Taukaro v Tenieu [2024] KIHC 54; HCLA 52 of 2014 (22 November 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT LAND APPEAL 52 of 2014

BETWEEN: ROTIA TAUKARO

Appellant

AND: TEAIWA KATEIA TENIEU

Respondent

Date of hearing: 29 October 2024

Date of Judgment: 22 November 2024

Appearances: Ms. Henty Pine for the Appellant

Mr. Raweita Beniata for the Respondent

J U D G M E N T

Introduction

1. This is an application for an extension of time to appeal against the decision of the Nonouti Magistrate Court in CN 73/13. The appeal was filed on 26 May 2014, and the court decision was released on 23 August 2013. Therefore, the appeal was filed six months late; the counting starts after three months from the date of the judgment. Even so, the amended grounds of appeal were just filed last year on 19 October 2023.
   

Extension of Time Principle

2. 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

3. As stated above, the delay was 6 months. The reason for the delay was deposed in the Appellant’s affidavit, which was her ignorance of the court procedures. The appellant claimed she verbally informed the clerk that she was unhappy with the decision. This was on the same day the judgment was announced. She did not sign any appeal papers, but she claimed she was not aware that she needed to sign any appeal papers. Nine months later, on 26 May 2014, she went back to see the court clerk and was told that her appeal had not yet been filed as she needed to sign her appeal papers and pay the appeal fee.
   
4. The strength of the case is also another factor to consider. The Appellant argued they have a strong case as the case was conducted in their absence. The Appellant did go to the boundary determination on the hearing date, but she was on the wrong side of the road while the boundary determination was conducted on the other side. She argued that the magistrate should appoint her representative when finding out that she did not attend. The magistrate court did not appoint her representative per Rule 28 of the MCO; therefore, evidence did not support the findings. This is the basis of the Appellant’s third ground of her appeal.
   
5. The grounds of appeal are as follows;
   
   • - The magistrate erred in law in proceeding with the case when the Appellant was not served with the summon,
   • - The Magistrate erred in law by failing to comply with Rule 28 of the MCO and
   • - The Magistrate erred in fact in basing their decision on findings that cannot be supported by evidence adduced before them.
     
6. The Respondent submitted that the Appellant’s main argument is in relation to Rule 28 of the Magistrate Court Ordinance. Having considered this with the Appellant’s grounds of appeal listed above, we agree with the Respondent.
   
7. The Appellant went on her land to attend the boundary determination hearing on the relevant date, 23 August 2013. The second hearing date was fixed to allow the Appellant to attend (she did not attend the first hearing). She said the court clerk informed her of this second date after the first hearing. We believe the second ground concerning the non-service of summons was defeated by the Appellant going on-site to attend the hearing even though she was waiting on the other side of the road. We also accept the Respondent’s argument that it would be impossible for her not to see all the parties and the magistrates on the other side of the road; several people were attending the boundary determination as all the other landowners were present, except her.
   
8. We also agree with the Respondent that Rule 28 is not mandatory following the case of Tekee v Kakiaba [2006] KICA 21; Land Appeal 08 of 2006. Counsel for the Respondent has been helpful in quoting relevant parts of the decision in that case as follows;
   

“13. It is true that Taberu v Redfern [2002] KICA 1; Land Appeal 2/2001 (12 August 2002) suggests that attendance or appointment under R 28 is mandatory. On the other hand, in Erimiriki v Tekabu [2003] KICA 7; Land Appeal 04/2003 (16 August 2003), it was said that the matter is discretionary.

14. To the extent that there is a conflict between Taberu on the one hand and Erimiriki on the other, we prefer the latter. Rule 28 merely provides that in the absence of a party, the Court “may” appoint a qualifying relative. “May” clearly indicates a discretion. Rule 29 requires that a party or, in his absence, his representative must be present, but this appears to deal only with the situation in which there is either an available party or an appointed representative. It does not address a situation in which the party is not present, and the Court has exercised its discretion against the appointment or a representative. In that situation, Rule 29 could have no application. To hold otherwise would mean that a party could avoid an adverse decision indefinitely by the simple expedient of ensuring that neither he nor a qualifying relative was available to attend.

15. For that reason, we accept that, in principle, the Magistrate was entitled to proceed in the absence of the appellants in this case.”

9. The Appellant quoted from the case of Reiati v Reiati [1997] KIHC 15; High Court Land Appeal 015.97 (22 May 1997) that;
   

“It can be seen that Rule 28 does not give the court an option to proceed in the absence of a party who does not obey a summon. Certainly, if the applicant does not appear, the application can be struck out. However, in the case of any other party, if the court wishes to proceed in that party’s absence, then after proof of service, the court should appoint a relative with the qualifications mentioned in Rule 28 to represent that party. Another obvious alternative, of course, is that the court can adjourn the proceedings to ensure that the party either comes to court or nominate a representative to do so.”

10. Rule 28 of the Magistrate Court Ordinance says as follows;
    

“ If an applicant fails to appear at the time and place at which he has been required to attend the court and does not excuse his failure to the satisfaction of the court, the court may strike out his application, and if any party does not obey a summons issued under paragraph 1 and does not excuse his failure to the satisfaction of the court, then after proof of service, the court may appoint a relative of such party to the proceedings as may reasonably be expected to have good knowledge of the history to the title to the land under dispute, or other matter in issue, to represent each party and may thereupon proceed to hear and determine the matter in issue.”

11. Rule 29 states as follows;
    

“In all matters before the court, the parties or their representatives or, in the case of a party who has failed to appear, his representative as appointed under Rule 28 shall be present throughout the parties being present.”

12. We agree that the appointment of a representative is not mandatory because of the use of the word “may” in Rule 28. We also concur with the Court of Appeal in the case of Tekee v Kakiaba, as quoted above, regarding their view on Rule 29. Such a Rule does not deal with the appointment of the representative in a case where the party is not present but only concerns that the parties or representative(s) if appointed, must be present throughout the proceedings.
    
13. We find ground three irrelevant to the consideration as it was based on the fact that the evidence was one-sided because the proceeding was done without the Appellant. This is the basis of the Appellant’s argument, as mentioned in paragraph 4 above. Of course, this would result from the proceeding that was conducted with one party only. Still, the court can decide based on convincing evidence from attending parties. The Appellant could not argue that because she did not attend the hearing, the evidence from the other attending party could not form the basis of the court’s decision.
    
14. The Respondent submitted that he would be prejudiced if the appeal or extension of time were allowed as he and the other co-owners had been receiving the rent after the 2013 decision, but it stopped in 2023 because of this dispute. There is no evidence of prejudice to the Appellant. Although her counsel has verbally submitted her opinions on this issue, we will not consider her submissions without evidence.
    

ORDER

15. Although the delay is not substantial, it is not the only factor for consideration. The Appellant has failed to show the strength of their case or prejudice. Therefore, the application for an extension of time is not allowed.
    
16. Cost to the Respondent to be agreed or taxed.
    

THE HON. TETIRO SEMILOTA MAATE MOANIBA

CHIEF JUSTICE

RITETI MANINRAKE TITAN TOAKAI

LAND APPEAL MAGISTRATE LAND APPEAL MAGISTRATE