Palala v Uria [2009] KICA 12; Civil Appeal 07 of 2009 (26 August 2009)

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

Civil Appeal 7 of 2009

BETWEEN:

ABORINA PALALA
Appellant

AND:

MIREKA URIA
First Respondent

AND:

NEINTAAKE TEBONGATA
Second Respondent

AND:

MAKUE BAURO
Third Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for appellant: Mantaia Kaongotao
Counsel for first respondent: Taoing Taoaba
Counsel for third respondent: Banuera Berina

Date of Hearing: 25 August 2009
Date of Judgment: 26 August 2009

JUDGMENT OF THE COURT

Introduction

[1] This is an appeal from a decision of the Chief Justice of 19 February 2009 declining to extend time within which to apply for certiorari to quash the Magistrates’ Court decision of 6 September 1999 in CN70/98. The second respondent is not affected by the appeal and entered no appearance.

Background

[2] At issue are the boundaries to land within the plots Temaruantina and Marenaua shown in the Magistrates’ sketch annexed to this judgment as "Annexure A". It is not disputed that the first respondent is the owner of Marenaua 708 e to the left of the sketch, the second respondent the owner of Temaruantina 707u to the right, and the third respondent the owner of Temaruantina 707e/2 in the bottom middle. There is an argument as to whether at the material time the appellant or Maria Tabanou was the owner of the area shown as Temauantina 707e/1 in the top middle of the sketch.

[3] By a decision of 6 September 1999 in CN70/98 the Magistrates’ Court determined that the boundaries between those properties are as shown in Annexure A. All relevant persons were present at the time of that decision other than the appellant. Those present included Maria Tabanou, whom the respondents say was the owner of Temauantina 707e/1 at the time.

[4] The appellant had built a house on Maria Tabanou’s land in Temaruantina 707e/1. If one accepted the boundaries as determined in CN70/98, the house she built encroached upon both the first respondent’s land in Marenaua 708e and the third respondent’s land in Temaruantina 707e/2.

[5] Having obtained the boundary determination, the first respondent brought proceedings CN 53/06 to evict the appellant from his land. The records show that in the course of these proceedings Maria Tabanou said that she was acting for the appellant, and for another person called Mary, because they were leasing the land in 707e/2 from her. The appellant herself gave evidence. She too said at the time "the land belongs to Maria".

[6] The Magistrates’ Court in CN 53/06 proposed that instead of eviction a lease should be arranged between the first respondent and the appellant. But this was reversed on appeal (HCLA 17/2007). In its judgment of 3 August 2007 the High Court held that the first respondent was entitled to the land; she was not obliged to lease any of it to the appellant.

[7] That obstacle having been removed, the first respondent renewed her application to evict the appellant (CN 53/06). The appellant now needed some other means of avoiding eviction.

[8] As Maria Tabanou was recorded as the owner of the land on which the appellant resided, the appellant persuaded her to bring proceedings for certiorari in the High Court (HC 120/07) on 15 August 2007. In the proceedings Maria claimed that she had not been present at the boundary determination in CN 70/98. Not surprisingly, the High Court rejected that allegation and dismissed the certiorari application.

[9] For the third time the first respondent applied to the Magistrates’ Court to evict the appellant and others living on the first respondent’s land (CN 627/08).

[10] This time the appellant responded by bringing her own proceedings in the High Court (HCCC 129/08). She sought an extension of time within which to seek certiorari to quash the boundary determination in CN70/98. In support she suggested, for the first time, that she was the owner of the relevant land in Temaruantina 707 e/1, not Maria Tabanou. The ground for quashing the decision in CN70/98 was said to be that as owner, she should have been notified of the boundary determination proceedings so that she could participate.

[11] As to her claim to have been the owner at the time, the appellant now claimed that in 1983 she could remember her husband and the landowner attending a court proceeding for "our registration on the land". To explain the lack of any current record to that effect she said:

"the people at the Archives informed my children that there were no records found for our registration ... Some said that there was a fire in the 1980s which resulted in the destruction of some court records and may be our court minutes were among the burnt or missing records."

[12] In his judgment the Chief Justice declined the application for extension of time. The Court had already refused an application for certiorari to quash the same decision in HC 120/07. Ms Taoaba had told him from the bar table that she was the Court Clerk at Bairiki where the records should have been and there was no fire. He did not accept that the applicant was registered as owner at the relevant time.

[13] The Chief Justice recorded that since the 2008 decision in HC 120/07 Maria Tabanou had transferred the ownership to the appellant. He attached no significance to that, regarding it as merely an arrangement between the two to give the appellant standing. Its purpose was to allow the appellant to make her own application for the certiorari that had already been denied to Maria Tabanou.

[14] In the result the Chief Justice refused the application on two grounds, one that the Court had already refused certiorari to quash the same decision and the other that it was too late to challenge a decision made ten years ago.

[15] From that decision the appellant has appealed.

The Appeal

[16] In this Court the appellant advanced a number of grounds of appeal of which we mention three.

[17] The first was that as the appellant had an interest in the land she should have been made a party to the boundary determination in CN70/98. We can only agree with the Chief Justice on this point. The explanation that the record of the appellant’s title may have vanished in a fire is nothing but speculation based on the vaguest of remarks conveyed to the Court third hand. If the appellant had been serious in that assertion it would have been simple to obtain more direct evidence from one of the officials concerned. More importantly, the notion that the appellant was the owner in 1998 is directly contradicted by her own statements and actions, and those of Maria Tabanou, ever since.

[18] The second ground was that the Chief Justice had admitted evidence from the Bar table. This was a reference to the statement from Mrs Taoaba, counsel for the first respondent, that there had been no relevant fire. But for reasons we have just mentioned, the Chief Justice scarcely needed to rely upon Mrs Taoaba for that conclusion. The appellant’s suggestion in that regard bordered on the absurd.

[19] The third ground of appeal was that the Chief Justice had failed to consider the appellant’s evidence that she had purchased the land in 1983 but lost her registration. This is the same point. We reject it.

[20] The other grounds of appeal were essentially variations of the above matters.

Result

[21] The appeal is dismissed with costs to the first and third respondents to be agreed or taxed.

Hardie Boys JA
Tompkins JA
Fisher JA