Buraitoa v Monokoa [2024] KIHC 14; Civil Review 7 of 2018 (24 May 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL REVIEW 7 OF 2018

BETWEEN:
WAINAMO BURAITOA MTMM
Applicants

AND:
TERARO MONOKOA MTMM
1^ST Respondent

AND:
MATARO TIRIBO
2^ND Respondent

Date of Hearing: 25 APRIL 2024
Date of Judgment: 24 MAY 2024

Appearances: Mr. Tabibiri Tentau for the Applicant
Mr. Banuera Berina for the First Respondent

JUDGMENT

Introduction:

1. The applicants applied for leave to issue a writ of certiorari against the decisions of the land magistrate court in CN 111/ 77 and BA 165 / 87 for the purpose of being quashed.
   
2. The two cases concern the land Temoaniwae 825K, originally owned by the second respondent, the applicant’s mother, Mataro Tiribo. The Government has also leased the land for 99 years.
   
3. In CN 111/77, the second respondent, Mataro Tiribo (applicant’s mother), transferred half of the land to the father of the first respondent. The plot is known as Temoaniwae 825k/1. The other half of the portion remains with the applicants and is known as Temoaniwae 825k/2.
   
4. In BA 165/87, the first respondent's father went to court to assert his right over his plot of land. As a result, his title was confirmed, and the applicant’s mother and children were evicted. There were several court proceedings thereafter over the same piece of land between the first respondent’s father and the applicant’s mother (second-named respondent).
   
5. Before I continue discussing the grounds for the application for an order of certiorari, I will consider the problem of delay in filing the application. The application was filed late; therefore, the applicants also applied for an extension of time. In the applicant's affidavit, paragraph 14, she explained the reason for the delay: they believed everything had been taken care of by their mother during her lifetime. She also confirmed this in her answer during the cross-examination. In the re-examination, she explained that she first learned something was wrong with the 1977 case between 2017 and 2018. That was when she filed this case.
   
6. The principles set out in the case of Batee v Trustee for Jehovah's Witness Church [2006] KICA 17; Land Appeal 05 of 2005 (26 July 2006) are applicable for extension of time applications which considered the delay and the reasons for it, the strength of the applicant’s case, and the prejudice to the respondent.
   
7. The delay is substantial, almost 40 years from 1977. Their reason does not convince me. Submissions before this court are clear that the cases started in 1977 and went on to 2018 when this case was filed. The applicant’s mother started suing the first respondent’s father to get back the land she gave them in 1977 in the case of BA 165/87, ten years after the transfer. Evidence through the affidavit of Tita Munokoa, paragraph 4, shows their father went to court to enforce the eviction decision of BA 165/87 against the applicant’s mother. The applicant’s mother tried again to take the land back without success. This was conducted in 1997 in CN 338/97, and the decision of that magistrate court led to her eviction for the second time. She did not vacate the land. Instead, in 1998, she appealed the 1987 decision in High Court Land Appeal 6 of 1998. Her appeal was struck out with liberty to re-apply within six months. She filed nothing. Then, in 2011, she filed another application to quash the decision of 1977 (the first case). Her case was registered as High Court Land Appeal 3 of 2011, in which she mentioned that her children were left in hardship because of the transfer of land done in 1977. In 2016, their appeal was struck out. Again, she was given six months to re-apply, but she never did. After this decision in 2016, the first respondent took out proceedings to evict the applicant’s mother again. The first time, it was adjourned so their mother and lawyer could prepare themselves. They did not turn up the second time, so the decision was issued against them to vacate the land within three months. Then, the applicants filed this case in 2018.
   
8. All the time when the mother tried several times to get the land back, the applicants lived with her but did not initiate their own case. They made it clear to this Court that they knew their mother had been trying to correct the land transfer but with no success. In cross-examination, the applicants, Wainamo Buraitoa, admitted knowing about CN 111/77 and BA 165/87 decisions when they were young. She also admitted to leaving everything to their mother to challenge those decisions. Therefore, I accept the first respondent’s argument that the applicants could have started their own case as soon as they knew. The delay is substantial, and no reasonable excuse has been shown.
   
