Wilder v Kabiriera [2019] KIHC 127; Miscellaneous Application 85 of 2019 (6 December 2019)

IN THE HIGH COURT OF KIRIBATI 2019

MISCELLANEOUS APPLICATION NO 85 OF 2019
(ARISING FROM HIGH COURT LAND APPEAL NO. 26 OF 2019)

[NEI TAUA WILDER APPLICANT
[
BETWEEN [AND
[
[TIIMAN KABIRIERA
[MOOTE KABIRIERA RESPONDENTS

Before: The Hon Chief Justice Sir John Muria

2 December 2019

Mr Banuera Berina for Applicant
Ms Kiata Kabure for Respondents

JUDGMENT

Muria, CJ: This is an application for extension of time to appeal against the decision of the Magistrates’ Court given in August 2018, in Case No. BD 99/16. The application is opposed by the respondents.

Brief background

2. The dispute in this application is about land, although it is not stated to be over land and which land is affected in this application. Even, the affidavit in support, makes no mention which land is the subject of dispute in this application.

3. Both the Notice of Motion and supporting affidavit and the affidavit in reply, only mentioned the boundary determination conducted by the other. I shall therefore deal with this application on the basis of the issues raised in the grounds of the application.

Grounds of application

4. There are four grounds of the application, namely:

1. The Applicant and her lawyer did arrive at the place where the boundary determination was to take place but left after the Single Magistrate did not come on time and as such the proceedings were conducted in her absence and judgment was also given without the knowledge of the Applicant.
   
2. The Applicant had just become aware that judgment had been delivered in January 2019 from the Lands Office after she was advised of the same by the surveyor who attended the hearing and it took the Applicant some months to finally come up with most of the minutes.
   
3. Although the delay seems inordinate, the Respondents had not done anything to have the decision enforced and as such the Respondents would not be unduly prejudiced should this court grant the application. There is merit in the appeal.
   
4. Appearing in the affidavit of May Wilder sworn and filed herein”.
   
5. The Courts have laid down the principles to be applied in an application of this nature. The authority in Kiribati is Batee –v- Trustee for Jehova’s Witness Church [2006] KICA 17; Land Appeal 05 of 2005 (26 July 2006) where the Court states as follows:
   

“As these and other authorities make clear, leave will not normally be granted unless the applicant shows (i) an acceptable explanation for the delay, and (ii) that in all the circumstances it would be fair and equitable to extend time. Significant questions in approaching the exercise of the discretion will be the magnitude of the delay, the reasons for it, and prejudice suffered in consequence, and the strength of the appellant’s case. In the end, however, there is an overriding requirement to do what is just”.

6. The explanation for the delay in bringing the appeal to the Court is said due to being unaware of the decision of the Magistrates’ Court. On
   8 August 2018, the applicant and respondents attended the boundary determination hearing. The Magistrate did not turn up. Both parties began leaving the site, when the Single Magistrate turned up at the site and conducted the boundary determination hearing. According to the affidavit evidence from Boutaake Kabiriera, the applicants left the site and did not return. The respondents returned to the site and attended the hearing. As a result the applicants were not aware of the decision. However, I find it unconvincing that having actively participated in the litigation over the land in question, that the applicant would not be interested in following up the case having missed the boundary hearing.
   

7. This is not a case where the applicant was not aware of the proceedings. Rather this is a case where the applicant knew of the proceedings but not the decision of the Court. I do not think it is reasonable for the applicants not to take any interest in the outcome of the case and take steps to follow up the matter. I am not convinced that the applicant has a reasonable explanation for the delay in this case.

8. In the circumstances of this case, a delay of about 10 months by the applicant to do something about the decision is, in my view, substantial. As I have said earlier, this is not a case of a party who was not actively involved in the case. The applicant knew about the case, took part in the proceedings except for the conclusion of the case. A delay of almost a year must be regarded as substantial.

9. The applicant argued that no prejudice would be caused to the respondents if extension of time is granted. This, it is said, is because the respondents have not yet taken any steps to enforce the decision of the Magistrates’ Court. The lack of prompt action by the respondents to enforce the Court’s decision may be a weakness on the part of the respondents, but that cannot strengthen the applicant’s case by providing her with a justification for the delay. The applicant must succeed on the strength of her own case, not on the weakness of her opponent’s position.

10. The case of Batee –v- Trustee for Jehova’s Witness Church also points out that the other factor which the Court should consider when exercising its discretion is the strength of the appellant’s case. This in my view will include considering whether the applicant has an arguable case. In this regard, the applicant’s grounds of her appeal raise a significant point alleging that the decision of the Magistrates’ Court is contrary to the decision of the same Court in a previous case. If this allegation is true, then it is clearly an error of law. There is an arguable issue to be determined. The veracity of that allegation will be tested only when the appeal is heard. It is on this point that I feel the scale tips in favour of granting an extension of time despite the delay.

11. The delay in applying for extension of time to appeal is entirely of the applicant’s own making. As such I feel Ms Kabure’s contention must be accepted, that if extension of time is granted, the applicant must bear the costs of it.

12. For the reasons stated in paragraph 10 above, the Court will exercise its discretion in favour of granting an extension to appeal to the applicant. However the applicant must pay the costs of this application.

13. ORDER: 1. Application granted. Applicant is granted extension of time to appeal.

2. Applicant is to pay the respondents’ costs of this application, to be taxed if not agreed.

Dated the 6^th day of December 2019

SIR JOHN MURIA
Chief Justice