IN THE HIGH COURT OF KIRIBATI
Land Appeal Jurisdiction
(South Tarawa)

MISC APP 38 of 2016
(arising out of HIGH COURT LAND APPEAL NO: 42 of 2014)

BETWEEN

OREA KAIUEA ___________________________________ Applicant

AND

PRINCIPAL (Hiram Beingham High 
School) ______________________________________ Respondent

Appearances:	Mr. Banuera Berina for the Applicant
Ms. Batitea Tekanito for the Respondent

RULING ON APPLICATION FOR EXTENSION OF TIME
I. Introduction
1.	This is an application by the Applicant, Mr. Orea Kaiuea, seeking an order extending the time within which he may appeal against the decision of the Lands Court of Beru delivered on 10 November 2009 in Case No. 100/09.  The application arises from Miscellaneous Application No. 38 of 2016, supported by affidavit evidence and submissions of counsel. 
2.	The Respondent opposes the application, contending that the delay is excessive and prejudicial.
II. Background
3.	The factual history has been set out in the Applicant’s affidavit of 25 June 2014. 
4.	In summary, the Lands Court of Beru on 10 November 2009 found that the Applicant had sold his land to the Respondent school.  The Applicant denies this and has consistently sought to challenge the finding, albeit through misdirected proceedings.  After prolonged litigation in the Magistrates’ Court and a retrial ordered by the High Court in Kaiuea v Trustees of the Kiribati Protestant Church Iro Hiram Bingham High School (Land Appeal No. 24 of 2011, 17 May 2012), the matter remains unresolved.
5.	The present application seeks leave to appeal out of time against the 2009 decision.
III. Applicant’s Grounds
6.	The Applicant avers that the delay was caused by reliance on legal advice to pursue fraud proceedings rather than a direct appeal.
7.	He maintains that he never accepted the 2009 decision and has consistently sought to challenge it.
8.	He argues that grave injustice would result if he were denied the opportunity to appeal, as he would lose ownership of his land without consent.
9.	He annexes a certificate of ownership showing that the land register continues to record him as owner of Tebue 251-4.
IV. Respondent’s Opposition
10.	The Respondent submits that the delay is inordinate: the Ordinance allows three months to appeal, yet the Applicant waited nearly five years before filing.
11.	The Respondent contends that the delay is attributable to the Applicant’s own choices and risks in following counsel’s advice.
12.	Prejudice is alleged, as the Respondent has invested in the property and key witnesses have since died.
V. Issues
13.	The Court must determine:
a)	Whether the Applicant has shown sufficient cause for the delay.
b)	Whether the interests of justice warrant extension of time despite prejudice to the Respondent.
VI. Legal Framework
14.	The grant of an extension of time is a matter of judicial discretion.  It is not a right.  In Ratnam v Cumarasamy [1965] 1 WLR 8 (PC), the Privy Council held that extension of time is not a right but a matter of discretion, requiring sufficient cause for delay.  Likewise in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, the Court of Appeal emphasized that delay and non-compliance must be justified by good reason, and the overriding objective of justice governs whether extension should be granted.
15.	These principles have been consistently applied in our jurisprudence:
o	Batee v Trustee for Jehovah’s Witness Church [2006] KICA 17 – 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.
o	Tabora v Uruatarawa [2009] KICA 9 – even a 17‑year delay may be overcome if the original invalidity is fundamental, but delay remains a critical factor.
o	Tannang v Temare [2012] KIHC 19 – a 21‑year delay was fatal; discretion must be exercised against extension where delay is extreme and unexplained.
o	Tamoaieta v Teem [2019] KIHC 113 – a 16‑year delay was fatal absent unusual features; discretion requires balancing delay against the nature of the invalidity.  However, on appeal in Tamoaieta v Teem [2022] KICA 2, the Court of Appeal emphasized that delay must be assessed contextually, and that fundamental defects such as fraud or denial of natural justice may justify extension despite long lapse of time.
o	Ueaititi v Toauriri [2019] KIHC 120 – a 71‑year delay was insurmountable; applicants must show “good and acceptable” reasons.
o	Wilder v Kabiriera [2019] KIHC 127 – extension granted despite 10‑month delay, because arguable grounds of appeal raised significant legal error.
o	Taukaro v Tenieu [2024] KIHC 54 – reaffirmed that magnitude of delay, reasons, prejudice, and strength of case are all relevant, but justice is the overriding requirement.
16.	Extracting from these case authorities, an extension of time is not granted as of right, but only where the applicant demonstrates sufficient cause.  The Court must be satisfied, first, as to the magnitude of the delay and whether it is capable of indulgence; second, that there is an acceptable explanation for that delay; third, that any prejudice to the respondent does not outweigh the applicant’s right to be heard; fourth, that the applicant’s conduct throughout demonstrates diligence rather than indifference, since persistence and good faith may weigh in favour of indulgence; and fifth, that the appeal raises an arguable case with real prospects of success.  Above all, the discretion must be exercised to secure justice, which remains the overriding requirement.
17.	Although most of the authorities mentioned above arise in the certiorari and review context, the principles governing extension of time therein have equally been applied to appeal proceedings, as the Privy Council in Ratnam v Cumarasamy affirmed that extension of time is always a matter of discretion requiring sufficient cause.  In other words, the underlying discretion, requiring sufficient cause, balancing prejudice, and securing justice, remains the same.
VII. Consideration and Application
18.	Having set out the doctrinal framework, this Court now considers whether the applicant is entitled to an extension or not.
19.	Magnitude of Delay: The first matter for consideration is the sheer length of the delay.  The Ordinance prescribes a period of three months within which an appeal must be lodged. Here, the Applicant seeks leave more than six years after the Lands Court’s decision.  Such a delay is substantial and, on its face, far exceeds the statutory limit.  Courts have consistently held that the magnitude of delay is a critical factor: in Tannang v Temare, a 21‑year delay was fatal, and in Tamoaieta v Teem, a 16‑year delay was insurmountable absent unusual features.  By contrast, shorter delays have occasionally been excused where the merits were strong, as in Wilder v Kabiriera where a 10‑month delay was overcome because the appeal raised significant legal error.
20.	The principle is that the longer the delay, the heavier the burden on the applicant to justify indulgence.  A delay of six years is undeniably grave and would ordinarily weigh strongly against extension.  It cannot be brushed aside as trivial or technical.  The Court must therefore approach the application with caution, recognizing that such a magnitude of delay risks undermining the finality of litigation and prejudicing the respondent.  The question then becomes whether the reasons advanced, the merits of the case, and the interests of justice are sufficiently compelling to overcome this prima facie obstacle.
21.	The jurisprudence in Tamoaieta v Teem illustrates both the strictness and flexibility of the discretion to extend time.  At first instance, the High Court refused an application brought 16 years after the impugned order, holding that such a magnitude of delay was fatal absent unusual features.  Yet on appeal, the Court of Appeal reversed that decision, emphasizing that the relevant delay should be measured from the point at which the applicant first became aware of the order, and that fundamental defects such as fraud or denial of natural justice may override even lengthy delay. 
22.	The appellate court held that where an applicant had been deprived of the opportunity to be heard under section 14 of the Lands Code, justice required indulgence notwithstanding prejudice or passage of time.  These decisions together underscore that while delay is a critical factor, it is not determinative: the Court must weigh whether the underlying invalidity is sufficiently grave to justify extension.  In the present case, the continuing inconsistency between the land register and the Lands Court’s finding of sale is a fundamental defect of comparable seriousness.  As in Tamoaieta, the interests of justice demand that such a defect be tested on appeal, even if the delay is substantial.
23.	Reasons for Delay: The second matter is whether the Applicant has provided an acceptable explanation for the delay.  Courts have consistently emphasized that litigants bear responsibility for the conduct of their cases, and reliance on counsel’s advice does not automatically excuse non‑compliance.  However, where an applicant has acted diligently and in good faith, misdirection by counsel may constitute sufficient cause.  In Ratnam v Cumarasamy, the Privy Council held that extension of time is discretionary and requires “sufficient cause” for delay.  Similarly, in Batee v Trustee for Jehovah’s Witness Church, the High Court stressed that leave will not normally be granted unless the applicant shows both an acceptable explanation and fairness in all the circumstances.
24.	In the present case, the Applicant explains that the delay was caused by reliance on legal advice to pursue fraud proceedings rather than a direct appeal.  He maintains that he never accepted the 2009 decision and consistently sought to challenge it.  
25.	While this course was misguided, it shows that the delay was not the product of indifference but of a mistaken legal strategy.  He consistently sought remedies, albeit through misdirected procedures, and his persistence distinguishes him from applicants in Ueaititi v Toauriri and Tamoaieta v Teem, where extreme delays were compounded by indifference or inaction.  The Applicant’s conduct shows diligence and good faith, even if legally misdirected.
26.	The Court must weigh whether such reliance on counsel, coupled with continuous pursuit of remedies, amounts to “sufficient cause.”  While litigants cannot wholly shift responsibility to their lawyers, the jurisprudence recognizes that genuine reliance on professional advice may mitigate the harshness of strict time limits.  In this case, the explanation, though imperfect, is credible and demonstrates that the delay was not the product of indifference or abuse of process.  That factor weighs in favour of granting indulgence.
27.	Prejudice to Respondent: The third matter is the extent of prejudice that would be suffered by the Respondent if time were extended.  Prejudice is not presumed merely from delay; it must be assessed in light of the circumstances and balanced against the applicant’s right to be heard.  Courts have consistently recognized that prejudice may arise where respondents have altered their position in reliance on the impugned decision, invested resources in the property, or lost access to key witnesses.  In Tabora v Uruatarawa, the Court acknowledged that even a lengthy delay may be overcome if the original invalidity is fundamental, but prejudice remains a critical factor.  Similarly, in Tamoaieta v Teem, prejudice was compounded by the passage of time and the fading of evidence, reinforcing the refusal to extend time.
28.	In the present case, the Respondent asserts prejudice on two grounds: first, that the school has invested in the property, and second, that key witnesses have since died.  These are not minor inconveniences but serious consequences of delay.  Investment in land represents reliance on the stability of judicial decisions, and the death of witnesses diminishes the Respondent’s ability to present a full defence.  Courts have consistently recognized that such prejudice weighs heavily against indulgence, since it undermines both fairness to the respondent and the integrity of the judicial process.  
29.	However, prejudice must be balanced against the gravity of the Applicant’s claim.  The land register continues to record the Applicant as owner of Tebue 251‑4, creating a fundamental inconsistency between the register and the Lands Court’s finding of sale.  That inconsistency strikes at the heart of ownership and cannot be ignored.  While the Respondent’s reliance interests are real, they do not confer indefeasible title in the face of a potentially erroneous judgment.  Moreover, although the death of witnesses is regrettable, documentary records and institutional evidence remain available to test the validity of the alleged sale.  The prejudice, though serious, is not irreparable.
30.	The Court must therefore weigh whether denying extension would perpetuate a grave injustice greater than the prejudice suffered by the Respondent.  In this case, the risk of depriving the Applicant of his land without consent or payment outweighs the reliance interests of the school.  Justice requires that the substantive question of ownership be adjudicated, even if the Respondent faces evidential difficulty.  The discretion to extend time exists precisely to prevent such injustice, and the balance here tips in favour of allowing the appeal to proceed.
31.	Conduct of the Applicant: The fourth matter concerns the overall conduct of the Applicant throughout the period of delay.  The Applicant’s conduct over the years must be assessed with care.  It is not enough to note that he filed proceedings; the Court must ask whether his behaviour reflects diligence or indifference.  In many cases, extreme delay has been compounded by applicants who simply slept on their rights, showing no sustained effort to vindicate their claims.  Such indifference has rightly been treated as fatal, as in Ueaititi v Toauriri and Tamoaieta v Teem, where applicants allowed matters to lapse without meaningful action.  By contrast, in Tabora v Uruatarawa, the Court acknowledged that even a lengthy delay may be excused where the applicant’s conduct showed persistence and the underlying invalidity was fundamental.
32.	The Applicant has consistently sought to challenge the Lands Court’s 2009 decision.  His efforts were misdirected into fraud proceedings rather than a direct appeal, but they nonetheless demonstrate persistence and reliance on professional advice.  He did not abandon his claim or acquiesce in the judgment; rather, he pursued alternative remedies in good faith, relying on professional advice.  This distinguishes him from litigants who have allowed matters to lapse without action.
33.	The Court must acknowledge that misdirection is not the same as neglect.  Here, the Applicant’s persistence, coupled with reliance on counsel, indicates that he was not indifferent to the outcome.  His conduct supports the conclusion that the delay was not the product of neglect but of misdirection.  That factor weighs in favour of granting indulgence, since the discretion to extend time is intended to prevent grave injustice where a litigant has acted diligently, even if imperfectly.
34.	Prospects of Success: The fifth matter is whether the proposed appeal discloses a genuine prospect of success.  The Court must be satisfied that the proposed appeal discloses a genuine prospect of success.  It is not sufficient that the applicant merely disagrees with the Lands Court’s conclusion; the grounds must raise a serious question of law or fact which, if upheld, could materially alter the outcome.  At this stage the Court does not undertake a full rehearing, but it must be satisfied that the appeal is not frivolous or hopeless.
35.	In the present case, the land register continues to record the Applicant as owner of Tebue 251‑4.  That documentary evidence does not merely raise a substantial issue; it constitutes prima facie evidence of a fundamental defect in the Lands Court’s finding of sale.  A register entry is the authoritative record of ownership, and inconsistency between that record and the court’s conclusion strikes at the very foundation of title.  Such a contradiction is not technical or peripheral but goes to the core validity of the judgment.  The Applicant’s challenge therefore goes beyond a speculative grievance.  
36.	Accordingly, the appeal carries a real and arguable prospect of success.  This is analogous to Wilder v Kabiriera, where leave was granted despite delay because the appeal raised a significant legal error.   By contrast, in Tamoaieta v Teem and Ueaititi v Toauriri, extreme delays were compounded by the absence of any credible grounds, rendering extension futile.   Here, the register inconsistency provides a clear, objective basis for appeal, elevating the merits analysis and weighing strongly in favour of granting indulgence.
37.	Interests of Justice: The final and overriding consideration is whether, in all the circumstances, justice requires that time be extended.  The discretion to enlarge time is not exercised mechanically; it is guided by the fundamental principle that courts exist to prevent injustice and to ensure that disputes are resolved fairly.  As emphasized in Ratnam v Cumarasamy, extension of time is not a right but a matter of judicial indulgence, and the Court must be satisfied that denial of relief would occasion grave unfairness.  Likewise, in Batee v Trustee for Jehovah’s Witness Church and Taukaro v Tenieu, the High Court reaffirmed that delay, reasons, prejudice, and merits must all be weighed, but justice remains the overriding requirement.
38.	In the present case, the Applicant faces the risk of losing his land without payment or consent if leave is refused.  Such an outcome would foreclose substantive adjudication of ownership and would deny him the opportunity to be heard on a matter of fundamental importance.  While delay and prejudice weigh against indulgence, the continuing inconsistency between the land register and the Lands Court’s finding underscores that the dispute remains unresolved.  To deny extension would be to allow a potentially erroneous judgment to stand untested, thereby risking grave injustice.
39.	The Court must balance the competing interests: finality of litigation and protection of reliance on the one hand, and the need to secure substantive justice on the other.  Where the scales are evenly poised, the jurisprudence directs that justice must prevail.  In this case, the strength of the Applicant’s claim, his persistent conduct, and the unresolved question of ownership together tip the balance in favour of allowing the appeal to proceed.  The interests of justice therefore require that the discretion be exercised to extend time.
VIII. Conclusion
40.	Applying the consolidated test, the Court is satisfied that sufficient cause has been shown.  The Applicant has diligently pursued remedies, albeit misdirected, and the interests of justice require that he be permitted to appeal.  The delay, though considerable, is outweighed by the strength of the Applicant’s case and the overriding need to prevent grave injustice.
41.	Justice is the Court’s overriding objective.  Finality of litigation is itself a component of justice, ensuring certainty and stability in legal outcomes; but where strict adherence to finality would perpetuate a fundamental injustice, substantive justice must prevail.  The discretion to extend time exists to ensure that substantive rights are not lost through procedural missteps.
IX. Order
(a)	The application for extension of time is granted.
(b)	The Applicant shall file and serve his appeal against the Lands Court decision of 10 November 2009 within 30 days of this ruling, if he has not done so.
(c)	Costs of this application shall be in the cause.
Order accordingly.
Dated this 9th day of January 2026.

HON. AOMORO. T. AMTEN
Judge of the High Court