Eritane v Rubeia [2011] KIHC 28; Civil Case 118 of 2010 (7 June 2011)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION

Held at Betio
Republic of Kiribati

High Court Civil Case 118 of 2010

Between:

Marawa Eritane
Applicant

And:

Ioteba Rubeia
1st Respondent

Tewera Turabu
2nd Respondent

BEFORE: The Hon Sir John Muria CJ

Mr Banuera Berina for the Applicant
Ms Elsie Karakaua for the 1st Respondent
Mr Michael Takabwebwe for the 2nd Respondent

Date of Hearing: 20 May 2011

JUDGMENT

Muria CJ: At the commencement of the hearing of this matter, the Court had indicated to the parties of the need to adhere to the requirements of the rules under Order 61 of the High Court (Civil Procedure) Rules 1964 which still apply in Kiribati when seeking the prerogative orders of mandamus, prohibition or certiorari. Faced with the requirements of Rules 2 and 3 of O.61, which provisions I will set out shortly, the applicant is required to seek extension of time to apply for leave before making the application for leave if the extension of time is granted.

In view of the manner in which the matter is brought, the Court is prepared to hear the applicant's applications for extension of time and for leave to bring certiorari proceedings at the same time.

Brief Background

2. I deal briefly with the background circumstances of the case. On
4 May 1999 an application, in case number B 168/99, came before the Single Magistrate's Court at Bairiki for the registration of the land Aontebike, Bonriki No. 586a. The record shows that the parties to the case were Batiri Bataua (as applicant) and Kakiaba Tekanene and Marawa Eritane (as respondents). The Court dealt with the case and then adjourned to 11 May 1999.

3. The Court record shows that the application was finally dealt with on 29 June 1999 when the Single Magistrate determined that the application for registration was approved and ordered that the names of the respondents, Kakiaba Tekanene and Marawa Eritane be deleted and replaced with "the issues of Nei Kabao and Nei Tekaau" on the land register over Aontebike 586a, Bonriki. There were no names mentioned as "the issues of" Nei Kabao and Nei Tekaau in the decision of the Court made on 29 June 1999.

4. Subsequently an application was brought on 6 December 2000 in CN 465/00 for the Court to approve the names of the "issues of" Nei Kabao and Nei Tekaau to be registered over the land Aontebike 586a Bonriki. The names selected were Ioteba Rubeia for the issues of Nei Kabao and Tewera Turabu for the issues of Nei Tekaau. Consequently the names of Ioteba Rubeia and Tewera Turabu were registered over the land Aontebike 586a Bonriki.

5. The present applicant, Marawa Eritane, seeks to challenge the Magistrates' Court's decisions in CN B168/99 and CN 465/00 and has now sought extension of time to apply for leave to do so.

The Rules

6. As I mentioned earlier, the requirements of Rules 2(1) and 3 of O.61 must be complied with. The provisions of the two Rules are as follows:

"2(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this Rule.

............

3. Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any written law; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

7. Relevant to this case also is Rule 5 of O.61 which gives the Court general power to enlarge time. The Court's power under this rule is discretionary and can only be exercised if the applicant show a strong case for an extension of the time spelled out in the rule.

Grounds in support of application

8. Since the first hurdle faced by the applicant is to obtain an extension of time to apply for leave, she must establish the justification for an extension of time despite the long delay of 11 years (in respect of CN B168/99) and 10 years (in respect of CN 465/00) in bringing the challenge to those decisions.

9. In her application for leave, the applicant states that the registration of respondents' names over the land was done in a manner prejudicial to her in that although she was named a party to the proceedings, she was never served or summonsed to attend the hearing and that her consent was never obtained. With regard to the delay in challenging the Court decisions, she stated that she was not aware of the two cases (B168/99 and 465/00). The applicant concedes that the 1999 decision is now over 10 years.

10. As a buttress to the applicant's ground that she was not aware of the two previous cases, she refers to the Court Minutes which she said, did not show any proof of service on her. The Minutes simply says "Kakiaba and Marawa did not appear. Represented by letter (marked as exhibits 1 and 2)". Regrettably the letters (Exhibit 1 and Exhibit 2) referred to have not been found. There appears to be no explanation either as to how or why the Exhibits are missing from the Court record.

11. Counsel for the applicant has been equivocal that there is only one reason for the delay in bringing the case to Court, and that is, ignorance. I take that to mean ignorance of the proceedings in cases B168/99 and 465/00 which led to the registration of the names of the respondents (Ioteba Rubeia and Tewera Turabu) over the land in question.

Submission by applicant and respondents

12. At this stage of the proceedings before this Court, the only issue for determination is whether time should be extended for applicant to apply for leave to issue proceedings for certiorari. The question of whether the registration of the respondents' names over the land was validly done or not is a matter to be determined at the hearing of the certiorari proceedings, if the applicant will get to that stage.

13. Mr Berina of Counsel for the applicant concedes at the outset that the applicant was more than 10 years late in bringing her application to challenge those decisions. Nevertheless Counsel sought to justify the delay on the sole reason that the applicant was ignorant of the two decisions by the Magistrates' Court, in 1999 and 2000. In support of his case, Counsel relied on the decision of the Court of Appeal in Matou Tabora –v- Tokaruru Uruatarawa and Dr Tetaua Taitai (26 August 2009) Court of Appeal of Kiribati Civ. App. 04/2009.

14. Ms Karakaua of Counsel for the first respondent, Ioteba Rubeia, in response, submitted that the applicant had slept on her right for 11 years. She had been living in South Tarawa throughout the whole 11 years and did nothing about the Magistrates' Court's decisions. Counsel further submitted that Tabora's case was unusual, in that the applicants in that case had been living overseas, in Fiji, and were not aware of any registration made on their land. They set on pursuing their case as soon as returned to Kiribati. The delay of 17 years was justified in that case, contended Counsel.

15. Mr Takabwebwe of Counsel for the second respondent, Tewera Turabu, directed the Court's attention to the record of the proceedings before the Magistrate in the Magistrates' Court in order to rebut the applicant's suggestion that she was not aware of the proceedings against her in the Magistrates' Court. In this regard Counsel referred to the Court Minutes which noted that when the case B168/99 was called the respondents, Kakiaba Tekanene and Marawa Eritane (now applicant), they were not present but had written letters to the Court:

"Kakiaba and Marawa not present: they however appeared as per letters (marked as Exhibit 1 and Exhibit 2)".

That says Counsel is proof of the fact that the applicant had been notified and summonsed to the hearing on 4 May 1999. Counsel further submitted that the applicant could not have written to the Court had she not been notified of the case.

16. Counsel further referred to the Court Minute which shows that at the adjourned hearing on 29 June 1999 the consent of Kakiaba Tekanene and Marawa Eritane were obtained and produced to the Court as Exhibit 3. The Court was also told that Marawa's child was too small. The Court then ordered the names of Kakiaba Tekanene and Marawa Eritane to be deleted from the register and replaced with "the issues of Nei Kabao and Nei Tekaau". This, Counsel suggests, also shows that the applicant was very much aware of the proceedings before the Magistrates' Court.

17. It is not disputed that the names of "the issues of Nei Kabao and Nei Tekaau" (first and second respondent) were registered following the Magistrates' Court's decision in 465/00.

Whether applicant was aware of the proceedings in Magistrates' Court

18. The issue of whether the applicant was very much aware of the cases B168/99 and 465/00 would have been easily resolved had Batiri Bataua (the applicant in B168/99) and Kakiaba Tekanene (one of the respondents in that case) are still alive today and who could testify on this aspect of the case. Batiri died in 2009 and Tekanene passed away in 2003. We are thus left with the Court record to resolve this issue.

19. Despite the two letters tendered as Exhibit 1 and Exhibit 2 in the Magistrates' Court missing from the Court files, the Court Minutes clearly recorded the receipt of the two letters from Tekanene and the applicant on 4 May 1999. The two letters were undoubtedly written by Kakiaba Tekanene and the applicant in response to the proceedings taken against them by Batiri Bataua.

20. It is equally important to note that on 4 May 1999 the Court further adjourned the case in order to obtain the consent of the children of Kakiaba Tekanene and the applicant. The Court heard that the applicant had a child who is "3 years" old and who was obviously not able to give consent. At the adjourned hearing on 29 June 1999, the Court asked Batiri Bataua if he had obtained the consent of the children of Kakiaba Tekanene and the applicant. The Court record shows that Batiri Bataua, in response, produced and tendered a document (marked Exhibit 3). Apart from what that document might state with regard to Kakiaba's children, it also contained information showing that "Marawa's child is too small". That information given to and noted by the Court that the applicant's child "is too small" could only be ascertained by Batiri Bataua after consulting the applicant.

21. When these aspects of the case are put together, the only reasonable conclusion that one can draw from them is that the applicant, being named as a party, was aware of the proceedings before the Magistrates' Court on the land in question in 1999. I so find.

22. The burden of showing good reason to justify extension of time after more than 10 years' lapse, rests on the applicant. The registration complained of by the applicant was done in open court and there was no evidence to suggest that it was concealed from the applicant as she claimed. It is therefore highly unlikely that the applicant would not have known about it, particularly having been named a party to the proceedings in B168/99.

23. Tabora's case, in my view, does not help the applicant's case. That case really turns on its own unusual, factual circumstances, particularly in the first place, the first respondent lack title to the land and so could not pass it on to the second respondent. So despite the 17 years' delay, the Court of Appeal was able to exercise its discretion and extend time. That is not the position in the present case. There is no suggestion here that the names of the respondents could not be lawfully registered against the land in question.

24. Despite the firm and able argument by Mr Berina, the delay of over 10 years in this case cannot be ignored. It is fatal to the applicant's request for extension of time. For the above reasons, extension of time to apply for leave to bring certiorari proceedings is refused.

25. There is also a further reason why the Court, in the exercise of its discretion, cannot grant an extension of time in this case. The applicant was a party to the case in B168/99 in which the Magistrates' Court ordered that her name be deleted from the register. The Statute provides her a right of appeal. That right is provided in section 75(2) of the Magistrates' Court Ordinance which stipulates that an aggrieved party to the case must lodge his appeal within 21 days from the date of the judgment or decision complained of. The applicant failed to exercise her statutory right of appeal within the time allowed nor seek extension of time to do so.

26. Accepting that a failure to exercise a statutory right of appeal does not exclude the applicant's right to seek prerogative remedies, it is certainly an important consideration weighing heavily on the Court's mind when exercising its discretion in a case such as this. This is all the more reason for the applicant to show a strong case for an extension of time.

27. In the circumstances of this case, the applicant has failed to make out that strong case for an extension of time.

28. Having refused extension of time, it follows that leave to bring certiorari proceedings is also refused.

Application refused with costs to the first and second respondents.

Dated the 7th day of June 2011

SIR JOHN MURIA
Chief Justice