Atanimatang v Moutu [2025] KIHC 34; Miscellaneous Application 01377 of 2025 (25 June 2025)

IN THE HIGH COURT OF KIRIBATI

MISCELLANEOUS APPLICATION 2025-01377 arising out of

High Court Land Appeal No 39 of 2017

BETWEEN: Tekaue Atanimatang
Appellants

AND: Bureimoa Moutu

Respondents

Date of Hearing: 12 June 2025
Date of Judgment: 25 June 2025

Appearances: Banuera Berina for the Appellants
Tabibiri Tentau for the Respondents

JUDGMENT- LEAVE TO APPEAL OUT OF TIME TO COA

INTRODUCTION

1. This is an application to the High Court for an order granting the applicant leave to appeal out of time, enabling her to pursue an appeal in the Kiribati Court of Appeal.
   
2. The applicant’s case arose from Betlan 44 of 2017, where she lost in a fraud case.
   
3. Aggrieved by the decision, she took the matter to the High Court and lost her appeal, and the Magistrate Court decision was reaffirmed.

Grounds for the application

4. According to the applicant, the delay in filing on time stems from the manner and timing of the decision's delivery.

> It was not delivered in court

> Land Appeal Magistrates had not signed judgments

>Just received judgment on 14^th August 2023

Grounds of appeal to the Court of Appeal

6. The ex parte nature of the proceedings in 44 of 2017 was never presented in the Land Court or the High Court as evidence of fraud, nor was it addressed in either court.

7. Even if Betlan 44/2017 was conducted ex parte, no evidence was presented to the Land Court in Betlan 44 of 2017 to establish fraud by the paralegal or the individual she represented during those proceedings. In fact, the High Court did not specify what fraud occurred in the Betlan 44 of 2017 proceedings, apart from the fact that it was conducted ex parte. As such, “final orders made on ex parte basis carry a substantial risk of causing a miscarriage of justice.”

8. The High Court erred in law in its construction of the decision in CN 70/1959, holding that in that case, the land Teabanimate must remain undisturbed, despite the decision indicating that Temone was the owner of the land, free of encumbrances.

9. The High Court erred in law by reversing the decision of the Lands Court in 70/59 when ordering the registration of Tekabu Tatonga over Teabanimate.

8. THE LAW on application for extension of time

Rule 16(b) provides that an appeal must be filed within six weeks of the date of the judgment.

The application was late by 12 weeks, so she filed a notice of motion supported by an affidavit that outlined the reasons for the delay.

The High Court judgment was received on August 14, 2023, and the appeal was filed in the Court of Appeal on September 18, 2023, after all necessary fees had been paid and the documents had been stamped.

9. Submission

Applicant counsel argued that the delay in timely filing was due to the judgment not being delivered in court, which they only received on August 14, 2023.

Counsel for the respondent submitted that the delay of 12 weeks or three months in filing was unacceptable and unconvincing. He further submitted that the Applicant's representative, Tibora Tekabu, lacks locus standi as she has not been appointed as the administratrix of the applicant's estate. The applicant's counsel did not respond to this.

10. Analysis and decision

Having reviewed the application, the issue of locus standi is irrelevant to this application for leave, as the deponent in question is not a named party; her evidence regarding the delay of their filing is accepted.

Although the application to appeal out of time was filed three months late, it was well-supported by an affidavit, as required under Rule 16(b). The delay is excusable, considering that the judgment was not delivered in court and was just received by the applicant on August 14, 2023.

This Appeal raises legal issues that need proper determination by the Court of Appeal.

10. Conclusion and Orders

The application for leave is granted. Parties to bear their own cost.

THE HON. TEITIRO SEMILOTA MAATE MOANIBA
Chief Justice

TABAKITOA TEMOKOU ARIAN ARINTETAAKE
Land Appeal Magistrate Land Appeal Magistrate