9. Even if I determine the delay to be unreasonable, I am committed to thoroughly reviewing both parties' submissions concerning the four grounds supporting the application for an order of certiorari.

The Grounds

10. There are four grounds to support the application:

1. Proceedings in case number 111/77 and BA 165/87 were conducted without taking into accounts the future interest of the applicant who were only young children at the time.
2. Proceedings in case number 111/77 and BA 165/87 were conducted by the first respondents with no locus standi as the land was and is still leased by the Government.

100. Proceeding in case number 111/77 does not convey interest over the land to the first respondents except the lease money in the sum of $270 for repayment of the debt of the second respondent, Mataro Tiribo.

4. The applicants may suffer a grave breach of natural justice should that decision in case numbers 111/77 and BA 165/87 remain.
   

Submissions and Analysis

11. The applicants claimed they were very young at the time the transfer of the land was made in 1977. Wainamo Buraitoa made her affidavit in support of this application. She is now 47; she would have been about two years old in 1977 when CN 111/77 was decided. The basis of their claim is that they were not invited to the proceedings, or their interest was not considered when the land was transferred to the first respondent's father. The applicants referred to the case of Teuei v Toanikai [2015] KICA 1; Civil Appeal 01 of 2015 in support of their application.
12. As mentioned above, the applicants were only minors in 1977 when the land was transferred, so I agree with the first respondent that they could not have been heard; their parents or mother represented them then. This was also the position of the magistrate court in CN 111/77. The minutes show that the court knew the landowner had children, but they were very young, so their mother, the landowner, represented their interests.
13. Counsel for the first respondents distinguished the case above by saying that the appellant, Teuei, was already registered in the land; therefore, the courts should not proceed without inviting him. In the case at hand, the applicants are not registered landowners. The law allows landowners to sell their lands, provided the next of kin approves, and the remaining lands are sufficient for the owner and children. The children are the next of kin but were minor at that time. In this case, the magistrate court was aware of the children but noted that their mother represented their interest as minors at the time. Therefore, the children cannot complain about not being involved in 1977 as they were minors then. However, they had the opportunity to raise any concerns when they became aware of the situation, but instead, they chose to rely on their mother. It would be unfair to allow their application after 40 years; the first respondent’s title is indefeasible. Also, this kind of application would open up a floodgate of similar cases. In this case, the principles of natural justice do not apply.
14. Regarding the second ground, the Squatters (Recovery of Lands) Act was only passed in 2005. Therefore, it cannot be applied to the 1977 proceeding, CN 111/77. Consequently, any argument the applicant raises in relation to this legislation, such as locus standi and the magistrate court’s jurisdiction, is irrelevant.
15. For the third ground, the applicant claimed their mother, the second respondent, did not give half of the land to the first respondent's father. Instead, she only allowed him to collect the land rent as payments for her debts. This information was not found in the CN 111/77 minutes. The first time it was raised was in BA 165/87. It was clear from the minutes of BA 165/87 that the magistrate court adjourned the proceeding to review the minutes of CN 111/77. Later, they judged that the applicant’s mother should vacate the land. This indicates that they did not accept the applicant’s story about the first respondent’s father to receive the land rents only.
16. The court minutes of CN 111/77 are very brief and straightforward. They indicate that the second respondent appeared alone as the first respondent's father did not attend the hearing. The second respondent informed the court that she wished to give half of her land to him. However, she did not mention anything about him collecting the land rent as repayment of her debt. I believe this is why the court in BA 165/87 refused to accept their argument.
17. The fourth ground is also about natural justice. I have discussed this in the paragraphs above.

Conclusion

18. In light of the reasons stated above, the request for an extension of time is denied.
    
19. Leave to apply for an order of certiorari is also denied.
    
20. CN 111/77 and BA 165/87 cases will not be disturbed.
    
21. Cost is awarded to the first respondent, to be agreed or taxed.
    

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
CHIEF JUSTICE