Burantiti v Nabuti [2009] KICA 11; Civil Appeal 06 of 2009 (26 August 2009)

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

Civil Appeal No 6 of 2009

BETWEEN:

MWERETAKA BURANTITI mtmm
Appellants

AND:

TAKE NABUTI mtmm
Respondents

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Michael Takabwebwe for appellants
Banuera Berina for respondents

Date of Hearing: 21 August 2009
Date of Judgment: 26 August 2009

JUDGMENT OF THE COURT

[1] The appellants applied to extend the time to apply for an order of certiorari to quash a decision in CN 37/99 that had been delivered on 23 September 2005. In his decision delivered on 2 December 2008 and in the exercise of his discretion, the Chief Justice dismissed the application on the ground that the delay of three years in bringing the application was excessive. From that decision the appellants have appealed.

[2] At the commencement of the hearing of the appeal, the appellant sought leave to call further evidence in the form of an affidavit by Ibeata Aukitino. We declined that application for these reasons:

(a) The deponent does not state on what basis he claims to be able to make an affidavit on behalf of the appellant. Counsel for the appellant accepted that the affidavit does not show whether and if so how he is related to the appellant.

(b) The affidavit contains criticism of a lawyer, claiming that the lawyer was responsible for the delay in commencing the proceedings. There is no waiver of professional legal privilege to enable the lawyer to give evidence in reply. Nor does the evidence establish that the lawyer was acting for the appellant at the relevant time.

(c) In these circumstances the affidavit is of no assistance in resolving the issues in this appeal.

The sequence of events

[3] Case No 37/99 was a boundary determination of land plots Teabannati 763m and Korobu 764a. It commenced in 1999, but it appears that it was not completed at that time.

[4] On 29 December 2004, there came before the High Court two Land Court Appeals no 44 of 2003 and no 69 of 2003. We do not have the notices of appeal, but it appears from the judgment delivered that day that they depended on whether a complete boundary determination had been made. Both cases were referred back to the Single Magistrate for rehearing.

[5] In his decision of 23 September 2005 the Single Magistrate recorded that the respondent was present but Itinnang Buranti, the brother of the appellants was not. She said:

". . . it is hereby confirmed by the court that the boundary which was agreed by both sides which is the stone next to the road which used to be under the breadfruit tree to be surveyed." (emphasis added)

[6] On 26 February 2007 case no 37/99 came before the Single Magistrate again. He made an order that surveyors carry out the survey of the boundary between the lots referred to in § [3]. That the Single Magistrate also ordered that the surveyors were to be accompanied by police officers when doing the survey is indicative of a possible breach of the peace occurring. In the absence of evidence to the contrary, we assume the survey was done.

[7] On 24 November 2008 the appellants filed a notice of motion seeking an order extending the time for making an application for an order for certiorari. The notice of motion set out the grounds on which certiorari would be sought if leave were granted. Summarised they are:

(i) Throughout the period from 1999 until the decision was on 23 September 2005, the appellants, who were co-owners of Tabannanti 763m with a sibling, were not summoned nor were they present at any hearing before the Single Magistrate.

(ii) The Single Magistrate did not inspect the length of the boundary and the stone referred to was difficult to find.

(iii) The Single Magistrate determined the boundary from the main road and failed to inspect the land from the lagoon to the ocean.

(iv) The parties who gave evidence at the hearing did not take the witness oath.

[8] An affidavit by the appellant was filed in support of the motion. The effect of this affidavit is that he and his eight siblings are the joint owners of Teabannanti, his brother Itinnang Buranti being the eldest. He says that only the latter was invited to attend before the Single Magistrate. He says that he and his other siblings only knew of the determination ". . . sometime later when it was drawn to our attention." He does not say when that was. He also claims that he and his other siblings did not authorise Itinnang to carry out the determination on their behalf.

[9] An affidavit by the brother Itinnang Buranti was filed in support of the motion. He deposes in some detail to the events that occurred when the Single Magistrate was considering the determination of the boundary in 1999. It is apparent from his affidavit that he was present when the application to determine the boundary was being considered by the Single Magistrate. He accepted that when the respondent pointed out where the boundary should go, he agreed to what the respondent proposed.

[10] But he was very critical of the Single Magistrate for not properly inspecting the property and claimed that some time after the boundary determination (he does not say when) he realised that the respondent had lied about where the boundary should go. He does not say why he took no action, nor the extent to which (if at all) he informed his siblings of what had occurred.

The High Court decision

[11] When the application came before the High Court, it was submitted on behalf of the appellants that the delay in applying for leave to bring the application was due to the default of the lawyer then acting for the appellants. It appears that the Chief Justice was prepared to accept that this may have been so. He said:

"In exercising the discretion to extend time or not the Court must bear in mind not only the interests of the applicants but also those of the respondents. Apart from the incompetence of the lawyers and their failure to explain to their clients the rights they had, no reason has been advanced to justify the delay of over three years in making this application. That being so and balancing the interests of both sides time will not be extended. Consequently the application for an order of certiorari is dismissed."

[12] It apparent from the record that the allegations about the lawyer we have referred to in § [2] were made to the Chief Justice from the bar as there was no evidence before him to support them. It is not surprising that he put them to one side.

Conclusion

[13] This appeal cannot succeed for these reasons.

[14] In determining whether to grant leave, the Chief Justice was exercising a discretion. In Kaburoro v Abamakoro Trading Ltd Civ App No. 5 of 2008 we said at § [16]:

"It is well settled that an appellate court will not interfere with the exercise of a discretion unless it can be established that the court below took into account an irrelevant matter, failed to take into account a relevant matter, erred in law or applied a wrong principle: Re F a minor [1976] 1 All ER 417, Bridge LJ at 439."

[15] Of the grounds advanced in support of the application, the only one of any substance was the first. It was submitted on behalf of the appellant that the Chief Justice failed to take into account a relevant matter, namely the appellants were not present when the boundary determination was made. But it is clear that one of the owners was present. He was obviously unsatisfied with the procedure that had been followed, but despite this dissatisfaction, he took no action to apply for a review of the decision or otherwise to challenge it. There is no satisfactory explanation for the delay of three years.

[16] There no evidence to show that the boundary as surveyed was incorrect and if so, to what extent. On the contrary, the evidence makes it clear that the boundary was determined by agreement between the brother of the appellants and the respondent.

[17] There are no grounds for interfering with the manner in which the Chief Justice exercised his discretion. He was entitled to have regard to the delay of three years in balancing the interests of the parties and to conclude that the application for leave should be dismissed.

Result

[18] The appeal is dismissed. The respondent is entitled to costs to be agreed or taxed.

Hardie Boys JA
Tompkins JA
Fisher JA