Tannang v Tooma [2012] KIHC 32; Civil Case 160 of 2011 (25 July 2012)

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

HIGH COURT CIVIL CASE 160 OF 2011

BETWEEN:

KATEIA TANNANG FOR THE FAMILY
APPLICANT

AND:

TEITI TOOMA (TARURU) FOR THE FAMILY
1ST RESPONDENT

AND:

AG IRO LANDS COURT
2ND RESPONDENT

FOR APPLICANT: MICHAEL TAKABWEBWE
FOR 1st RESPONDENT: MAERE KIRATA
Date of Hearing: 2 & 23 May & 20 June 2012

JUDGMENT

This is an application by the applicant representing herself and her family to challenge the decision of the Magistrates' Court in CN 12/85 by way of certiorari. For this the applicant had come to Court to seek the Court's leave first for the extension of time and for an order of certiorari. The Court will first decide on the issue of out of time before considering leave to bring proceedings by way of certiorari.

Case Background

In CN 12/85 the Magistrate Court dealt with the registration and distribution of two plots of lands Tenono 741e and Antebuka 835/1. Tenono 741e was divided into 3 shares among Taake Nabuti and Teiti; Nei Kaitia and Nakabuta; and Nei Maria Tabito. Antebuka 835/1 was divided into two shares among Nei Maria (issue of Nei Teraimoa); and Taake, Teiti and Nakabuta with sister.

Grounds for Seeking Extension of Time

Three grounds were brought up to support this application, which are as follows;

- That the applicant and all other member s of the family has no knowledge at all of the decision in CN 12/85 as she nor any other member of the family had not been notified nor summoned nor given the opportunity at all to attend the hearing in this case,

- That the applicant and all other members of her family come from the outer island called Abemama where they had been raised and living and were still at Abemama when CN 12/85 was heard and determined, and

- That the applicant just knew for the first time about the decision in CN 12/85 sometime in 2010.

It was argued on their behalf that all their lives they had been living in Abemama, no knowledge about the decision of CN 12/85 until sometimes in 2010 when they became aware of the existence of the land Tenono 741e which was originally owned by their ancestor, Kabangaki Tekateke, following their search in the National Archives, hence the reason for this application.

Counsel for the applicant submitted that his client had not been sleeping on their right but were not notified or summoned to the hearing of CN 12/85. In response, Counsel for the respondent argued that they could not have been notified or summoned since they were not related to Kabangaki Tekaie, the respondent's ancestor who had title over this plot of land. The land was registered under Kabangaki Tekaie when it was distributed in 12/85. All interested parties were notified of the hearing but not the applicants since they do not have an interest over this plot of land.

The respondent also argued that CN 12/85 was decided in 1985, almost 30 years of delay. A principle of certainty of title is applicable here.

After hearing submissions and considering the affidavits from both sides, I am inclined to follow the respondent's arguments. When one looks at it, one would wonder how could the applicants complained about not being summoned to the hearing in CN 12/85 when they themselves were not aware that they have an interest over Tenono 741e at the time of the hearing. It was not the fault of the respondent or the Lands Court. At that time the applicants were still searching for information about their ancestor's lands. It was only sometimes in 2010 that they became aware of this land. Natural justice is therefore not applicable here.

From the above, this Court will exercise its discretion to refuse the extension of time.

Judgment for the respondent with cost.

Dated 25th July 2012

...........................................
TETIRO M SEMILOTA
COMMISSIONER OF THE HIGH COURT