Tannang v Temare [2012] KIHC 19; Civil Case 11 of 2012 (29 June 2012)

IN THE HIGH COURT OF KIRIBATI

CIVIL CASE NO. 11 OF 2012

BETWEEN

KATEIA TANNANG FOR THE FAMILY
APPLICANTS

AND

TEABIKE TEMARE
1ST RESPONDENT

ATTORNEY GENERAL IRO LANDS COURT
2ND RESPONDENT

Before: Hon Chief Justice Sir John Muria

28 June 2012

Mr Michael Takabwebwe for Applicants
Mr Banuera Berina for First Respondent

JUDGMENT

Muria CJ: The applicants in this case are seeking to challenge the decision of the Magistrates' Court in CN 377/91 by way of certiorari for which leave is required. Before they can do that, however, they now ask for extension of time to apply for leave to bring proceedings by way of certiorari. The Court will first of all decide whether extension of time should be granted to the applicants in this case.

Brief Background

I deal briefly with the background circumstances of the case. In the case BA 377/91 the Bairiki Magistrates' Court in an application by N. Kaai Kabuaua, decided on 31 July 1991 that the Land Tenono 741a, be transferred to Teabike Temare and to have his name registered on the land. N. Kaai Kabuaua's, next-of-kin, N. Maria Tabito, also consented to the transfer. Subsequently, the Land Tenono 741a was registered in the name of the first respondent.

The Court minutes show that the Land was given to the first respondent as a gift for all the care and kindness given to N. Kaai Kabuaua by the first respondent.

Grounds for Seeking Extension of Time

The main reason for seeking extension of time is that the applicants did not know about the decision of the Magistrates' Court in CN BA 377/91 until 2010. The applicants at all times were then residing at Abemama. It is argued on their behalf that it was following their search in the National Archives for the lands of their ancestor Kabangaki Tekateke in South Tarawa that they discovered that Land Tenono 741e was originally owned by their ancestor, Kabangaki Tekateke.

In the light of their discovery of the land owned by their ancestor Kabangaki Tekateke in South Tarawa, they now seek to challenge the decision of the Magistrates' Court in CN BA 377/91. It was submitted by Mr Takabwebwe of Counsel for the applicants that the applicants have not slept on their right to challenge CN BA 377/91 since they had not been notified or summoned to attend the hearing, even though they had an interest in the land in question.

In response, Mr Berina of Counsel for the first respondent submitted that the applicants in this case are in effect challenging the Court's decision given on 20 April 1948 under the guise of challenging CN BA 377/91. References were made to the affidavits of the applicants to show that the applicants' case is all about asserting their claim over the land in question after their search in the National Archives.

I have to say that having read the three affidavits filed by the applicants, respectively dated 20 February 2012, 19 March 2012 and 27 June 2012, there is some force in the submission by Mr Berina of Counsel for the first respondent. The whole tenor of the case for the applicants as catalogued in the three affidavits is that the applicants having now armed with information from the National Archives about their interest in the lands owned by their ancestors, have now taken steps to assert their interest in the lands concerned. One of the steps they have now taken is to challenge the decision of the Magistrates' Court in CN BA 377/91 and have sought extension of time to do so.

In my view it would not be right to grant an extension of time to the applicants to challenge the decision of the Court in CN BA 377/91. Principally there are three reasons for not allowing extension of time in this case.

First, the applicants cannot complain about not being given notice of the hearing in CN BA 377/91. How would the parties in that case know if the applicants had an interest in the land in question, so as to have them served with notice of hearing? The applicants were not there. They were still searching for information about the lands owned by their ancestor even up to 2010. It was only after 2010 that the applicants began taking steps to assert their land interest. That was 19 years after the Court's decision in CN BA 377/91. They cannot complain about being denied natural justice in this case. This ground is misconceived and no extension of time will cure this defect.

Secondly, there are two lands involved in this case, Tenono 741a and Tenono 741e. Although there is suggestion by the applicants that there is only one land, Tenono 741e. This is a matter that can be ascertained by the Magistrates' Court in a case properly brought before it, rather than as a reason to disturb CN BA 377/91. This Court is not the proper place to ascertain the true nature of 741a and 741e. It would not be proper to extend time to challenge CN BA 377/91 in this regard either.

Thirdly, extension of time is in the discretion of the Court. A 21 year delay coupled with the above two considerations is more than sufficient to exercise the Court's discretion to refuse extension of time in this case.

ORDER OF COURT:

The application for extension of time to challenge the decision of the Magistrates' Court in CNBA 377/91 by way of prerogative writs is refused.
Costs of $200.00 to the first respondent.

Dated the 29th day of June 2012

SIR JOHN MURIA
Chief Justice