Rabaua v Kabane [2025] KIHC 47; Miscellaneous Application 51 of 2023 (31 July 2025)

IN THE HIGH COURT OF KIRIBATI
Misc. App 51 of 2023
High Court Civil Case 6 of 2023

Between: Ataata Rabaua with brothers and sisters as next of kin of Tekiaraoi Tiare
1^st Applicants

Kammari Eita with brothers and sisters as next of kin of Kammari Iuta

2^nd Applicants

AND: Tiare Kabane with brothers and sisters

1^st Respondents

Kantabu Tebikau with sisters

2^nd Respondents

Karora Rakuniti with brothers and sisters

3^rd Respondents

Date of hearing: 13 March, 24 April & 18 May 2025
Date of judgment: 31 July 2025

Appearances: Ms Taaira Timeon for the 1^st and 2^nd Applicants

Mr Banuera Berina for the 1^st Respondent

Ms Taoing Taoaba for 2^nd & 3^rd Respondent

JUDGMENT

The Case

1. This is an application to seek leave for an extension of time and to seek leave to apply for a certiorari order to have the decision of the case CN 17 of 2017 quashed since the applicants have an interest in the land but were not invited to the proceeding and they have been unjustly affected by this decision.
   
2. This application is supported by the affidavit of Ataata Rabaua. She explained their relationship with the parties as follows: her siblings and she, as the first applicants, sued the respondents for the estate of their mother, Tekiaraoi Tiare. The first named respondents are their first cousins because their mothers are sisters, Tekiaraoi Tiare and Watai Tiare. The second named applicants are their second cousins, as their grandfather is Itua Tewae, who is the brother of the first named applicant’s grandfather, Tiare Tewae. The second named respondent is their mother’s first cousin, as his father Tebikau is the brother of Tiare. The third named respondent is the first named applicant’s second cousin because their grandfather, Itua, is the brother of the first applicant’s grandfather, Tiare.
   
3. The case 17 /17 was decided on April 27, 2017. The applicants filed this miscellaneous application late on June 29, 2023. The court in CN 17/17 considered the application for the distribution of the lease money received from the land of Watai Tiare. The court confirmed the distribution to be shared among Kantabu Tebikau with siblings (second respondent), Tiare Kabane with siblings (first respondent), and Karora Rakuniti with siblings (third respondent). The court also ordered that the share of Teruruai Tewae should be shared among the three siblings, namely Tiare Tewae, Ituaa Tewae, and Tebikau Tewae. The first and second applicants were not invited to the hearing and, therefore, did not receive any share of the rent. They are unhappy with this decision, hence this application.
   

Submissions and Analysis

4. The case, Batee v Trustees for Jehova’s Witness Church [2006] KICA 17; Land Appeal 5 of 2005 (26 July 2006) sets out the principles to consider for extension of time. The relevant paragraph 16 is shown below;

“16. 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 the discretion will be the magnitude of the delay, the reasons for it, any prejudice suffered in consequence, and the strength of the appellant’s case. In the end, however, there is an overriding requirement to do what is just.”

5. The first named applicant stated in her affidavit that in CN 154/48, the Land Commission transferred the lands Korontewa, Biketibu, and Tekauatao to Tiare Tewae and siblings. After his death, the lands were registered under Watai Tiare, along with her sister and the issues of Tiare Tewae's brothers in CN 21/04. The land leased by the government is Korontewa 188-a, on which a primary school has been built.
   
6. In 2023, the applicants decided to register their names on their grandfather’s land after he had passed away. They sought help from a lawyer, who advised them to check the land records to see which lands their grandfathers owned and whether those lands are still listed under their grandfathers’ names. That was when they came across case 17/17.
   
7. The applicants, Ataata Rabaua and Tikoua Eita gave evidence on 13 March and tendered their affidavits. Counsel for the first respondent informed this court that they will abide by the court’s decision.
   
8. Counsel for the second and third respondents cross-examined Tikoua, the daughter of Kanrerei Itua Tewae. She confirmed that her mother had died, but while she was alive, she used to receive a share of the rent until 2021. She did not receive her share for 2022 because her mother had died before 2022. Her mother received her share of the rent from Karora, the third respondent named, and the issue of Kanrerei.
   
9. On April 24, Ataata was called back to the stand. Counsel for the second and third named respondents cross-examined her, and she confirmed that she received her share from the lease. However, she realized in 2023 that their names were not registered on the land, as Tiare Kabane registered his name after his mother, Watai Tiare, when she passed away. She received her shares in 2019 and 2020.
   
10. Karora Rakuniti tendered her affidavit on April 24. She testified that after the registration case in 17/17, she often paid the second respondent, Tikoua's sister, their share of the rent since Tikoua lived elsewhere. However, she stopped when the second respondent sued them, claiming they were not the children of Itua Tewae.
    
11. The applicants’ argument is that the registration in CN 17/17 omitted the issues of Tekiaraoi Tiare Tewae, who are the first named applicants, and Kammari Itua Tewae, the second named applicants. Although they did receive their share of the rents after this registration case, CN 17/17, the second named applicants stopped receiving it after their mother died.
    
12. After reviewing the evidence before this court, I agree that the interests of the two named applicants are neither registered nor recognized by the decision in the case on review. Tiare Kabane was registered, leaving out the issues of Tekiaraoi Tiare. Karora Rakuniti, along with siblings, was registered for the issues of Kanrerei Itua, leaving out the issues of Kammari Itua. The respondents claimed that the registration done in CN 17/17 concerns only the leased land, but this is not true, as the decision covers all the lands belonging to Watai Tiare mtmm and the issues of Tiare Tewae’s brothers.
    
13. I accept the reasons provided for the delay and find that the second and third respondents will not be prejudiced if the leave for extension of time is granted. I am also satisfied from the evidence that the decision of the magistrate court in CN 17/17 must be quashed for breaching the principles of natural justice. The applicants were adversely affected by this decision as their rights over the three lands were lost.
    
14. The first respondents did not oppose the application to quash the decision of CN 17/17. In fact, the first respondent also argued that their interests were affected when the court made a decision regarding the shares of Teruruai Tewae that should be shared among the three issues of Tiare, Itua, and Tebikau without their consent. That is why they agree for CN 17/17 to be quashed.
    

Outcome

15. For the reasons stated above, the application for leave for extension of time is granted.
    
16. Likewise, the application for leave to apply for an order of certiorari to bring before this court the decision of CN 17/17 for the purpose of its being quashed is also granted.
    
17. In light of the above, the decision of CN 17/17 is quashed. The matter is remitted to the lower court for rehearing. All interested parties must be invited. Cost is awarded to the applicants, to be agreed or taxed.
    

Order Accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA

Chief Justice