Takinoa v Republic [2006] KICA 2; Civil Appeal 02 of 2005 (26 July 2006)

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

Civil Appeal 2 of 2005

BETWEEN:

NEI TEITI TAKINOA
KABOTAU NAKAU
TEMATANG TATAUA
MARETA KAIRIRIETA
NEI MARIA KAIRIRIETA
MIKAERE KAIRIRIETA
NEI TEERA KAUTU
ANTONIO KAIRIRIETA
Appellants

AND

THE REPUBLIC
Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for the Appellant: Fleur Hamilton
Counsel for the Republic: David Lambourne

Date of Hearing: 21 July 2006
Date of Judgment: 26 July 2006

JUDGMENT OF THE COURT

[1] When this case was called at the commencement of this session, Ms Hamilton for the Appellants sought an adjournment to the next sitting of the Court, which is likely to be in a year’s time.

[2] The appeal is against a judgment of the Chief Justice delivered on 17 August 2005. The appeal was filed in time on 22 September, 2005.

[3] Rule 17 (1) (b) and (c) of the Court of Appeal Rules provide for an appellant to deposit with the Registrar the assessed preparation costs, and to apply to the Judge to fix security and then to pay the sum fixed within the time stipulated by the Judge. The Judge may dispense with the giving of security. If these requirements are not met, rule 17(2) requires this Court to dismiss the appeal unless it directs otherwise.

[4] The Chief Justice fixed security on 23 January 2006, to be paid by 7 July, but it has not been paid; nor have the preparation costs. No application has been made for a dispensation.

[5] An affidavit filed in support of the application makes it clear that the reason for the adjournment is to give the appellants time to find the money needed to comply with the requirements of the rule.

[6] An appellant’s inability to provide the necessary money does not necessarily prevent an appeal being brought. There is always the power of dispensation. But where that avenue is not pursued, a respondent cannot be expected to wait a year, on top of time that has already gone by, for the dispute to reach finality.

[7] In the present case, the Republic as lessee pursuant to a 99 year lease running from 1 July, 1970, sought and obtained an order for possession of land at Betio. The lessor under this lease had the previous year taken title by transfer from a forebear of the appellants. Their defence to the claim for possession was that the lease was invalid.

[8] Ms Hamilton informed us that the appellants do not challenge the order for possession; in fact they have already left the land. They now wish to take a different course from that taken by their former counsel in the High Court. Instead of challenging the validity of the lease they now wish to challenge the validity of the transfer to the lessor back in 1969, and to that end to have the matter returned to the Magistrates’ Court.

[9] There must be an end to litigation. The appellants have already made one unsuccessful attempt to defeat the Republic’s interest in the land, and it is unrealistic for them to expect to be able to make another attempt and to endeavour to reopen the events of 37 years ago. They have not complied with the requirements of Rule 17, and their affidavit puts in doubt their ability to satisfy the Rule, even after a year. In all these circumstances, the application for an adjournment is refused, and the appeal is dismissed.

Hardie Boys JA
Tompkins JA
Fisher JA