Taubenua v Descendants of Niteru [1997] KIHC 61; HCLA 023.91 (29 July 1997)

IN THE HIGH COURT OF KIRIBATI
HELD IN ARORAE
(BEFORE THE HON R LUSSICK C.J.)

HCLA 23/91

BETWEEN:

BORAUEA TAUBENUA
Appellant

AND:

DESCENDANTS OF TAUBENUA NITERU
DESCENDANTS OF NITERU NITERU
Respondents

No appearance of Appellant
No appearance of Respondents

Date of Hearing: 22 July 1997

JUDGMENT

This is an application for leave to appeal out of time. The application was made on 4 January 1991 and has been in the list ever since.

None of the parties appeared when the application was called on for hearing. The applicant had not been served with a notice of hearing and the respondents had written to the Chief Justice from Tarawa requesting an adjournment.

In such a case, the normal procedure would be to adjourn the hearing of the application to the next sittings on Arorae, which would probably be in 1998. However, to do so in the present case would be futile and would only serve to further delay the applicant in the prosecution of his claim by the proper procedure.

We say this because the applicant has no right of appeal. He seeks to appeal a 1956 decision of the Arorae Magistrates' Court - case 5/1956 - to which he was not a party. In fact his application shows that he was only 2 years old at the time of that decision.

The applicant is dissatisfied with the distribution of the estate of his grandfather, Niteru Niteru, which was made in that case. The only lands received by the applicant's father, Taubenua Niteru, were a babai pit and a pond. The applicant's father died before this distribution and apparently his share was given to his descendants by his first spouse. The applicant, who is the son of Taubenua by his second spouse, received nothing.

According to the applicant, he learned of this distribution only in 1991 upon returning to Arorae after 40 years abroad. There was no explanation in the application of why enquiries were not put in train before that time. Be that as it may, the law is clear that since the applicant was not a party to the 1956 proceedings he has no right of appeal. Only a party to the proceedings in the lower court can bring an appeal against the decision therein. If the applicant considers that he has a justiciable claim then his proper recourse is bring an action of his own. However, it is not something he can do by way of an appeal.

There would thus be no point in granting leave to appeal out of time. The application is therefore refused.

We would only add that we sympathise with the applicant in having to wait so long only to learn that he has no right of appeal.

The applicant is advised that he has a right to appeal to the Court of Appeal within 6 weeks.

THE HON R B LUSSICK
Chief Justice
(29/07/97)

TEKAIE TENANORA
Magistrate
(29/07/97)

BETERO KAITANGARE
Magistrate
(29/07/97)