Tetabo v Katarake [2009] KICA 14; Civil Appeal 11 of 2009 (26 August 2009)

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

Civil Appeal 11 of 2009

BETWEEN:

KIANTEITI TETABO and N. KEEANG TARATAU for issues of Nataua
Appellants

AND:

N. TOOTI KATARAKE, N. TIRIAM KATARAKE, N. MARETA KATARAKE for issues of Katarake
Respondents

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for Appellant: Michael N Takabwebwe
Counsel for Respondent: Taoing Taoaba

Date of Hearing: 24 August 2009
Date of Judgment: 26 August 2009

JUDGMENT OF THE COURT

Introduction

This is an appeal from a decision of the Chief Justice of 17 March 2009 declining to extend time within which to apply for a writ of certiorari. Certiorari was sought to quash a Land Court decision in 1960 (CN4/1960) registering the respondents’ ancestors as owners of the land Tabito 762-e and Tabito 762-u.

Background

Tekabu Katarake was registered as owner of the land in question in 1960. Thereafter the land was distributed to his descendants culminating in the present respondents.

In 2008 the appellants brought the current proceedings in the High Court (HCCC 145/08) seeking an extension of time within which to challenge the 1960 decision by writ of certiorari. The appellants alleged that Tekabu Katarake had obtained the land by fraud; that his land was really in another village nearby; that the land in question in fact belonged to the appellant’s ancestor, Natuau; and that Katarake’s allegation to the Magistrates’ Court that he owned the land was fraudulent.

The Chief Justice declined to extend time. He found that no reason had been advanced for the delay of 48 years before applying to the Court for redress. That was to be compared with the unfairness of disturbing the title on which the registered owners had relied over the intervening period.

The Appeal

In this Court Mr Takabwebwe advanced several grounds of appeal which can be distilled down to two.

The first ground was that it was demonstrable on the records that at the time that Katarake originally secured the registration of his title to the land, he was not entitled to it.

Having carefully analysed the documents to which Mr Takabwebwe referred us, we are quite clear that they do not support the conclusion he urged upon us. The records since 1960 are of no consequence because they simply reflect the 1960 decision that is now impugned. Of the records seemingly before that date, a register of lands (exhibit E appeal record p 22) clearly shows Tekabu Katarake as the owner of Tabito 762e and 762u. The appellant’s ancestor, Natuau Tourakai, on the other hand, is recorded as the owner of different land, Tabito 762a. If we have misinterpreted the appellant’s evidence to the broad effect that this is one of the documents showing their ancestor’s ownership before 1960 (affidavit of Kianteiti Tetabo para 3, appeal record p 9), and the document in fact post-dates 1960, it is at least clear that it does nothing to positively advance the appellants’ case.

To similar effect is the summary of land holdings in 1903 (appeal record 27). The ownership of three Tabito plots by a person described as "Tekabu, Ten" at Eita may be a reference to the land now in question or, if it is different land, is in no way inconsistent with the possibility that the same person also held the two Tabito plots now in question.

Finally Mr Takabwebwe drew our attention to two handwritten records of land holdings which we are prepared to assume pre-dated 1960 (appeal record 19; full document exhibit I and appeal record 26; full document exhibit I). But exhibit B does not show that the appellants’ ancestor owned Tabito 762-e or Tabito 762-u or land in the village of Banraeaba. Conversely Exhibit I does show the respondents’ ancestor, Tekabu, as the owner of three Tabito plots under the general heading Banraeaba. We were told that Banraeaba is the name of the village where the plots now in question were to be found.

We do not purport to come to any independent conclusions based on an analysis of these documents. It is sufficient to say that they do not support the appellant’s case that it was their ancestor who owned Tabito 762-e and Tabito 762-u. If anything, the documents suggest the contrary.

We have considered the merits at some length in deference to Mr Takabwebwe’s spirited argument that a fraud could be demonstrated on the documents produced. It could not. But in the end this is an appeal from the exercise of a discretion about delay. The appellant has the burden of showing that the Chief Justice exercised that discretion wrongly.

On that subject the only significant ground of appeal was that the delay of 48 years was explainable by the difficulties of education and access to legal resources experienced by people in the position of the respondents. We can understand that argument. However it could scarcely be an answer to a delay as long as this one. Equally important is the point mentioned by the Chief Justice that successive generations have now relied on the title as it has been understood since 1960.

We are satisfied that the Chief Justice correctly exercised his discretion in declining to extend time.

Conclusion

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

Hardie Boys JA
Tompkins JA
Fisher JA