Takinoa v Tearawa [2024] KIHC 40; Civil Case 8 of 2023 (25 November 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 8 of 2023

BETWEEN: MATAIO TAKINOA MTMM

Applicant

AND: KATUROROA TEARAWA MTMM

TEARABWEBWE TABOKAI

Respondent

Date of hearing: 20 November 2024

Date of Judgment: 25 November 2024

Appearances: Mrs. Kiata Ariera for the Applicant

Ms Batitea Tekanito for the 1^st Respondent

Ms Taoing Taoaba for the 2^nd Respondent

J U D G M E N T

Introduction

1. This is an application for an extension of time to bring certiorari application and for an order of certiorari against the decisions of the North Tarawa Nonouti Magistrate Court in CN 317/2012 delivered on 16 March 2012 and CN 15/2012 dated 13 March 2012.
   
2. CN 317/2012 and CN 15/2012 concerned the registration of the 2nd Respondent among the applicants' mothers and aunties over their lands. When they learned about this registration, the applicants filed an application on 02 February 2023 to have it quashed. The application was filed 12 years late
   

Extension of Time Principle

3. The case of Batee v Trustee for Jehovas Witness Church [2006] KICA 17, Land Appeal 5 of 2005 is applicable, and paragraph 16 of its judgment is quoted below;

“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 and any prejudice in consequence, and the strength of the appellant’s case. In the end, however, there is an overriding requirement to do what is just.”

Submission and Analysis

4. As stated above, the delay was 10 years. The reason for the delay was deposed in the Mataio Takinoa, the applicant. He deposed that they became aware of the 2^nd Respondent’s registration in late 2022 when the 2^nd Respondent boasted to them about owning all their mother's and her sisters' lands. Upon confirmation with the land register, Mataio found that this was true. Therefore, in February of the following year, 2023, they filed this application.
   
5. The second Respondent is not related to the applicants by blood. The first Respondent, the applicant's mother, said through her affidavit that the second Respondent misrepresented himself as the land commissioner and could assist them in obtaining their lands back. In order to work on their land cases, they would need to register him as a co-owner of their lands. The second Respondent also submitted undue influence and unconscionability on their part, which resulted in their agreement to the registration of the second Respondent as co-owner of their lands.
   
6. The applicant further relied on section 4 of the Native Lands Code and argued that, as children of the first Respondent, they should be invited to the registration or have their views obtained by the court as to whether they would be affected by the registration or not.
   
7. The applicant submitted that they would be prejudiced if the application was not allowed as one of their lands had been given away.
   
8. Counsel for the second Respondent brought CN 435/22 to the attention of this Court to show that the first Respondent had tried to cancel the second Respondent's registration on the ground of fraud, but the magistrate court did not grant her application after considering the registration minutes when it was clear from the minutes that the reason for the registration was to comply with the first respondent’s parent wish that since they named the second respondent, he should be registered over the lands with them. The second respondent also argued that the applicants had known about the registration for more than ten years when the second respondent moved onto the land; they never disputed it. Instead, they assisted him in building their permanent house.
   
9. After considering the above submission, I accept that the case has merit, especially when legal issues were raised, such as section 4 of the Native Lands Code, among others. The second respondent did not make any submission on the relevancy of this provision. Although the delay was substantial, the reason brought forward is reasonable. In the circumstances, this Court will allow the extension of time and give parties time to make detailed submissions on the issues raised.
   

ORDER

10. For the reasons stated above, the application for an extension of time to bring the application for certiorari is allowed.
    
11. The case is returned to PTC for parties to fix the hearing date of the substantive application.
    

THE HON. TETIRO SEMILOTA MAATE MOANIBA

CHIEF JUSTICE