of Nei Etita: the dates are puzzling as the first child was born before the couple settled. No point about it has arisen.]

After Tikatoka's death, Taumaroiti went to live with Nei Kamakin who has continued to have the care of him. Mikari is being cared for by the first and second respondents, Bakabo Obeta and Nei Teere Bekabo. Nei Etita has settled with another man.

The two infant children should have the benefit of most of the compensation. The first question is how much, if anything, Nei Etita should receive. The second, more perplexing question is how much, if anything, the fourth respondent Bauro Tekaiti should receive.

Bauro, a man of 60, is the lawful stepfather of the deceased. He married the deceased's widowed mother when the deceased was about two. He said he brought the boy up: Tikatoka had always lived with him and continued to do so after his wife, Tikatoka's mother, died and Tikatoka had settled with Nei Etita. Tikatoka had been employed by the PUB for about 12 months. He had promised to pay Bauro $30 out of his fortnightly pay: he had made four or five payments.

Bauro said he paid for the funeral. It cost $1,500. By the end of cross-examination he admitted that the funeral was held at Atumeita's house. Atumeita's wife is Nei Tetoariki from whom he borrowed $1,000 for the funeral: he has not paid it back. Bauro prevaricated on this point: it was a part of his evidence which caused me to doubt his reliability.

The applicant is Nei Kamakin Kaitu. Unfortunately her lawyer, Ms Taoaba, did not come to court. I went on with the hearing in Ms Taoaba's absence.

Nei Kamakin confirmed the accuracy of her affidavit. Paragraph 4:

At the time of Tikatoka's death he was earning $196 per fortnight and with overtime his earnings were over $321. I do not know the precise amount. All of his earnings were spent on Etita and their children.

Nei Kamakin claimed that her father Kaitu Bauro had taken Tikatoka as his son and brought him up. She had first denied that Tikatoka gave Bauro Tekaiti any money but then she didn't know how much Tikatoka gave Bauro. Bauro was lying to say that Tikatoka lived with him. "Tikatoka stayed with my father until he was a grown man".

Nei Etita made an affidavit in similar terms, confirming the deceased's earnings and saying that all his earnings were spent on herself and the two children. She too confirmed the accuracy of the information in her affidavit.

Nei Etita said that she and Tikatoka and the children may have been living in Bauro's house but he was not there: no one else was in the house with them. Bauro came to see them only when he was drunk or needed something. She did not know where he stayed. She denied that Tikatoka ever gave Bauro any money. Tikatoka gave her all his pay.

Mr Amten did not call either of his respondent clients but he did call Nei Tetoariki abeta. Nei Tetoariki said she and her husband paid the funeral expenses: she did not know if Bauro paid anything towards the funeral. They have not been reimbursed.

She had known Tikatoka for a long time. Bauro's house was next to hers and her husband's. Tikatoka was staying at Bauro's: he and Etita and their children were living at Bauro's house. Bauro moved about from one of his children to another (he had another son and a daughter). She did not know whether Bauro brought up Tikatoka as his own son nor whether Tikatoka ever gave money to Bauro.

After hearing the addresses and adjourning to consider the application I realized I should allow Ms Taoaba the opportunity to call other evidence to confirm the evidence of her client Nei Kamakin. I had been impatient going on with the hearing in Ms Taoaba's absence.

Ms Taoaba called Tebou Kaitu. It was difficult to follow him: family relationships and the moves of people between Tarawa, Maiana and Kiritimati and on Tarawa were complicated. My overall impression of the evidence after hearing Tebou is that Tikatoka lived between his grandparents Kaitu Bauro and Nei Bukaniman and his mother Nei Rereia and her husband Bauro Tekaiti. He was brought in two families. Bauro Tekaiti does not, I think, as a result of Tebou's evidence, have even as strong a claim as I had earlier thought.

Ms Hibling in her address submitted that the ladies Nei Kamakin and Nei Etita had put their heads together to tell a story which would shew that Bauro was not at all dependent on Tikatoka. That may be so. Bauro's evidence is not reliable either. I doubt even on the balance of probabilities that Tikatoka promised Bauro a regular $30 per fortnight. I think it probable, though, that Tikatoka did give Bauro some money from time to time but not as much as $30 per fortnight.

The evidence is imprecise and unreliable. The only witness whose evidence I can accept with confidence is Nei Tetoariki. All I can do is to assess the probabilities. I find that Bauro had a part in bringing up the deceased: the responsibility had been shared between Bauro and Tikatoka's mother Nei Raera on the one hand and his grandparents Kaitu Bauro and Nei Bukaniman on the other.

How then should the $25,000 be apportioned? The children must share the bulk: Nei Etita and Bauro should get something. It is usual where an infant is concerned for the monies to be paid to the Director of lands as trustee to hold and invest for the benefit of the infant and for the Director to make advances from time to time as on enquiry the Director considers to be in the interests of the infant. The orders I make will be to that effect. Taumaroiti is nearly three years older than Mikari: his period of dependency is likely to be shorter than hers. This should be reflected to an extent - it cannot be precise - in the distribution.

The distribution will be:-

Taumaroiti $11,750.00

Mikari $12,250.00

Nei Etita $500.00

Bauro $500.00

I shall hear counsel as to the form of my order.

Dated the 30 day of January 2003

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE