Nanginteiti v Kaio [2023] KIHC 41; Civil Case 10 of 2023 (17 November 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 10 OF 2023

BETWEEN:
NENEBATI NANGINTEITI
TEUNAIA MIKAERE
Applicants

AND:
MANGARITA KAIO
KAAKOA TEMWARE
Respondents

Date of Hearing: 8 NOVEMBER 2023
Date of Judgment: 17 NOVEMBER 2023

Appearances: Ms Botika Maitinnara for the Applicant
Ms. Marewenimakin Babera 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 Betlan 05/14.
   
2. Betlan 05/14 concerns the confirmation of the adoption done in 2009 of a child, namely Kaio Nauarai, by the late Rouea Burebure and Mangarita Kaio, the first-named respondent. Rouea Burebure was a brother of the applicants, Nenebati Nanginteiti and Teunaia Mikaere, through their adoption by their adoptive father, Teabike Temare, in CN 868/09.
   
3. In 2020, Nenebati and Teunaia applied to de-register their late adoptive father, Teabike Temare. Their application was granted in Bailan 235/20, so both got registered over Teabike Temare's estate. Rouea died in 2013 before this de-registration case. The applicants believed he died issueless, as shown in his death certificate, so he was not registered with them.
   
4. When Mangarita, the widow of Rouea, became aware of the de-registration case, she applied for a stay in MA 234/21 on behalf of her son, the second-named respondent. During the proceedings of MA 234/21, Mangarita disclosed the adoption minutes of Betlan 05/14 to the court and the applicants. She contested that her late husband, Rouea, died issueless as they had adopted a son sometime in 2009, whose adoption was confirmed in 2014 in case number Betlan 05/14 when the 2009 minutes could not be found.
   
5. Upon realising this case, Betlan 05/14, the applicants filed their application for leave to extend time to apply for an order of certiorari on 20 February 2023 to quash the decision. Their application was supported with an affidavit of Teunaia Mikaere dated 16 February 2023.
   

Extension of Time: Principles to follow;

6. 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:

7. 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.
   
8. The application was filed almost seven years late. However, the applicants argued that they only became aware of Betlan 05/14 at the end of last year when the respondent disclosed it during the stay proceeding. The respondent did not make an issue regarding the delay of seven years; instead, through Counsel, they pointed out that the applicants should have filed their case in 2021 when the application for a Stay was filed. I agree with the applicants that they did not sleep on their rights; they filed their case in February 2023 after becoming aware of Betlan 05/14 in December last year. The stay proceedings started in 2021 and continued to December 2022.
   
9. Regarding the strength of the applicant’s application for an order of certiorari, the applicant submitted two critical points. First, there was never an adoption case done in 2009 because there was no record of it with the court. The respondent failed to produce the minutes or the adoption order and could not provide the registration record of this case in the land register. Second, if it were true that there was an adoption in 2009, then the respondents should have been invited to the hearing to give their consent pursuant to section 9 of the Native Lands Code. This argument also applies to the 2014 case when they confirmed the 2009 adoption. The respondent also raised important points against the above argument. This certainly shows that there is a critical issue to be properly considered at the hearing of the substantive matter.
   

Conclusion:

10. 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 case shall be listed for mention on 21 November 2023 to fix the hearing date of the substantive application.
       

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice