Teakare v Mweretaka [2023] KIHC 16; Civil Case 19 of 2012 (27 July 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 19 OF 2012

BETWEEN:
TERENGANTAAKE TEAKARE
Applicant

AND:
TEANGAO MWERETAKA
1^ST Respondent

AND:
TARAWA BURETI
2^nd Respondent

AND:
BURETI WILLIAMS
3^rd Respondent

Date of Hearing: 28 JUNE 2023
Date of Judgment: 27 JULY 2023

Appearances: Ms. Henty Pine for the Applicant
Ms. Taoing Taoaba for the 2^nd & 3^rd Respondents
Mr. Raweita Beniata for 1^st Respondent (not present)

JUDGMENT

A brief fact of the case;

1. This is an application to extend time to apply for leave to issue an order of certiorari to quash the magistrate court’s decision in CN 03/08, delivered on 7 August 2008. The application for leave to apply for an order of certiorari was filed on 8 June 2012, which was out of time by almost four years. On 5 April 2013, the application for leave for an extension of time was filed. Another application of the exact nature was also filed on 1 November 2016.
   
2. Sometimes in 2014, the applicant, Terengataake Teakare, passed away, and Alio Betero was deposed to have been representing her estate since 2016. It was Alio Betero who requested that the application be filed for leave to apply out of time in 2016. When the case was listed for striking out for want of prosecution on 14 December 2022, Alio Betero filed an affidavit to explain why the case had been delayed and should not be struck out. The case was then approved for continuation.
   
3. This court adopts the principles set out in the case of Batee v Trustee for Jehova’s Witness Church [2006] KICA 17, Land Appeal 05 of 2005, to determine whether or not to grant the extension of time. Such principles will be discussed below in relation to the case at hand.
   

Acceptable reason for the delay;

4. The application was delayed due to the applicant’s lack of knowledge of the judgment of CN 03/08. Counsel for the applicant submitted that the applicant was not present during the hearing as she was outside the courtroom and did not authorise paralegal Tekaobo to represent her.
   
5. The respondent argued that the applicant could not claim that she did not know of the hearing or the decision as, although she was outside the courtroom, a paralegal represented her during the hearing. The hearing was held more than once, and on all occasions, the minutes showed that the applicant was present through her paralegal.
   
6. After considering the minutes of CN 03/08, I agree with the respondent that the applicant was deemed present through her paralegal. There were two times the matter was heard; the first was on 7 August 2008, and the second on 15 November 2011, and both occasions, the magistrate court noted the presence of both parties. Therefore, even if the applicant claimed she was outside the courtroom when the case was heard, her paralegal’s presence at the hearings was enough. Also, when the magistrate court heard the case on both occasions, the applicant did not stop the paralegal from representing her.
   
7. For the above reasons, the applicant could not claim not knowing about the hearing and decision of CN 03/08; therefore, the delay is unacceptable.
   

Strength of the applicant’s case;

8. The applicant’s main arguments to support her application for an order of certiorari are as follows; her right to attend the hearing is denied hence a breach of natural justice, and the decision was inconsistent with CN 229/98 as it purported to give the whole land to the respondent instead of a house plot to build on.
   
9. For the first argument that she did not attend the hearing, I have discussed above that the applicant was represented by her paralegal throughout the hearings, therefore, this is a weak argument.
   
10. As for the second point regarding the inconsistency of decisions between CN 03/08 and CN 229/98, the applicant stated that the magistrate court in CN 03/08 has no jurisdiction to review the decision of another court of the same jurisdiction, CN 229/98, and issued a different decision. Kauongo v Ria [2001] KICA 2 is cited to support this point.
    
11. I cannot entirely agree with this argument, as the minutes of CN 03/08 show that the case was not about the review of CN 229/98. In fact, CN 03/08 was about confirming the land sale agreement done in CN 229/98 in terms of fixing the boundaries of the respondent’s land. The case was also about ensuring the agreement that the applicant should continue receiving the lease money during her lifetime and that the respondent will receive it after the applicant dies.
    
12. Further, the applicant was the one who initiated CN 03/08. The applicant was the plaintiff in CN 03/08, and the applicant pointed out the boundary of the respondent’s plot of land on-site through her representative.
    
13. Overall, there is no substantial case against the respondent.
    

Prejudice to the parties;

14. The applicant said she would be prejudiced if her application for an extension of time was not granted as the decision of CN 03/08 gave the right to the respondent over the whole land instead of a house plot. The respondent submitted that there is no prejudice to the applicant as the applicant herself pointed out the boundaries.
    
15. Regardless of whether or not the applicant would be prejudiced, the ground on which she supported her application for an extension of time and judicial review, that she did not attend the hearings of CN 03/08, cannot succeed because a paralegal represented her.
    

Summary;

16. For all the reasons stated above, the application for an extension of time is not granted.
    
17. Cost to the respondent to be agreed or taxed.
    

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice