Teata v Kiabaua [2023] KIHC 33; Civil Review 23 of 2020 (10 November 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL REVIEW 23 OF 2020

BETWEEN:
MWEMWNTARAWA TEATA
KAMWEMWETAAKE TEEATA
MEREAANA TEEATA
KINIBURA TEEATA
Applicants

AND:
BEIA KIABAUA (ADMINISTRATOR OF ESTATE OF KIABAUA TITAU
1^st Respondent

AND
MEERI TAUNAIA
2^ND Respondent

Date of Hearing: 2 NOVEMBER 2023
Date of Judgment: 10 NOVEMBER 2023

Appearances: Ms Taaira Timeon for the Applicants
Ms. Marewe Babera for 1^st Respondent (not present)
Mr. Banuera Berina for the 2^nd 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 Biklan 917/09 dated 9 September 2009. In Biklan 917/09, the first respondent sold the land Takeria 677i/2 to the second respondent.
   
2. The applicants claimed they owned the whole of the land, Takeria 677i, meaning the plot, Takeria 677i/2, that was sold to the second respondent is also included. They did not know of the Biklan 917/09 proceedings until June 2020. They filed their case for an order of certiorari in August 2020.
   
3. It is important to note that Counsel for the first respondent was not present at the hearing; however, both the applicants and second respondent agreed that the case could be heard without the first respondent's representation as his interest would not be affected. The first respondent sold the land to the second respondent, so whatever the outcome of this case is, it will only affect the applicants and the second respondent.
   

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. The second respondent only makes submissions on the strength of the applicant’s case. They argued that the applicants did not own Takeria 677i/2. They did not have the evidence to support their ownership. CN 194/77, which they relied on, was only about the approval of the lease. There was nowhere in that case that mentioned that the applicants owned Takeria 677i/2.
   
6. It is also the second respondent's position that CN 168/99, another case that the applicants relied on, is not about the land Takeria 677i; it is about Takeria 677i/1, a different portion from the plot sold to the second respondent, Takeria 677i/2. In that case, the applicant’s father won, so there is no dispute that he owned Takeria 677i/1. During his lifetime, their father did not claim ownership over Takeria 677i/2.
   
7. After perusing the court minutes raised by the applicants, CN 69/65 mentioned that Takeria 677i was to be registered under Teruru Borere. However, their ownership linkages to Takeria 677i break from there. The cases following CN 69/65 only talked about Takeria 677i/1. For example, the case in 1977, CN 194/77, was about the exchange of the lands and the lease approval. The applicants argued that the transfer concerned their land, Takeria 677i, but the minutes did not mention any name of the land. Next, there was CN 168/99, which was the application by the respondent’s elder, Kiabaua Titau and another person about their dissatisfaction with this exchange. This case specifically stated that it concerned the land Takeria 677i/1, as stated in the minutes. Their application was dismissed, meaning that the exchange of lands remains. Therefore, from the decision of CN 168/99, we can assume that the exchange done in CN 194/77 concerned the land Takeria 677i/1. Then, in 2008, another relevant case was heard: CN 55/08. This case was about the registration of the applicants after their late father, Teata Nauto, over his land, Takeria 677i/1. This registration was approved. All along, in the applicants’ submission, the proceedings of all the above cases were about Takeria 677i, which is incorrect.
   
8. From the development of the cases shown above, the only history it purported to show is the applicants’ ownership over Takeria 677i/1. The applicants’ ownership over Takeria 677i/2 was not established anywhere in those cases. Therefore, the applicants had failed to prove the strength of their case.
   

Conclusion:

9. 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 not allowed.
   2. Cost is awarded to the second respondent, to be taxed if not agreed.
      

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice