Kiriati v Rotaria [2025] KIHC 111; Miscellaneous Application 53 of 2021 (28 April 2025)

IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction
(South Tarawa)

MISCELLANEOUS APPLICATION NO: 53 of 2021
(Arising out of HIGH COURT CIVIL REVIEW NO: 15 of 2021)

BETWEEN

TAURO KIRIATI _______________________________ Applicant

AND

TEMATANG ROTARIA ________________________ Respondent

Date of Hearing: 11 October 2024

Appearances: Ms Taaira Timeon the Applicant

Mr Titabu Tabane for the Respondent

RULING

AMTEN, J. – The case before me is an application for an extension of time to apply for an order of Certiorari. Mr Tabane, for the respondent, opposed the application.

The case that the applicant is complaining about is CN 30/2005 which decision was delivered in December, the 9^th of 2008. The applicant took this proceeding in September, the 2^nd of 2021.

The complaint in this case pertains to the determination of boundaries involving the applicant, the respondent, and several other landowners. The applicant contends that he was not notified about the proceedings, which ultimately impacted his property boundaries. In his defense, Mr. Tabane asserted that the applicant had been duly served but failed to appear.

After evaluating the opposing arguments regarding the application, the key matter to be resolved is whether this application meets the criteria for granting an extension of time.

The established legal principle dictates that an application for Certiorari, as well as any other prerogative orders, in the High Court must be preceded by an application for leave submitted within six months from the date of the proceedings. Should this timeframe be exceeded, a request for an extension of time must be made. These prerequisites are obligatory; without the granting of an extension, the application for leave to seek a prerogative order cannot be considered.

Chief Justice Sir John Muria had this to say after referring to O.61 r.3^[1], in the case of Toaia Tenangibo & Ors v Matou Tabora & Ors^[2]:

“The purpose of that rule is to provide a degree of certainty in Court proceedings so that parties may be able to regulate their affairs and businesses on the basis of that, if no challenge is made against the Court decision, no proceedings are likely to be allowed to be brought against that decision. Consequently, in my view, any application for Leave under Order 61, r2 on the grounds of error of law or procedural error is unlikely to succeed against a decision made more than six months”.

The burden is therefore on the applicant to satisfy the court of the delay in challenging the matter. This is well established in Marawa Eritane v Ioteba Rubeaia & Tewera Turabu^[3]. The Court said:

“The burden of showing good reason to justify extension of time after more than 10 years’ lapse, rests on the applicant. The registration complained of by the applicant was done in open court and there was no evidence to suggest that it was concealed from the applicant as she claimed. It is therefore highly unlikely that the applicant would not have known about it”.

It is important to recognize that this discretion must be wielded with care and is applicable solely in situations where the lower court's judgment reveals either a deficiency or an overreach of jurisdiction, a clear legal mistake, instances of fraud, bias, or a failure to adhere to the principles of natural justice, including the infringement of the right to be heard.^[4]

For leave to extend time, this court and the Court of Appeal have set up guidelines. In Ueaititi v Toauriri^[5], regards must be made to:

(a) the magnitude of the delay;
(b) the lack of acceptable reasons for the delay; and
(c) the prejudice respondents would face.

In Tabora v Uruatarawa^[6], the Court of Appeal added:

(a) the nature of the original invalidity which is now under challenge;
(b) the steps taken by the applicant thereafter;
(c) the extent to which the delay may be attributable to lawyers; and
(d) the extent to which innocent third parties have taken steps in reliance upon the original decision before being advised of the challenge.

In Tererei v Kataotao^[7], the party seeking such leave must also satisfy the court that:

(a) it is fair and just to extend time in all the circumstances of the case; and
(b) the strength of the applicant’s case

In Batee v Trustee for Jehova’s Witness Church^[8], the Court of Appeal stressed that leave (for extension of time) will not normally be granted unless the applicant shows:

(a) an acceptable explanation for the delay; and
(b) in all the circumstances it would be fair and equitable to extend time

In exercising the discretion, significant questions will be:

(i) the magnitude of the delay;
(ii) the reasons for it;
(iii) any prejudice suffered in consequence;
(iv) the strength of the appellant’s case
(v) an overriding requirement to do what is just.

Flowing from the above authorities, it is plain clear that the grant of leave to extend time is not a mere formality. It will not be granted as a matter of course, either.^[9]

In this instance, the particulars may seem complex; however, they become quite clear upon careful analysis. Initially, the ruling in CN 30/05 was delivered on December 9, 2008, whereas the petition for a Certiorari order was filed on September 2, 2021. This reflects a delay of about 13 years. According to the authorities, as this exceeds the permissible timeframe, the applicant bears the responsibility to explain such a delay.

In referencing Batee (supra) to explain the thirteen-year delay, the applicant's affidavit dated August 30, 2021, stated that he only learned about CN 30/05 in July the 14^th, 2021 from his counsel (Ms Timeon). He was never invited and was not even aware of the decision of CN 30/05 as he was on Tamana Island, which decision, he contended, had affected his boundary. Following his counsel's advice, he proceeded to file these proceedings.

Ms. Timeon, in her submission, reaffirmed the applicant's position and contended that he has not neglected his rights. Upon becoming aware of CN 30/05, he promptly initiated these proceedings.

In light of the applicant's assertion that he was not invited to the proceedings of CN 30/05, and therefore was not aware of it, I find it challenging to accept it. The court in CN 30/05 has exercised caution throughout the proceedings. Initially, on 20th June 2005, the applicant was named as the 6th defendant. The case was adjourned to 27 June 2005 to allow for the attendance of those who were absent that day. Upon resumption, the court had to adjourn once more to ensure the remaining parties were served, as only three had received service. On 24 March 2006, the court again adjourned the matter due to insufficient proof of service. Subsequently, on 28 July 2006, the court adjourned again for the service of the summons, at which point the applicant was identified as the 5th defendant. Finally, on 28 August 2006, after confirming proof of service, the court acknowledged that all defendants had been served with the summons and proceeded with the case despite the absence of those who had been served. The record of the proceedings therefore is contrary to what the applicant is trying to assert. I am satisfied that he was duly served on the 28 August 2006; whether he attended the proceedings or not is immaterial as far as his plaint goes.

Further, according to Marawa Eritane (supra), the applicant holds the burden of proof; to satisfy this court that he was in deed not served. As previously noted, there were numerous occasions when the case was adjourned due to the failure to serve all interested parties, one of whom is the applicant. The most recent adjournment occurred on 28 August 2006, at which point proof of service was finally provided. The court confirmed its satisfaction that all defendants had been served, with the applicant listed as the 5^th defendant. I found no contrary evidence in his affidavit or in the submissions made by his counsel. The applicant had not been able to discharge this burden.

In my view, the main dissatisfaction of the applicant is in regard to the allegedly impact of CN 30/05 on his boundary. While the issue in CN 30/05 was designated as a boundary determination, it primarily involved identifying the location of the respondent's land, Terukabane 772e/1, and its physical layout. After considering the perspectives of all relevant parties, the court established that the respondent was the original purchaser of the specified portion of Terukabane 772e, which constituted half of the entire parcel. Additionally, it was confirmed that this portion extended from the vicinity of the main road to the ocean. The section adjacent to Bairiki remained with Iabeta Ioane, whereas the side facing Banraeaba is owned by the respondent. The applicant’s contention that his boundary was affected as a result of CN 30/05 was therefore misconceived. The court did not establish any boundary; it merely upheld the ruling of CN 77/85. Conversely, there exists a boundary determination referenced in his affidavit, BD 75/19, which I have been informed is still in progress.

Based upon the aforementioned reasons, leave to extend time is refused, and the application is hereby dismissed. It follows therefore that the substantive application, HCCiv Review 15 of 2021, is also dismissed.

Order accordingly, with costs to the respondent to be taxed if not agreed.

Dated this 28^th day of April 2025.

.............................................
HON JUSTICE A. T. AMTEN

PUISNE JUDGE

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^[1] High Court (Civil Procedure) Rules, 1964
^[2] (12 April 2011) High Court Civil Case 1/2011 - unreported
^[3] (7 June 2011) High Court Civil Case No. 118/2010 - unreported
^[4] see P. Artemis Compilation "Privileged Warrants, Principles and Cases", p. 109 etc., Regarding the Application of A. Konstantinidis (2003) 1(B) A.A.D. 1298, Marewave Shipping & Trading Company Ltd (1992) 1(A) A.A.D. 116
^[5] [2019] KIHC 120; Miscellaneous Application 111 of 2019 (8 November 2019)
^[6] [2009] KICA 9; Civil Appeal 04 of 2009 (26 August 2009)
^[7] [2020] KIHC 24; Miscellaneous Application 72 of 2017 (9 October 2020)
^[8] [2006] KICA 17; Land Appeal 05 of 2005 (26 July 2006)
^[9] See above authorities