Tebeia v Tearoua [2007] KICA 6; Land Appeal 06 of 2007 (30 July 2007)

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

Land Appeal No 6 of 2007

BETWEEN

RINEIETA TEBEIA MT MM
Appellants

AND

ATANIMATANG TEAROUA
Respondents

Before: Hardie Boys JA
Tompkins JA
Paterson JA

Counsel: Karotu Tiba for appellant
Banuera Berina for respondent

Date of Hearing: 27 July 2007
Date of Judgment: 30 July 2007

JUDGMENT OF THE COURT

INTRODUCTION

[1]. This is an appeal against a decision of the High Court given on 20 April 2007 refusing to extend the time within which to appeal to that Court.

BACKGROUND

[2]. In 1998 Atanimatang Tearoua (the respondent) applied to the Single Magistrate to rectify the ownership of the land Teabannaine 810e. Judgment was given by the Single Magistrate on 17 December 2001 in favour of the respondent.

[3]. The application to the High Court for leave to appeal to it out of time was filed on 31 January 2007, over five years after the Single Magistrate gave her decision.

[4]. In a judgment given on 20 April 2007 the High Court refused to give leave. The relevant portion of the judgment reads:

In the meantime, in August 2001, the applicants’ lawyer Mr Teiwaki died. Rineieta has deposed that a week after Mr Teiwaki’s death he spoke to the Single Magistrate who said she would have him informed when the case would proceed. The applicants did nothing more until last year when they saw the Abaiang maneaba being built upon the land in dispute. Even given that the proceedings had been dragging on since 1998, and their lawyer died in August 2001 we have come to the conclusion that they should have known to take some action well before they have. Accordingly application to extend time within which to appeal refused.

THE APPELLANT’S POSITION

[5]. In affidavits sworn and filed in support of the application Rineieta Tebeia averred in summary:

(a). The case before the Single Magistrate commenced on 15 October 1998 when the plaintiff (the respondent in this proceeding) gave evidence. The case was then adjourned to 10 November 1998. To her knowledge it did not resume.

(b). The appellants’ lawyer died in August 2001.

(c). A week after their lawyer died, the appellants asked the Single Magistrate what had happened to the case. They were advised to wait as they would be advised by summons.

(d). The appellants took no further action until late 2006 when the maneaba for Abaiang Island was built on the land. They then discovered that the judgment had been given against them on 17 December 2001.

DISCUSSION

[6]. This is an appeal against a discretion. The appellant has the burden of showing that the court acted on a wrong principle or failed to take into account some relevant matter or took account of some irrelevant matter or was plainly wrong.

[7]. The High Court in finding that the appellants should have known to take some action well before they did, was in effect saying that there had been unreasonable or inexcusable delay. It was entitled to take this view. It noted the death of the appellants’ lawyer. In this Court’s view it did not take account of irrelevant matters nor did it get it plainly wrong.

[8]. A matter not mentioned by the High Court, although it probably had it implicitly in mind, is the interests of the community which has built the maneaba on the land. It did so approximately five years after the Single Magistrate gave her decision. The community’s interest and the possible adverse effects on it, if leave were to be given, is in this case a matter which is relevant and tells against granting leave. This Court sees no grounds for allowing the appeal.

RESULT

[9]. The appeal is dismissed.

COSTS

[10]. The respondent is entitled to costs. If the parties are unable to agree they are to be fixed by the registrar.

Hardie Boys JA
Tompkins JA
Paterson JA