Tabokai v Quadina [2019] KIHC 67; Miscellaneous Application 98 of 2017 (9 July 2019)

IN THE HIGH COURT OF KIRIBATI 2019

MISCELLANEOUS APPLICATION NO. 98 OF 2017
(ARISING FROM HIGH COURT LAND APPEAL NO. 69 OF 2016)

[BWEBWETAAKE TABOKAI ET APPLICANTS
[
BETWEEN [AND
[
[CHRISTOPHER QUADINA ET AL RESPONDENTS

Before: The Hon Chief Justice Sir John Muria

4 March 2019

Mr Tabibiri Tentau for Applicants
Ms Batitea Tekanito for Respondents

JUDGMENT

Muria, CJ: This is an application for extension of time to apply to restore the applicants’ appeal to the list. If granted, the applicants also seek to have that appeal restored to the list. In support of the application, the applicants rely on the affidavits of Utimawa Koreaua and the Office Clerk, Iotua Tiinga, in
Tabibiri Tentau Esquire Lawyers. Both affidavits sought to explain the reasons for the applicants’ non-attendance at the hearing of the appellants’ appeal on
24 August 2017.

Brief background

2. The dispute between the parties in this case arose out of Land case over the land Maikuiaki 782a in CN Biklan 787/15. In that case, the Magistrates’ Court decided on 4 October 2016 that the applicants be evicted from the respondent’s land Maikuiaki 782a. The applicants had filed their appeal HCLA 69/16 against the Magistrates’ Court’s decision.

3. On 21 June 2017 the applicants sought and were granted a stay of execution of the eviction order issued by the Magistrates’ Court on
4 October 2016 pending appeal. The appeal was listed for hearing at the
July 2017 sitting of the High Court Land Appeal hearing.

4. The appeal was not heard on 24 July 2017 because the applicant filed another application for stay. The application was the same as the one already dealt with on 21 June 2017. The appeal was again adjourned to 24 August 2017.

5. Notices of hearing for 24 August 2017 were served on both parties. The affidavit of service on both Counsel was sworn to by Shirley Titabu on
14 August 2017. On 24 August 2017 the case was called. Counsel for the respondent was present in Court. Counsel for the appellant/applicant was in Court but for unexplained reasons, he left the Court and did not return. As expected, Counsel for the respondent applied to have the appeal struck out.

6. The Court was satisfied that at the July sitting of the Court, both parties were told in Court that the appeal was adjourned to the August sitting of the Court. The August sitting of the Court was fixed for 24 August 2017, notices of which were served on both parties through their Counsel.

7. When the case was called in Court on 24 August 2017, the respondent and his Counsel were present. The appellants and their Counsel were not present, although Counsel for the appellants was present in Court a little earlier, but left the Court without explanation just before the case was called.

8. The Court accepted the application by Counsel for the respondent and struck out the applicants/appellants appeal on 24 August 2017 with costs of $200.00 to be paid by the appellants to the respondent. The Court, however, gave the appellants liberty to apply within 30 days.

9. It was not until 2 November 2017 that the applicants/appellants brought another application by way of Notice of Motion to the Court again. As the 30 days granted by the Court lapsed the applicants applied for extension of time to apply to restore their appeal to the list. In the same application the applicants again sought a stay of execution of eviction order made by the Magistrates’ Court in Biklan 787/15 pending the hearing of the relisting application. The application was heard by the Commissioner of the High Court on 24 November 2017 granting a further stay of the execution of the Magistrates’ Court’s eviction order.

10. The application for extension of time to apply for restoration of the appeal to the list is now before this Court. The Court is also asked to restore the appeal to the list if extension of time is granted.

11. Leave to apply out of time is always at the discretion of the Court to grant or not to grant. The 30 days to apply was given to the applicants on
24 August 2017. The application to restore the appeal to the list was filed on
2 November 2017 which was just a little over two months. I do not think any real prejudice will be caused to the respondent if leave is given to the applicants to apply out of time to restore the appeal to the List. Leave to apply out of time is granted.

12. I now turn to the argument as to whether the appeal itself should be restored to the List. In support of their application to restore the appeal, the applicants relied on the affidavit of Utimawa Koreaua filed on 2 November 2017 and the affidavit of Iotua Tiinga a legal assistant in Counsel’s law firm.

13. According to Koreaua’s affidavit, the reason for failure to attend the hearing on 24 August 2017 was due to lack of service of the notice of hearing on them personally. According to Iotua Tiinga’s affidavit, the reason for Counsel’s non-attendance was the lack of personal service of the notice of hearing on Counsel’s Office. Both Utimawa Koreaua and Iotua Tiinga appear to put the blame on the Court for not notifying Counsel and applicants of the hearing of
24 August 2017.

14. The kindest thing that can be said to the deponents of the two affidavits just referred to, is that they were brave to defy the sworn affidavit of
Shirley Titabu from the Court Registry, who swore that she served the applicants through service on Counsel through Counsel’s Pigeon Hole at the High Court Registry. Shirley Titabu also swore an affidavit of service of the Notice of Hearing on the respondents through Counsel through Counsel’s Pigeon Hole at the High Court Registry. I am satisfied that both parties were duly served with the Notice of Hearing for 24 August 2017. I do not accept the suggestion of lack of service of notice of hearing on the applicants or their Counsel.

15. On 24 July 2017 both parties were present in Court together with their Counsel. At that hearing that adjourned the case and advised the parties in open Court that the applicants’ appeal was to be adjourned and listed for the “next hearing” of the High Court Land Appeal Panel which was in August 2017. The Notice of hearing was then issued and sent out to parties for the next High Court Land Appeal hearing on 24 August 2017. The parties and their Counsel whose appeals were listed for 24 August 2017 attended Court on that date. Both Counsel for the parties in this case also attended Court. It was shortly before the cases were called that Counsel for the applicants left the Court room and never returned. No explanation was given to the Court or to Counsel for the respondent for Counsel’s absence from the Court room, and indeed throughout the sitting of the Court that day.

16. As a matter of courtesy, a written explanation for Counsel’s absence, especially for leaving the Court room, knowing that Counsel had a matter in Court on 24 August 2017, was expected. No such written explanation was forthcoming from Counsel.

17. I find the reasons now given for the non-attendance of the hearing on
24 August 2017 by the applicants and their Counsel not acceptable. The explanations lack truth and sincerity.

18. There is a further consideration to take note of in this case. The applicants’ appeal is against an eviction order. The ownership issue over the said land Maikuiaki was decided in 1975 in CN 62/75. That remains unchallenged. The respondents were and still are the rightful owners of the said land
Maikuiaki 782a.

19. Then in 1996, in CN 6/96 the respondents brought eviction proceedings against the applicants. The Court ordered the applicants to be evicted from the respondent’s land. The decision of the Court in CN 6/96 remains unchallenged. Following the eviction order in CN 6/96, the applicants were told to look for a place to settle elsewhere at the lagoon side. The applicants did not leave the land. Clearly the applicants’ act of remaining on the land after being ordered to leave the land is an act of trespass. As the learned Single Magistrate rightly pointed out, if there was any arrangement for the applicants to reside on the land prior to 1996, such arrangement came to an end in 1996 following the eviction order being issued against the applicants.

20. The present case now under dispute Biklan 787/15 is another eviction case again brought against the applicants. An order is again issued ordering the applicants to be evicted from the land.

21. On the facts of the present case, the chance of the applicants successfully challenging the eviction order made in Case Biklan 787/15 is very slim indeed. As such restoring the applicants’ appeal to the List would be a fruitless exercise. As such the application to have the appeal which was struck out on 24 August 2017 restored is dismissed.

ORDER

22. 1. Leave to apply out of time granted.
2. Application to restore Appeal which was struck out on
24 August 2017 to the list is dismissed.

3. Costs to the respondents to be taxed if not agreed.

Dated the 9^th day of July 2019

SIR JOHN MURIA
Chief Justice