Nantokana v Katangtang [2012] KICA 6; Civil Appeal 7 of 2012 (15 August 2012)

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

Civil Appeal No. 7 of 2012

BETWEEN

TEBUKEI NANTOKANA
APPELLANT

AND

RAETE KATANGTANG
1ST RESPONDENT

ATTORNEY-GENERAL IRO LANDS COURT
OF ARANUKA
2ND RESPONDENT

Before: Paterson JA
Williams JA
Barker JA

Counsel: Kafoa Muaror for appellant
Raweita Beniata for 1st respondent

Date of Hearing: 11 August 2012
Date of Judgment: 15 August 2012

JUDGMENT OF THE COURT

1. This is an appeal against the judgment of the Chief Justice dated 8 June 2011 whereby he refused an application for an extension of time to apply for leave to bring certiorari proceedings.
   
2. If leave were to be given the appellant seeks to quash the decision of a Magistrate given in the case CN AR 58/08 in respect of land known as Marena 55 ae Aranuka. The land in question is leased to the Government for an airfield and the applicant claims to have collected the rent.
   
3. The appellant's affidavit in support of his original application for leave to apply for an order of certiorari alleged he was not present at the Aranuka Land Court's hearing on 16 December 2008 and there was no proof of service. This allegation may have raised natural justice issues.
   
4. However, it has since been established that he was served with the summons and wrote a letter to the Land Court. His affidavit is misleading. It is difficult to accept that in the matter of a land proceeding, which the appellant now alleges made an unjust decision, the appellant had forgotten that the summons was served on him and that he wrote a letter to the Land Court.
   
5. It is not surprising that the Chief Justice saw little merit in the application. He refused to give the extension and also noted that the appellant should have exercised his statutory right of appeal and sought leave to appeal out of time.
   
6. A statutory right of appeal is provided in s.75(2) of the Magistrates' Court Ordinance which requires a party to appeal within 21 days of the decision. This did not occur. The decision of the Aranuka Lands Court was made on 16 December 2008.
   
7. Certiorari is a discretionary residual remedy. An applicant must be prepared to furnish an explanation to the Court as to why the statutory procedure is not being followed.
   
8. In the circumstances of the present case the proper course is for the appellant to seek an extension of time in which to bring an appeal and to justify his delay.
   
9. The learned Chief Justice was correct in his approach.
   
10. The appeal will be dismissed. The appellant will pay to the respondent her costs of appeal and in default of agreement to be fixed by the Registrar.
    

Paterson JA

Williams JA

Barker JA