Bureka v Quantick [2023] KIHC 17; Civil Case 86 of 2020 (18 August 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 86 OF 2020

BETWEEN:
BEN BUREKA MTMM
Applicant

AND:
KERVIN JOHN LEPAGE QUANTICK
STEVEN JOHN LEPAGE QUANTICK
SARAH TEKAATA
Respondents

Date of Hearing: 1 AUGUST 2023
Date of Judgment: 18 AUGUST 2023

Appearances: Mr. Mantaia Kaongotao for the Applicant
Ms. Batitea Tekanito for the 1^st Respondent
Ms. Kiata Kabure for the 2^nd Respondent

JUDGMENT

Introduction:

1. The applicants applied on 03 November 2020 to seek leave for an extension of time and leave to apply for an order of certiorari under Order 61 of the High Court (Civil Procedure) Rules 1964.
   
2. The application for certiorari is against the two decisions of the magistrate court in CN 624/18 and CN 379/20 concerning the land Tebue 753o/1. The former case concerns the first respondent's registration over the land after their mother. The latter case involves the registration of the second respondent over this same land after the first respondent under a sale of land agreement.
   

Brief fact:

3. The applicants and first respondents are first cousins from their mothers. The applicants lived with the first respondent’s mother, Moriin Jack, in her house on the land in dispute, Tebue 753o/1, during her lifetime and continued to occupy the place after she died in 1992.
4. All that time, the first respondents lived outside Kiribati. In 2018, the first respondents registered their names over the land after their mother. In 2020, they sold this land to the second respondent for $90,000. In November 2020, the applicants filed this application against the first and second respondents, claiming that the first respondent’s mother gave them the land during her lifetime.
   

Applicable Law:

5. Order 61 r2,3 and 5 of the High Court (Civil Procedure) Rules 1964
   

Case Authorities:

6. a) Matou Tabora v Tokaruru Uruatarawa and Dr Tetaua Taitai [2009] KIHC 9

2. Batee v Trustee for Jehovah's Witness Church [ 2006] KICA 17; Land Appeal 05 of 2005 (26 July 2006)

100. Tebeia v Aviu [2008] KICA 5

4. Uriam v Uriam [2006] KICA5
   

Extension of Time: Principles to follow;

7. The principles to consider whether or not to extend time is laid out in the leading case of Batee v Trustee for Jehova’s Witness Church. Paragraph 16 of the judgment is quoted below;
   

“16. 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 discretion will be the magnitude of the delay, the reasons for it, any 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.”

The magnitude of the delay and reasons for it:

8. Order 61, rule 3 of the High Court Civil Procedure Rules deals with the application for leave to apply for an order of certiorari to be made within six months of the date of the judgments in dispute. Order 61 rule 5 allows the court to extend the time to apply for such an application. Therefore, the application was filed nearly two years late regarding CN 624/18 and a few months late for the second judgment, CN 379/20.
   
9. The delay, as deposed in the applicant’s affidavit, is the lack of knowledge of the applicants of the two cases. They became aware of these judgments when the second respondent’s lawyer served them an eviction letter in 2020.
   
10. The respondents argue that the applicants had plenty of time to register themselves after Moriin Jack died in 1992. It took them almost twenty years to claim their interest in the land. Since they have lived in South Tarawa, the applicants could not claim not knowing about the two registration cases, CN 624/18 and CN 379/20.
    
11. Kevin Quantick, the first respondent, also provides evidence that Aata Bureka, one of the applicants as the brother of Ben Bureka, acknowledged the first respondent's ownership over the land when he emailed Kevin Quantick about the property and showed his preparedness to develop the land for them. This was in April 2019. Yet, the applicants should have taken immediate proceedings after that email. They waited another year, but by then, the said land and property had been sold to a third person, the second respondent.
    
12. In this case, a delay of two years for CN 628/18 and a few months for CN 379/20 are considered substantial, especially since the land in dispute had been sold to a third party.
    

Prejudice suffered:

13. Counsel for the applicants submits that they would be prejudiced if their extension of time was not granted as they had made many developments to the land, including building a seawall, planting trees, and clearing the land. However, none of these facts were stated in the applicant’s affidavit. Therefore, there is no evidence to support their lawyer’s submission.
    
14. The second respondent deposed that she would be prejudiced if the applicant’s extension of time were granted as she had paid much money ($90,000) to the first respondents as the price of the land. Yet, this case prevents her from moving on and developing the land.
    

Strength of the case:

15. The basis of the applicant’s case is their interest in the land as landowners when they received a licence to occupy the land from the first respondents’ mother, Moriin Jack, see paragraph 16 of the applicant’s affidavit.
    
16. The problem with this argument is that the licence to occupy the land is permission received from the landowner to occupy the land, which ends when the landowner cancels the permission. See the case of Tebeia v Aviu [2008] KICA 3.
    
17. The respondents rightly stated that this licence ended when the first respondent sold this land to the second respondent, who asked them to leave the land.
    
18. There is also a contradicting submission by the applicants, through their Counsel, that their mother owned the land after the first respondents' mother in 1978. They seemed to find out this from the minutes of a boundary determination case of BD 17/99 when their late mother stated before the magistrate court that she owned the land in 1978 after her sister, Moriin Jack. Moriin Jack, the first respondent’s mother, had passed away when BD 17/99 was conducted, and the applicant’s mother attended the proceedings. There are two problems with this claim; until now, they still could not find the court minutes to support this, and the land was still registered under the first respondent’s mother in 2018 when CN 628/18 was heard and finalised.
    
19. The applicants’ submission that it was the will of the first respondents’ mother to give them the land when they nursed her; therefore, the land must be treated as a wet nursing gift; such argument must fail as it could only be categorised as a licence to occupy.’
    
20. The first respondent deposed that he did not know that their late mother, Moriin Jack, had given the appellants permission to reside on the land for good or, let alone to own it as a gift for taking care of her. Also, the applicants did nothing to claim their interest in the land since Moriin Jack died in 1992 until 2020, after the land was sold.
    
21. The second respondent also deposed that she knew nothing about the appellants' claim or interest in the land as at the time she purchased the land from the first respondent in 2020, she had done a thorough check of the titles over the land and found that it only belonged to the first respondents, hence her claim is protected as a bona fide purchaser, see Uriam v Uriam [2006] KICA 5.
    
22. What the applicants are claiming in paragraph 19 above is their interest in the land received as ‘A Gift for Nursing’ as opposed to ‘Wet Nursing.’ To argue for the existence of a Gift for Nursing, one must satisfy that there is a will that the court has confirmed OR if there is no will, there is evidence to prove that the deceased was prevented from making one OR he was incapable of making it, see 5(i) of the Native Lands Code. Nothing in the applicant’s affidavit or Counsel’s submission would prove the above requirement. Therefore, what they have is only a licence to occupy.
    

Conclusion:

23. In light of the above reasons, this Court makes the following decision;

1. The application for leave to extend time is dismissed.
2. The first respondent does not seek cost.

100. Cost to the second respondent to be agreed or taxed.
     

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice