Tabora v Uruatarawa [2009] KICA 9; Civil Appeal 04 of 2009 (26 August 2009)

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

Civil Appeal 4 of 2009

BETWEEN:

MATOU TABORA
APPELLANT

AND:

TOKARURU URUATARAWA
FIRST RESPONDENT

AND:

DR. TETAUA TAITAI
SECOND RESPONDENT

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for appellant: Mantaia Kaongotao
Counsel for respondents: Botika Maitinnara

Date of Hearing: 24 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 on 9 September 2008 declining to extend time within which to apply for certiorari. The appellant had sought certiorari to challenge a decision of the Magistrates’ Court of 19 September 1991 in CN 479/91.

Background

[2] It is not disputed that the appellant inherited from her father, Tabora, an interest in the land in sub-plot Bukinekua 732e and that in 1991 her cousin, the first respondent, sold a portion of the land to the second respondent.

[3] The first respondent does not dispute that the appellant had an interest in the land. With refreshing candour she says that she registered her name on the land alone, and sold a portion of it to the second respondent, because she knew that the Tabora family had gone to Fiji and did not think that they would return to Kiribati. The first respondent acknowledges that she did not contact the Tabora family when she applied for Magistrates’ Court approval of the sale in CN 479/91 on 19 September 1991. She agrees that the sale was approved without their knowledge.

[4] In 1998 the appellant’s daughter returned to Kiribati and attempted to settle on the land. When she found that the first respondent purported to have sold it to the second respondent she brought proceedings in the Magistrates’ Court challenging the sale. Her proceedings were dismissed on the ground that she lacked locus standi: any such proceedings had to be brought by the appellant herself.

[5] The second respondent happened to be in Fiji as the Kiribati diplomatic representative there. When her daughter told the appellant what had happened she took it up with the second respondent. But he said that as far as he was concerned he had obtained good title to the land.

[6] At the daughter’s instigation, the appellant came to Kiribati in 2001 and began a long and fruitless attempt to challenge the title. First she spent much time investigating the background and attempting to locate the relevant title records. Then in 2004 she issued unsuccessful proceedings in the Magistrates’ Court (CN 67/04) seeking to challenge the 1991 decision which had approved the sale to the second respondent. Thereafter the main problem appears to have been a succession of different lawyers and delays in the People’s Lawyers’ Office. Eventually the appellant finished up in the hands of Mr Kaongotao in February 2008. He immediately issued the current proceedings seeking an extension of time within which to apply for certiorari quashing the 1991 decision.

[7] The appellant has been living on the land since 2004.

Certiorari application in the High Court

[8] The Chief Justice held that the delay of 17 years counted against any extension of time. The appellant’s daughter had known of the 1991 decision since 1998. He expressed some sympathy for the delay of about four years from 2004 during which the appellant was seeking assistance from the People’s Lawyer. However having regard to the overall length of the delay, and the knowledge of the appellant’s daughter for much of that period, he declined to exercise his discretion in favour of the appellant. He also pointed to the unfairness to the respondents in disturbing the title upon which they had been acting for such a lengthy period. They were entitled to rely upon the principle of certainty of title.

The Appeal

[9] In this Court Mr Kaongotao advanced a number of grounds that lacked substance. Whether the appellant was still within time under the Limitation Act is irrelevant on an application of this kind and it could be no answer to say that the delay was that of the daughter rather than the appellant.

[10] However in the course of discussion a number of points emerged in this Court which may not have been sufficiently brought to the attention of the Chief Justice.

a. The first respondent lacked title to the land (whether in whole or in part we do not need to decide) and was therefore incapable of passing title to the second respondent.

b. The first respondent registered her name as sole owner of the land, sold it, and obtained the Court’s approval, knowing that the appellant had an interest in it and deliberately withholding all knowledge of these events from the appellant and her family.

c. While the appellant and her family allowed 10 years to go by between learning of the sale and bringing the current proceedings they were not inactive during that period. To the knowledge of the respondents, they were doing their best to contest the sale, however ineffectually, first through the daughter and then through the appellant.

d. The delay has not materially prejudiced the second respondent – he was told of the appellant’s claim at an early stage and the appellant has resided on the land since 2004.

[11] Normally a delay of 17 years would be fatal to an application of this kind. However the magnitude of the delay is only one of the relevant factors. Others include the nature of the original invalidity which is now under challenge, the date on which the applicant first heard of the decision to be challenged, the steps taken by the applicant thereafter, the extent to which the delay may be attributable to lawyers, and the extent to which innocent third parties have taken steps in reliance upon the original decision before being advised of the challenge.

[12] We are satisfied that this is one of those unusual cases in which, notwithstanding a delay of this magnitude, it was appropriate to extend time to bring the current proceedings. Leave is given accordingly.

Certiorari merits

[13] The Chief Justice commenced his judgment with the words "Application to quash a decision made in 1991" and ended with "Application for certiorari fails." He clearly had in mind the substantive application as well as the question of delay. The affidavits deal with the merits as well as delay. The record of the hearing in the High Court, and the nature of the argument in this Court, persuade us that the parties have already said all that they could usefully say on the merits of the certiorari application itself.

[14] Rather than putting everyone to the trouble of traversing the merits again in the High Court we are prepared to deal with the substantive application for certiorari. For the reasons previously traversed we consider that the 1991 decision, and any related decisions registering the first respondent as the sole owner of the land in Bukintekua 732e, should be set aside.

Result

[15] The appeal is allowed. The decision of the Magistrates’ Court of 19 September 1991 in CN 479/91 is quashed as are any decisions registering the first respondent as the sole owner of the land in Bukintekua 732e and any consequential decisions or records registering the second respondent as the owner of all or part of that land.

[16] It will be for the parties to decide whether to institute fresh proceedings in the Magistrates’ Court to determine all or any of the following questions:

(a) Whether, in addition to the appellant, any other person had an interest in sub-plot Bukinekua 732e immediately prior to the purported sale to the second respondent.

(b) Whether the first respondent had any form of interest in the land capable of being sold to some other person.

(c) Whether the second respondent received, subject to the Court’s approval, any form of interest in the land.

(d) Whether in the exercise of its jurisdiction under S. 23(1) of the Magistrates’ Courts Ordinance, the Court should give judgment for the second respondent against the first respondent by way of refund of all or part of the purchase price paid.

(e) Any other issue arising out of the foregoing questions.

[17] There will be an order for costs to the appellant to be agreed or taxed.

Hardie Boys JA
Tompkins JA
Fisher JA