Tererei v Kataotao [2020] KIHC 24; Miscellaneous Application 72 of 2017 (9 October 2020)

IN THE HIGH COURT OF KIRIBATI 2020

MISCELLANEOUS APPLICATION NO 72 OF 2017
(ARISING FROM HIGH COURT CIVIL CASE NO. 76 OF 2016)

[KABONG TEREREI WITH FAMILY APPLICANTS
[
BETWEEN [AND
[
[OTINTA KATAOTAO
[BIREA BERETITARA
[KAUAKI IOANE RESPONDENTS

Before: The Hon Chief Justice Sir John Muria

25 February 2019

Ms Elsie Karakaua for Applicants
Ms Botika Maitinnara for Respondents

JUDGMENT

Muria, CJ: The applicants are applying for extension of time to seek leave to issue certiorari proceedings in this case. The applicants are challenging the decision of the Magistrates’ Court in Case No. BA 67/91. The applicants relied on the affidavit of Riri Buaka in support of their application.

Brief background

2. The dispute in the Magistrates’ Court in BA 67/91 was over the boundary between Kabaeka 730b and Tebunia 731a. The parties to the case were
Nei Atina Kataotao and Nei Birea Beretitara as plaintiffs and Nei Kauaki Ioane and Naruai Aretian as defendants. Naruai Aretian was not present at the hearing on 24 August 1991.

3. The hearing was brief. Both parties agreed to the boundary of their land and the Court endorsed it. The Court minutes show that the parties were present, except Naruai Aretian. The Court minutes also show that the lands concerned were Kabaeka 730b and Tebunia 731a.

4. The Court minutes show that N. Otinta Kataotao was the only person who spoke at the hearing on 24 August 2019 in Court and said:

“This is the boundary of my land, the two stones here this boundary run straight to the ocean side with the width of 19m from the lagoon side toward the ocean side. My boundary is the same with this woman.

Judgment: The erected stone is confirmed as the boundary of
Nei Birea with the length of 19m”.

Extension of time

5. The power to extend time is discretionary. The party seeking extension of time must satisfy the Court that it is fair and just to extend time in all the circumstances of the case at hand. Factors which would assist the Court in exercising its discretion include the magnitude of the delay, the reasons for the delay, any consequential prejudice likely to be suffered, and the strength of the applicants’ case: Batee –v- Trustee for Jehovah’s Witness Church [2006] KICA 17; Land Appeal 05 of 2005 (26 July 2006).

6. In the present case, there can be no doubt that the magnitude of the delay is serious. A delay of 26 years cannot be lightly brushed aside. It must count against the extension of time sought by the applicants unless there is an acceptable reason for such a magnitude of delay. The applicants must also show that despite the delay, no prejudice will be caused to the respondents if an extension of time is granted. The case of Batee –v- Trustee for Jehovah’s Witness Church (above points this out clearly. See also the case of Tabora –v- Uruatarawa & Another [2009] KICA 9; Civil Appeal 04 of 2009 (26 August 2009).

7. The case BA 67 of 1991 was dealt with by the Magistrates’ Court on
24 August 1991. The application to challenge that decision was filed on
2 August 2017, a lapse of time of almost 26 years. The reason for the delay in challenging the Magistrates’ Court’s decision is said to be the lack of knowledge of the decision of the Magistrates’ Court until 2016. The applicants also said that they did not know about the decision because they were not summonsed to attend the hearing in the Magistrates’ Court in 1991.

8. It might be so, that the applicants were not summonsed. However, when the affidavits of the applicant Kabong Tererei and Riri Buaka are considered as against the affidavits of Birea Beretitara and Obera Tiarite Kwong, the weakness in the case for the applicants stands out. The affidavit of Birea Beretitara states in paragraphs 4 to 12 as follows:

“4. Case BA 67/91 is a boundary determination case of land Kabaeka 730b which I was registered over it at that time;

5. That land was originally owned by the first respondent and I bought it from her. In order to have the sale and purchase transaction come into effect, I and the first named respondent took out proceedings to determine the boundary of that land;
   
6. Because that land runs from lagoon to ocean, we invited and summoned the adjoining lands on both sides;
   
7. The adjoining land towards Bikenibeu is Kabaeka 730n registered in the name of the third respondent and the adjoining land towards Betio is Tebunia 731a owned by
   Naruai Aretian;
   
8. I was present during the proceedings on the 4^th August 1991 when the boundary stones were erected by the lands court;
   
9. During the proceedings, Naruai Aretian was absent but one woman came carrying a baby. She told the court that she is the wife of Naaro Aretian and that Naaro Aretian died a few weeks before the proceedings;
   
10. The court proceeded with that lady whom I believe is
    Riri Buaka.
    
11. Riri Buaka was with us all along until the boundary stones were erected by the court;
    
12. I have seen the minutes of BA 67/91 and I noticed that there is no mention of Riri Buaka being present but that was what happened on the 4^th August 1991. After the court proceedings, I asked the lands surveyors to survey the land according to the minutes of BA 67/91 which they did”.
    

9. The owners of the three lands concerned, Kabaeka 730b, Kabaeka 730n and Tebunia 731a were all summonsed to attend BA 67/91. They were the parties affected by the transaction in 1991 when the land Kabaeka 730b was bought by the second respondent from the first respondent. The owner of Tebunia 731a, Naruai Aretian was summonsed but did not attend. Birea testified in her affidavit that Riri Buaka attended the hearing. Riri Buaka was the wife of Naaro Aretian (brother of Naruai Aretian). Riri Buaka was present when the boundary stones were erected by the court on 4 August 1991. Birea cannot now come to this Court and claim that she and the applicants did not know of the case BA 67/91. When she said in her affidavit that “In 1991 while we were staying on the land, we were never aware that a ‘toutia’ was conducted”, that is clearly not true. Naruai who is the registered owner of Tebunia has never raised any complaint against BA 67/91.

10. I am satisfied that the applicants knew of the boundary determination proceedings in BA 67/91. The applicants cannot now come to Court after 26 years and easily challenge the decision of the Court.

11. The affidavit of Obera Tiarite Kwong shows that she bought the land Kabaeka 730b in 2000 from the second respondent and has developed it. She stands to suffer prejudice as a consequence of disturbing a 26-year old decision of the Court.

12. The affidavit of the applicant, Kabong Tererei, appears to be disputing Naruai’s title to Tebunia 731a. That is a matter to be sorted out between the applicant and Naruai. It is certainly not an issue that concerns the respondents in this case.

13. On the evidence before the Court and on the principles set out in
Batee –v- Trustees for Jehovah’s Witness Church, Tabora –v- Uruatarawa and Kaotan –v- Junior Kum Kee [2012] KICA 5; Civil Appeal 6 of 2012 (15 August 2012), this Court cannot grant an extension of time to the applicant to apply for leave to issue certiorari proceedings against the Magistrates’ Court decision in Case
BA 67/91. The application for extension of time is dismissed.

14. The evidence contained in the two affidavits filed in support of the applicants’ case together with the two affidavits filed on behalf of the respondents clearly show that the case for the applicants for an extension of time and for leave to issue certiorari proceedings cannot conceivably succeed. It would therefore be prudent for this Court to order that the application for extension of time be dismissed and the proposed application for leave, even if extension of time to apply is granted, be also dismissed.

Dated the 9^th day of October 2020

SIR JOHN MURIA
Chief Justice