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Taketiau v Tetoa [2023] KIHC 29; Civil Review 6 of 2021; Miscellaneous Application 21 of 2021 (13 October 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL REVIEW 6 of 2021
MISCELLANEOUS APPLICATION 21 OF 2021

BETWEEN:
FRANCIS TAKETIAU MTMM FOR ISSUES OF TAKETIAU
TANRE RATINTERA MTMM FOR ISSUES OF RATINTERA BERIKI
Applicants

AND:
TEEKO TETOA
MAETIU IOANE
Respondents

Date of Hearing: 9 August 2023, 6 Sept 2023, 15 Sept 2023 (Written Submission)
Date of Judgment: 13 October 2023

Appearances: Ms. Taaira Timeon for the Applicants
Mr. Banuera Berina for the Respondents

JUDGMENT

The Case: Brief Facts

1. Background

1.1. This is an application for the extension of time to apply for leave for an order of certiorari to quash the magistrate court decision in CN TI 7/06, delivered on 7 June 2006. The decision grants the registration of the names of the two respondents pending confirmation of Kabunare’s interest or share in the land of Tekauna 691/1i at Bangantebure. This land is co-owned by the three brothers, Kabunare, Taketiau and Ratintera.
1.2. The Applicants filed their application for the extension of time on 26 April 2021. An affidavit in support by Francis Taketiau was filed together with this application.

2. APPLICABLE LAW
   

2.1. In the decision of the Court of Appeal case of Batee v Trustee for Jehova’s Witness Church [2006] KICA 17, three requirements are established for the court to follow in determining whether or not to allow the extension of time. These are;

• - Magnitude of the delay, the reasons for it,
• - The prejudice suffered as a consequence, and
• - The strength of the appellant’s case.
  

3. Delay and the reasons for it
   

3.1. The applicants submitted that they never knew about the case TI 7/06 until the end of March 2021, when they found out about it from their niece, the court clerk.

3.2. Through one of them (Francis), the applicants deposed that when TI 7/06 was heard, their father, Taketiau Beriki, was alive and their uncle, Ratintera Beriki, had passed but was survived by his children. Their father and the children of Ratintera were not summoned to this hearing, so they did not know about this case until fifteen years later.

3.3. Although the delay was fifteen years, the applicants argued that the counting should start from the date they became aware of this case, March 2021. The case of Atanta v Tabaua [2005] KICA; Land Appeal 1 of 2005; (8 August 2005) was submitted to support this proposition. The application was filed only two months after they knew of this case.

3.4. In response, the respondents denied that Taketiau did not know about this registration. To Maetiu’s knowledge, Taketiau knew that his brother Kabunare had registered Maetiu and Teeko on his interest in the land. He was very close to Kabunare, and visited him many times while still alive. Taketiau congratulated Maetiu on the transfer of the land to her. So, he knew about this registration, but he did not disclose it to his children. This is the evidence of Maetiu that was not challenged in court, so I will accept it.

3.5. This leaves this Court with the interest of the issues of Ratintera to consider. As stated above, Ratintera was the brother of Kabunare and Taketiau. Ratitntera passed away in 1991, before the Respondents’ registration in case number TI 7/06. There was no evidence by the respondents to challenge or show that the issues of Ratintera also knew about this registration. I have accepted the fact that Taketiau had knowledge about this registration and that he did not disclose it to his children. I will also assume that Taketiau did not inform the children of his brother, Ratintera, so they were unaware of this registration. It would not be fair to count that Taketiau’s knowledge about this case also represents the knowledge of Ratitenra’s children. Therefore, I will accept that the issues of Ratintera only knew about this registration case, TI 7/06, in March 2021. They are also applicants, so the delay is reasonable and accepted.

4. Prejudice suffered by the respondent.
   

4.1. The applicants submitted that the respondent will not suffer prejudice as they have not received full title since the land has not yet been distributed. It is still in the name of the three brothers, Taketiau, Kabunare, and Ratintera.

4.2 The respondents, on the other hand, submitted that they would be prejudiced if the extension of time is granted because in reliance on the judgment, they had done the following;

- They had loved and cared about Kabunare during his illness,

- They had spent an amount of money on the house in construction and maintenance, and

- They had spent their money to clear Kabunare’s loan so that the mortgage over the land was cleared.

4.3 I agree with the respondents that their evidence on the above points was not challenged.

5. Strength of the applicant's case
   

5.1 The applicants raised that because they were not invited to the hearing of the case TI 7/06, natural justice has been breached as they should be accorded the right to be heard as beneficiaries or rightful next of kin of their uncle, Kabunare Beriki.

5.2 The respondents argued that the applicants had failed to assert their right over the interest of Kabunare in the land when they did not care for and love him when he was bedridden. They also failed to assert their right over the land by registering themselves or evicting the respondents from the land after Kabunare passed away. For these failures, the respondents had expended time and money on the house's construction and maintenance, provided love and care to Kabunare when he was bedridden, and cleared the mortgage over the land by paying off Kabunare’s loan.

5.3 By weighing the two positions, as stated above, I have accepted the delay. I will also accept that there is a critical issue to be considered, which is natural justice.

6. Conclusion
   

6.1 For the reasons stated above, there is an overriding requirement to do what is just in this case: to grant the application for an extension of time.

6.2 The hearing date will be fixed for the substantive application.

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice