Tiroba v Tiroba [2012] KIHC 13; Civil Case 159 of 2008 (5 June 2012)

IN THE HIGH COURT OF KIRIBATI

CIVIL CASE NO. 159 OF 2008

BETWEEN

N. BEIA TIROBA MT MM
APPLICANTS

AND

N. ATARAKE TIROBA
TAKE TIROBA
ATTORNEY GENERAL IRO LANDS
COURT
RESPONDENTS

Before: Hon Chief Justice Sir John Muria

5 June 2012

Mr Raweita Beniata for Applicants
Ms Nancy Walker for 1st and 2nd Respondents
No appearance for 3rd Respondent

JUDGMENT

Muria CJ: The applicants intend to bring certiorari proceedings to quash the decision of the Magistrates' Court in CN 21/07 and to have CN 43/06 continued and completed.

In order to have the matter properly dealt with, the Court in the exercise of its discretion, allowed the applicants to bring their application for leave outside the time limit. Having granted extension of time to do so, Mr Beniata of Counsel for the applicants submitted that leave should be granted to the applicants to bring certiorari proceedings in this case.

Ms Walker objected to the application on the basis that the applicants had no merit in their quest for challenging the Magistrates' Court's decision in CN 21/07 and that there would be substantial prejudice to the respondents if leave is granted.

Both parties relied on the affidavits they respectively filed in this matter.

The question whether leave should be granted or not is in the discretion of the Court. The applicants, however, must establish the basis for the granting of leave in their favour.

One factor to be considered is the question of delay. In this case the delay is 1 year 5 months. The explanation for the delay is accepted for the purpose of granting extension of time. It remains a consideration also in deciding whether leave should be granted. I bear this delay in mind.

What troubles the Court in this matter is the fact that earlier the Magistrates' Court dealt with CN 43/06 on 5 July 2006 in respect of the application by the applicants to register their names on Land Tabonteba 202-o and that Magistrates' Court did not complete that case because the respondents who had an interest in the case were not present. So it was adjourned. On 28 May 2007 the same Magistrates' Court dealt with CN 21/07 and completed it. Obviously the Magistrates' Court knew that the case concerned the same land. The Magistrates' Court also knew that the respondents had an interest in the land. So the Magistrates' Court adjourned the case CN 43/06 to enable them to attend. Yet when the Magistrates' Court sat on 28 May 2007 in CN 21/07 in a matter concerning the same land, and same people, the Magistrates' Court went ahead and decided on the matter in favour of the respondents.

Without considering the merits of the case and rights of each of the parties over the same land in question, this was a very unsatisfactory way to deal with the matter in this case. At least in the present case, it merits the grant of leave so that the Court can be able to ascertain the substances of the parties' case over the land in question.

The Court therefore grants leave to bring certiorari proceedings in this. Leave granted.

Dated the 5th day of June 2012

SIR JOHN MURIA
Chief Justice