Taberu v Redfern [2001] KIHC 18; Land Appeal 196 of 1988 (10 April 2001)

IN THE HIGH COURT OF KIRIBATI
LAND JURISDICTION
HELD AT ABAOKORO
REPUBLIC OF KIRIBATI

High Court Land Appeal 196 of 1988

Between:

NEI TAARA TABERU
(REPRESENTED BY TAAKE KAITEIE)
Appellant

And:

OBETA REDFERN
Respondent

For the Appellant: Mr Neil Allen
For the Respondent: Mr Aomoro Amten

Date of Hearing: 10 April 2001

JUDGMENT
(Ex Tempore)

This is an application for leave to appeal out of time from the decision of the magistrates given on 16 February 1983. No appeal from that decision was lodged for several years. Mr Allen says that was because the then owner, (the mother-in-law of his client, Ioana Kaiteie, who himself was the husband of Nei Taake the daughter of Nei Taberu), the then owner was living on Christmas Island and knew nothing of the case.

The first document in the file asking for leave to appeal is an unsigned letter dated 20/9/88 from Taake Kaiteiea for “Taara Tabeau”. That letter has been endorsed – it looks to be in the writing of Maxwell CJ – “Leave granted”. Thereafter on the cover of the file there are several notations over the years indicating the intention to have a hearing. The last is a note, not in the hand of Maxwell CJ, dated 22/6/93. We do not regard the notation as sufficient to give leave to appeal. It looks as though the then Chief Justice purported to grant leave out of time by administrative fiat. With due respect to him, that was not a valid exercise of power. Leave could only have been granted in open court in the presence of the parties and after hearing argument, particularly from the respondent. As leave had not been granted it follows that the later attempts to bring the appeal on were of no effect.

Nothing has been done since 1993 by the parties or by the Court. So far as the Court is concerned it looks as though the file was put away and forgotten. It was found and brought to this sitting of the Court on North Tarawa because Mr Allen’s client heard on the wireless of the sitting.

The administrators over the years of the Court are partly responsible for this lamentable delay but so is the appellant. The court sat on North Tarawa in 1996 but Mr Allen’s client says he did not know of the sitting. There is a long delay to explain.

Even more significant is the time which has elapsed since the original hearing. Both the then owner, the mother-in-law of Mr Allen’s client, his wife, the daughter of the then owner and the respondent are dead. It was only by chance that a daughter of the respondent was in court in connection with another matter and so could instruct Mr Amten. Mr Allen urges us to give leave and to allow the appeal because on the face of the record his client’s mother-in-law was not notified of the 1983 proceedings. It in fact looks as though she was not notified. If an appeal were allowed all we could do would be to send the case back for rehearing. That would be to present the magistrates with a near impossible task of deciding matters of fact when many of those concerned are already dead.

All this apart from the question which has not been argued – as to whether Mr Allen’s client has standing to conduct these proceedings.

Because first of the delay of at least 8 years by the appellant and her heirs in doing anything to prosecute the appeal and secondly because of the near impossibility now of actually getting at the facts, we refuse leave to appeal.

	THE HON ROBIN MILLHOUSE QC CHIEF JUSTICE
TEKAIE TENANORA MAGISTRATE			BETERO KAITANGARE MAGISTRATE