Kanoanie v Ruata [2005] KIHC 163; Civil Case 55 of 2005 (29 December 2005)

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

High Court Civil Case No. 55 of 2005

Between:

UAKERITA KANOANIE
Applicant

And:

ATAUEA RUATA MT MM
KAATO KABUNARE MT MM
Respondents

For the Applicant: Mr Karotu Tiba
For the Respondents: Mr Banuera Berina

Date of Hearing: 29 December 2005

JUDGMENT
(Ex Tempore)

This is an application to extend time within which to apply for an order of certiorari to review and quash the decision in Abaiang CN 26/96 in which a piece of land Tekawewe was registered in the name of the first respondent.

I have acted on the view that sitting alone I may hear and determine an application to extend time. If the application be successful then the application for certiorari should be heard by my brothers and me as if it were a land appeal.

Fraud is claimed in CN 26/96 in that it is said that neither the applicant nor his father were aware of the hearing. In CN 5/99 the magistrates accepted (without proof) that there had been fraud. Their decision was quashed in HCLA 13/2000: see the Order dated 26 July 2002 and the Judgment dated 20 September 2002. The respondent has continued in possession of the land since 1996.

The applicant must have considered appealing in HCLA 13/2000 to the Court of Appeal as a fee of $25 was paid on 4 October 2002. The appeal has not been prosecuted.

Now, since the advice of the Court of Appeal that time limits may be avoided by applying for certiorari the applicant has made this application.

Mr Berina has relied heavily on the remark we made in the Judgment of 20 September 2002:

I may add that even if we had the power I personally would have been unwilling – although open to persuasion perhaps after argument – to exercise it after so long.

Mr Berina argues that since then the applicant has slept on his rights for another three years what we said in 2002 is reinforced.

Finally, considering the submissions of both counsel I have concluded that after nearly 10 years the decision in CN 26/96 should stand. Certainty of title demands it.

The application for leave to bring the application for certiorari out of time is refused.

THE HON ROBIN MILLHOUSE QC
Chief Justice