Tewanimone v Bauro [2023] KIHC 27; Civil Case 6 of 2017 (13 October 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 6 OF 2017

BETWEEN:
TERARO TEWANIMONE
Applicant

AND:
TAANGAI BAURO
Respondent

Date of Hearing: 19 SEPTEMBER 2023
Date of Judgment: 13 OCTOBER 2023

Appearances: Ms Henty Pine for the Applicant
Mr. Mantaia Kaongotao for the Respondent

JUDGMENT

Introduction:

1. This is an application to seek leave for an extension of time to apply for an order of certiorari under Order 61 of the High Court (Civil Procedure) Rules 1964 to quash the magistrate court decision in CN 25/12.
   
2. CN 25/12 is about the registration of the Issue of Mwaketa Tangko after Teibeau Tangko over the land Tabontebike 506a, claiming that Teibeau Tangko was issueless. Teibeau and Mwaketa were siblings.
   
3. The named respondent comes from the line of Mwaketa Tango. The applicant claimed that he is from the line of Teibeau Tangko, hence his interest in the said land. He was unaware of the proceeding of CN 25/12 as he was not invited.
   

Extension of Time: Principles to follow;

4. The principle 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.”

Submissions and Court Analysis:

5. 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 64 rule 5 allows the court to extend the time to apply for such an application. The application was filed almost five years late.
   
6. The delay, as deposed in the applicant’s affidavit, is caused by the applicant's lack of knowledge of CN 25/12. The applicant became aware of this case sometime in October 2016 when he went to the court clerk to file his enforcement case against the respondent concerning this land. He was informed by the court clerk that there was another case by the respondent that allowed the registration of the issues of Mwakete Tangko over this land. The respondent is one of the issues of Mwaketa Tangko as the grandchild of Mwakete.
   
7. For background information, the applicant and respondent resided on the same land, Tabontebike. In one case, CN 63/11, the respondent took out an eviction proceeding against the applicant, claiming that the land occupied by the applicant was their land, Tabontebike 506u. The applicant claimed that he resided on Tabontebike 506a, not ‘u,’ but the magistrate court allowed the eviction without determining the boundaries. The applicant appealed to the High Court in 2012, Land Appeal 41 of 2012, and the appeal was heard and allowed in September 2016, whereby the High Court set aside the eviction order in CN 63/11 and ordered a boundary determination for the plots in dispute. The applicant returned to the magistrate court in October 2016 to enforce the High Court decision when the clerk told him the respondent had been registered over this land alone.
   
8. The respondent deposed in paragraph 7 of her affidavit that the applicant should have been well aware of their registration over the land immediately after they evicted him when they mentioned their interest in the land. The respondent further submitted that they are not obliged to summon the applicant to their registration case as he is not a family member and that his stories about owning the land through his grandfather Teibeau Tangko were all lies as Teibeau was issueless.
   
9. After considering the parties’ submissions and affidavits, I find the delay reasonable. Nothing in the respondent’s evidence would prove that the applicant was aware of the proceedings of CN 25/12. The only evidence available in relation to the applicant's knowledge is that the respondent mentioned their interest in the land to the applicant after they evicted him.
   
10. In my view, paragraph 7 of the respondent’s affidavit does not support the above submission for the respondent. The content of this paragraph is merely an assumption that the applicant should know about the respondent's intention to register themselves over the land after the eviction case. I find that there is a critical issue to be considered by the High Court, which is based on the breach of natural justice, as raised by the applicant.
    
11. Prejudice by the respondent was not raised.
    

Conclusion:

12. In light of the above reasons, this Court makes the following decision;
    1. The application to extend time to apply for leave to apply for an order of certiorari is allowed.
    2. The hearing date shall be fixed for the substantive application.
       

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice