Nantokana v Katangtang [2011] KIHC 20; Civil Case 180 of 2010 (3 June 2011)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION

Republic of Kiribati
Held at Betio

High Court Civil Case 180 of 2010

Between:

Tebukei Nantokana
Applicant

And:

Raete Katangtang
1st Respondent

Attorney General iro Lands Court of Aranuka
2nd Respondent

BEFORE: Hon Sir John Muria CJ

Mr Banuera Berina for the Applicant
Mr Raweita Beniata for the 1st Respondent

Date of Hearing: 3 June 2011

JUDGMENT

Muria CJ: This again is another case of a challenge to the decision of the Magistrates' Court over the registration of land by way of prerogative proceedings. In this case the applicant seeks extension of time to apply for leave in order to bring certiorari proceedings to quash the decision of the Magistrate given in case CNAR 58/08 in respect of the land Marena 55ae Aranuka. The applicant's application was filed on 1 November 2010.

The ground relied on by the applicant is that he was not aware of the proceedings in CNAR 58/08. He says that he was not present at the hearing and that he was not served with any summons or notice to attend Court. The applicant relied on his affidavit sworn to and filed on 1 November 2010 in which he denied having any knowledge of the case CNAR 58/08. Reference was made to Matou Tabora –v- Tokaruru Uruatarawa and Dr Tetaua Taitai (26 August 2009) CA Civ. App. 04/09 in support of the applicant's case.

On 16 May 2011, the first respondent had sworn to and filed an affidavit. In her affidavit evidence, the first respondent deposed to in paragraphs 3 to 9 as follows:-

"Serving the summon (notice of hearing)

3. First of all, I did serve a copy of the summon onto the Applicant at his house in Betio for the hearing of CNAR 58/08.

4. I get that summon from Aranuka island after I went there and after the court clerk at Aranuka island issued me with it.

5. After that I brought over the summon to Tarawa and then gave it to the Applicant at his house in Betio as above. However when I served such summon onto the Applicant, the Applicant first of all argued with me about the proceeding in Aranuka. Later he signed the summon and state he will write a letter to the court in Aranuka island.

6. After that I went back to Aranuka with the summon and attended the hearing.

7. In the proceeding I did clearly recall that I tell the Court everything about serving the summon onto the Applicant.

8. After ensuring that the summon reach the Applicant, the Court proceeded with the claim.

9. I noted however from the minutes CNAR 58/08 that this part is not included in the minutes.

Although the Court Minutes do not show what the first respondent told the Court about her encounter with the applicant about the services of the summons on him, there can be no doubt that the applicant was notified of the hearing at Aranuka before the Land Court on 16 December 2008. As deposed to in paragraph 5 of her affidavit, the applicant signed the summons and said he would write to the Court.

The applicant did indeed write to the Court on 10 December 2008 and putting his case to the court in writing. Among other things he wrote:

"This is my letter where I write it to you accompanied with the most respect to your judgment. I apologized that I manage not to make it to your Court proceedings, due to being busy with my work, and (where) the Court proceedings suddenly rushed as I was informed by Raete Katangtang when she came to me with a summon to the Court at Aranuka for the de-registration of the deceased name namely Kantoa Riimon. I have this idea in regard to a summon that came to me to sign it, but I am surprised Your Worships since my real name is Tebukei Kantoa, but then change to Kantoa Riimon".

The fact of serve on the applicant deposed to in the first respondent's affidavit is unchallenged. As a matter of fact also the applicant, by his letter, confirmed service and being notified of the hearing of CNAR 58/08 at Aranuka. He cannot now come to this Court and plead ignorance of the case and the decision against him. In this regard, Tabora's case is clearly against the present applicant's case.

The applicant knew about the case. He was a party to the case and he was notified of the hearing. He chose not to attend and chose to put his case in writing to the Court. There is simply no merit in the case he now brings to this Court seeking to challenge the Magistrates' Court's decision.

For the above reasons the application for extension of time is refused. It follows also that leave must also be refused.

In addition to the above reasons, there is a further reason for refusing both extension of time and leave. The applicant was a party to the CNAR 58/08. If he was not happy with that Court's decision, he has a right to appeal against that decision. A party who has a statutory right of appeal and who fails to invoke such right, has a harder row to hoe in applications of this nature. See Marawa Eritane –v- Ioteba Rubeia and Tewera Turabu (7 June 2011) High Court Civ. Case 118/2010.

The applicant sat on his right of appeal provided by statute and is now out of time by almost two years. He cannot by-pass the statutory machinery provided by law to him and come to Court via prerogative procedure. Even if he is out of time, the applicant who was a party to the case, can seek extension of time to file his appeal out of time. That is the door open to him, but not through the door of prerogative orders.

The applicant's application is refused with costs to the first respondent.

Dated the 8th day of June 2011

SIR JOHN MURIA
Chief Justice