Enari v Matata [2005] KICA 18; Land Appeal 02 of 2005 (8 August 2005)

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

Land Appeal 2 of 2005

BETWEEN:

TEIANNANG ENARI
Appellant

AND:

TAWANA MATATA
RIBUATE TEINMATI
Respondents

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for Appellant: Banuera Berina
Counsel for Respondents: Taoing Taoaba

Date of hearing: 4 August 2005
Date of judgment: 8 August 2005

JUDGMENT OF THE COURT

Introduction

1. This is an appeal from a decision of the High Court (LA 75/04) of 29 December 2004 refusing leave to appeal out of time from a decision of the Lands Court of Onotoa (Case No. 44/89) of 23 May 1989.
   

Background

2. In 1989 the Onotoa Court gave a decision determining that the appellant had no ownership rights in certain land described as “land Tebuonnon”. The appellant was present during those proceedings.
   
3. The appellant had apparently occupied the land since 1954. Notwithstanding the 1989 decision he continued to work the land down to the present. On several occasions the owners declined his requests for boundary determinations but did not interfere with his continued use of the land.
   
4. In approximately 2002 (the exact date is not given) the appellant took some steps (not specified) to assert his rights. Then in 2004 he applied to the High Court for leave to appeal out of time against the 1989 decision of the Onotoa Court.
   
5. The application for leave to appeal out of time came before the High Court sitting in its land jurisdiction on 29 December 2004. The High Court held that after the delay of 15 years it was too late to challenge the 1989 decision, commenting that “certainty of title requires us to refuse the application”.
   

The appeal

6. In this court Mr Berina submitted that the High Court had not properly considered (a) the attempts by the appellant to exercise his right to the land over the years and (b) the lack of prejudice to the respondents if leave to appeal were granted.
   
7. The primary difficulty faced by the appellant, however, is that the jurisdiction of this court is limited to an “appeal which involves a question of law only”: see s 10(1)(b) of the Court of Appeal Act. Mr Berina was unable to identify any question of law on this appeal. It is essentially an attempt to have this court substitute its discretion for that of the High Court. As such we have no power to intervene.
   
8. We should add that even if we had had the power to intervene, the appellant would have faced formidable difficulties given his presence in Court at the time of the original decision and his delay of 15 years before taking action.
   

Conclusion

9. The appeal is dismissed with costs to the respondent to be agreed or taxed.
   

Hardie Boys JA
Tompkins JA
Fisher JA