Bakaa v Bwauro [2023] KIHC 31; High Court Land Review 5 of 2021 (3 November 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL REVIEW 5 OF 2021

BETWEEN:
IAONTOA BAKAA
Applicant

AND:
TAKEIETA BWAURO
NEI TENE BONTEMAN
BONTEMAN TABERA
Respondents

Date of Hearing: 24 OCTOBER 2023
Date of Judgment: 3 NOVEMBER 2023

Appearances: Mr Raweita Beniata for the Applicant
Mr. Banuera Berina for the Respondents

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 Betlan 839/19.
   
2. Betlan 839/19 is about the registration of the second and third named respondents over the share of the first respondent on the land Tebukinnantu 824e. The applicant also owns such lands.
   

Extension of Time: Principles to follow;

3. 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:

4. 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 late by fifteen months. The delay is not an issue for the respondent, but the strength of the case is.
   
5. The applicant submitted that he co-owned the land with his sister, the mother of the first respondent. They have not divided this land, therefore the first respondent should not be allowed to sell his mother’s share without his knowledge, mainly since he resided on the exact plot that was sold. He also mentioned that the Government leases the land, but he was working on getting his sublease for the spot that he lived on.
   
6. The respondents argued that no law prohibits one from selling his share of the land without a subdivision. Also, the judgment of the magistrate court in Betlan 839/19 did not state which portion of the land was sold to the second and third respondents. It merely noted that the second and third respondents are to be registered over the plot of Tebukinnatu 824e, owned by Takeieta Bauro. It was also submitted that even if the applicant co-owns the land, the Government leases that land and it is the Government that has the right to decide who resides on the land.
   
7. I agree with the respondents. There is no substantial case. The children can sell their mother’s share before the distribution. The share of the other co-owners should not be affected in size because of the sale. Although the minutes mentioned the plot intended to be sold, the decision did not. Therefore, the second and third respondents will get the share of the first respondent wherever it is on the land. The Government leases the land so no one can reside on the land, including the applicant, without the Government’s approval.
   

Conclusion:

8. In light of the above reasons, this Court makes the following decision;
   1. The application to extend time to apply for leave for an order of certiorari is not allowed.
   2. Cost to the respondent.
      

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice