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Tourakai v Tourakai [2023] KIHC 22; Civil Review 16 of 2019 (1 September 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL REVIEW 16 OF 2019

BETWEEN:
ANATATIA TOURAKAI AND ISSUES
TEITINREREI TOURAKAI AND ISSUES
BETIATA BERENATO AND SIBLINGS
ERIA TOKOA AND SIBLINGS
Applicants

AND:
WINTI TOURAKAI
First Respondent

AND:
ISSUES OF KABOORA TIMON
ISSUES OF TERETIA TIMON
ISSUES OF IOAKIM TIMON
ISSUES OF TUTANA TIMON
ISSUES OF BARIBA TIMON
ISSUES OF MARIA TIMON AND KIBAUA KAMAIE
Second Respondents

Date of Hearing: 18 AUGUST 2023
Date of Judgment: 1 SEPTEMBER 2023

Appearances: Ms. Taaira Timeon for the Applicants
Mr. Titabu Tabane for the Respondents

JUDGMENT

A brief fact of the case;

1. This is an application for an extension of time to apply for leave to issue an order of certiorari to quash the magistrate court’s decision in CN 100 of 2006. The Applicants make this application pursuant to Order 64 Rule 5 of the High Court Civil Procedure Rules, 1964.
   
2. CN 100/06 concerns the registration of the second-named Respondents over the lands Tamoa 624e and Tebono 637n.
   
3. This court adopts the three principles set out in the case of Batee v Trustee for Jehova’s Witness Church [2006] KICA 17, Land Appeal 05 of 2005, to determine whether or not to grant the extension of time. Such principles will be discussed below in relation to the case at hand.
   

Acceptable reason for the delay;

4. The application for leave to issue an order of certiorari was filed almost thirteen (13) years after the decision of CN 100/06. The reason for the delay is that the applicants were unaware of this decision as they were not parties to the case. According to Borere Ruteru, they only found out in 2019 when the minute of this case was tendered in court during one of the boundary determination cases involving some of the families of both parties.
   
5. It is the Applicants' submission that the delay is counted from when they became aware of this case, CN 100/06 in 2019. This means the delay is only four months since their application was filed on 17 May 2019. The Applicants, in support of this argument, refer this court to the case of Tabora v Uruatarawa [2009] KICA 9.
   
6. The Respondents do not dispute this principle. However, they submit that the Applicants caused the delay in not taking action earlier when they had Nei Kai Berenato on their side, who attended the proceedings of CN 100/06, to find out the decision of this case and to get the minutes from the Court office as they have been residing in Tarawa all along.
   
7. I agree with the Respondents as Nei Kai Berenato, the sister of Betiata Berenato, also the named applicant, attended the hearing of CN 100/06. Borere Ruteru, family of the Applicants, deposed in his affidavit that the Applicants are aware of this case but not the decision as they were having difficulties finding the relevant court minutes. This confirms the argument of the Respondents that the Appellants were inactive in finding out the judgment, which they could easily get from the Court Office in Betio, Tarawa.
   

Strength of the applicant’s case;

8. From the affidavits and submissions, the crux of the Applicants’ case for certiorari is that they already owned the two lands in dispute when the second-named Respondents’ registration was approved in CN 100/06 without their knowledge.
   
9. The Respondents submit, and I agree, that the Appellants were fairly represented in CN100/06. The minutes clearly show the names of the Respondents in CN 100/06 as Winti Tourakai with brothers and sisters (mtmm), Betiata Berenato with brothers and sisters (mtmm), and Issues of Tokoa Kamaie. Anatatia Tourakai and Teitinrerei Tourakai, the first and second applicants, are siblings with Winti Tourakai. Betiata Berenato is the brother of Nei Kai Berenato who also attended the proceedings for her brother Betiata Berenato and their other siblings, and issues of Tokoa Kamaie, which include Eria Tokoa, were summoned but there was no record of them addressing the court.
   
10. The minutes also show the position of Winti Tourakai that he agreed with the registration of the Second Respondents’ names over the said lands. Nei Kai Berenato initially opposed the registration but later agreed because the second-named Respondents also have the same interest as them over the lands. This also confirms the Respondents’ submission to this Court that they own the land with the Applicants from the same forefather, Tourakai, who was the original owner in 1948. Tekaai Berenato and Keeko Kaboraa, by affidavit, also support this genealogy. Since there was no mention that the issues of Tokoa Kamaie did not attend the hearing, I agree with the Respondents that they were also part of the hearing as their names were listed as one of the Respondents.
    
11. That being said, the Applicants have no substantial case.
    

Prejudice to the parties:

12. The Applicants submit that prejudice is not an issue.
    

Summary:

13. Overall, there is an overriding requirement not to allow the application for an extension of time.
14. Cost to the respondent to be agreed or taxed.
    

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice