IN THE KIRIBATI COURT OF APPEAL
LAND JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Land Appeal 5 of 2005

BETWEEN:

MIKAERE BATEE AND BATIRIO BEROI
Appellants

AND:

TRUSTEE FOR JEHOVAH’S WITNESS CHURCH
Respondent

Before:	Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for appellants: Fleur Hamilton
Counsel for respondent: Vincent Toole

Date of Hearing: 24 July 2006
Date of Judgment: 26 July 2006

JUDGMENT OF THE COURT

Introduction

1. The appellants seek to appeal from a decision of the High Court sitting in its land jurisdiction on 23 November 2001 (LA2/2001) dismissing an appeal from the decision of a single Magistrate (CN 17/99) in a boundary dispute between the appellants and the respondent. We have been particularly assisted by the thoroughness of the submissions. 

Background

2. The strip of land known as Tebue 753 runs from east to west on South Tarawa. It is divided into 4 plots which, beginning from the eastern end, have been given the letters "a", "e", "i" and "o". The appellants are the owners of 753i and the respondents 753o. The present proceedings concern the location of the boundary between the two.

3. Ms Hamilton does not dispute the history contained in the submissions of Mr Toole which we repeat:

In 1984, a boundary determination was initiated by N. Kaake Tetimra in the Magistrates Court in 43/84. The only parties to that determination were N. Kaake Tetimra and Nei Babaku Bate. The purpose of the determination was stated by the plaintiff, N. Kaake Tetimra:

I request for our boundaries on our lands to be corrected so that we know our boundaries.

In making his determination, the magistrate attempted to determine not just the boundary between Kaake Tetimra and Nei Babaku Bate’s land, but the boundaries of all the plots in Tebue 753. He did this by purporting to measure the length of Tebue 753 and then dividing the result by 4.

This was done even though the other landowners in Tebue 753, and those immediately adjoining Tebue 753 on both sides, were not parties to the determination, nor is there any evidence that they were present or even knew of the hearing.

The owner of Tebue 753(o), Tinia Bureka, was not aware of determination 43/84 until 1994. In giving evidence before the Magistrates Court in CN 1/94, she said regarding the determination 43/84:

I know nothing of that boundary determination. I did not know because I gave birth in 1984 and was issued no summons.

When asked at the 1994 hearing: "Regarding the 1984 minutes?" Tinia Bureka responded:

We know nothing about that.

In 1994, a boundary determination was initiated by the Appellants to establish the boundary between Tebue 753(o) and 753(i). However, the magistrate purported to determine not just the boundary between Tebue 753(o) and 753(i), but the boundaries of all the plots in Tebue 753. He did this by purporting to measure the length of Tebue 753 and then divide the result by 4 as had been done in 1984. This was done even though all the landowners in Tebue 753 and immediately adjoining Tebue 753 on both sides were not parties to the proceedings.

Determination CN 1/94 was appealed to the High Court by Tinia Bureka, the owner of Tebue 753(o). The appeal was upheld in 1997 (HCLA 20/94) and remitted back to the Magistrates Court for retrial. In finding the Magistrates Court decision "unsatisfactory", the High Court said:

There was no evidence before the magistrates to establish where the land Tebue 753 began and ended. Without knowing those essentials, we cannot see how dividing a measurement by 4 would necessarily result in an accurate boundary.

In 1999, the Magistrates Court reheard the boundary determination between Tebue 753(i) and 753(o) in B17/99. On the basis of the evidence before it, the Magistrates Court determined that the boundary between Tebue 753(o) and 753(i) was the one that had been in use for more than 30 years, at least since the 1960s.

The Appellants filed a notice of appeal against the Magistrates Court decision in May 1999. The High Court heard the appeal and in handing down its decision dismissing the appeal on 23 November 2001 in HCLA 2/2001, it said:

Having considered carefully and anxiously all the information in the file, having seen the land in dispute and listened to the arguments put before us, we can find no error of law on the pat of the Single Magistrate.

Following the High Court’s decision in 2001, the Appellants took no further action in this matter until 29 March 2005 when they lodged an appeal and application for leave to appeal out of time against the 2001 decision of the High Court.

4. The appellant’s appeal and application for leave to appeal out of time were set down for hearing in the session of this Court commencing 2 August 2005. On 27 July 2005 – some four months after filing their appeal documents - the appellants served them on the respondent. 

5. When the matter came on for hearing before this Court in 2005 the appellant was legally represented but not the respondent. Lay representatives of the respondent sought an adjournment to the 2006 session so that they could arrange legal representation. The Court granted the adjournment but in the absence of opposition also granted the application for leave to appeal out of time. 

Application to rescind the leave to appeal

6. On behalf of the respondent Mr Toole applies to rescind the leave to appeal given in 2005. He submitted that s 15 of the Court of Appeal Act gave this Court the jurisdiction to recall an earlier judgment. 

7. We do not think that s 15 is the source of jurisdiction. It is concerned with conditions upon which an appeal will be heard. It does not readily extend to the recall of a judgment which has already been given. However this court does have an implied jurisdiction to ensure that its own processes are not abused. The jurisdiction will rarely be invoked for the purpose of recalling a judgment but is available in principle.

8. In the present case we are satisfied from the material put before the Court by Mr Toole that last year’s judgment granting leave was an abuse of the processes of this Court. For four months the appellants delayed serving the notice of appeal and associated papers. The respondents did not receive them until 6 days before the appeal was due to be heard. As a result the respondent had no realistic opportunity of arranging legal representation. In many cases that may not affect the outcome. But in this case it was critical.

9. From the comprehensive submissions and evidence now put before us by Mr Toole, it is plain that the conduct of the leave application would have been dramatically different if the appellants had given the respondent reasonable notice. In particular we would have learned that following expiry of the time for appeal the respondent carried out extensive improvements to the property requiring 10,000 man hours of work plus the expenditure of over $100,000 in materials. 

10. The respondent’s improvements to the property after the appeal period had expired included a church and other buildings. They must have been obvious to anyone passing along the main road in front of the property, let alone someone with a special interest in it. The appellants must have been aware of these improvements and the fundamental effect they would have on an application for leave. They made no reference to them. 

11. It is true that in general there is no obligation on a party to disclose evidence adverse to it on an application dealt with on notice. In this case, however, the appellants were seeking an indulgence from the Court. They must also have been aware that their own delay had denied the respondent legal representation. We think that the appellants ought to have drawn the improvements to the attention of the Court. 

12. The Court should not allow the appellants to benefit from an order which they obtained only through their own cumulative defaults. The order granting leave is rescinded and we approach it afresh. 

Application for leave to appeal out of time

13. The judgment now appealed against was given in the High Court on 23 November 2001. Rule 16 of the Court of Appeal Rules requires that a party wishing to appeal must do so within six weeks of the judgment. 

14. In this case the six week period ended on 4 January 2002. The appellants’ application for leave to appeal out of time was not filed until 29 March 2005 – over three years out of time. To that one must add a further four months delay in serving the appeal. So in all the relevant delay is three and a half years.

15. Mr Toole cited a number of authorities concerning the discretion to grant leave to appeal out of time. They included Ratnam v Cumarasamy and Another (1964) 3 All ER 933 per Lord Guest at 935; Jackamarra v Krakouer (1998) ALJR 819; Gallo v Dawson (1990) ALJR 458 and Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. 

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.

Delay and explanation for it

17. In the present case the delay of over three years is substantial. Now that the matter has been fully canvassed, we do not think that there is any adequate explanation for it. The explanation of the first-named appellant, Mr Batee, is that having instructed a lawyer to lodge an appeal to the High Court in 1999 he absented himself to a distant island for five years. It was only on his return to Tarawa in December 2004 that he learned that he had lost the appeal. He then instructed the People’s Lawyer to bring the further appeal. 

18. Even accepting that Mr Batee was not told, and made no inquiry, as to the fate of the High Court proceedings, no explanation is given for the delay of four months between learning of the High Court decision and lodging the appeal or the further four months before the papers were served on the respondent. 

19. Even more importantly, Mr Batee was only one of two appellants. There is no explanation whatsoever for the inactivity of the other appellant, Mr Beroi. 

Prejudice to respondent

20. The prejudice to the respondent caused by the appellants’ delay is beyond question. In justified reliance on the judgment, and after expiry of the specified time limit for an appeal, the respondent has expended much time and money on improvements to the property. 

21. If the appeal succeeded, and the appellants’ contentions were accepted, the boundary of their property would run through the middle of most of the buildings now erected by the respondent. So far as counsel are aware, there is no legislation in Kiribati providing for boundary adjustments in cases of accidental encroachment.

Strength of the appeal

22. As this is not the occasion for a full inquiry into the merits of the proposed appeal a brief summary will suffice. 

23. The Magistrate’s Court boundary determination which the appellants seek to quash (CN 17/99) purports to establish the western boundary of the appellants’ property. The appellants argue that if left to stand, this decision would effectively equate their western boundary with their eastern one, thus extinguishing their land altogether. 

24. Any appeal to this Court would have to be confined to an identifiable question of law. The first ground of appeal is that the Magistrate in CN 17/99 fell into error in overlooking the effect of previous decisions, that this had the consequence that the appellants’ property is eliminated, and that for the High Court to fail to find any error of law in that process was itself an error of law. 

25. It will not be possible to tell whether the decision currently under appeal would have the effect of eliminating, or even unreasonably reducing, the appellants’ property until its eastern boundary is established. The appellants’ case in that respect appears to rest largely upon the Magistrates’ Court’s earlier decision in CN 43/84. However that decision appears to have defined the four properties’ dimensions relative to each other rather than in absolute terms relative to currently identifiable points in the ground. Nor is it presently clear to us that failure to recognise the relationship between the two decisions in the Magistrate’s Court would amount to an error of law in the High Court. 

26. The second ground of appeal is the closely related one that in decision CN 17/99 the second Magistrate was purporting to overrule an earlier decision of the same court in CN 43/84 without the jurisdiction to do so. That was said to be closely related to cause of action (res judicata) or issue estoppel. 

27. It must be noted, however, that the parties to CN 43/84 were not the current parties or their predecessors in title but the appellants and their eastern neighbour. The respondent’s predecessor was not a party to those proceedings. Nor was her boundary an issue before the Magistrate. The Magistrate was asked only to determine the boundary between lots 753i and 753o. Anything the Magistrate said concerning other boundaries, including the boundary now in dispute between the current parties, was obiter and not binding on a subsequent Magistrate required to determine a different boundary.

28. We do not attempt to decide those issues. However it is sufficient to say that the merits of the appellants’ appeal are not so obvious that it would be patently unjust to deny them leave to appeal. 

Conclusion

29. Standing back from the details, we are not persuaded that leave should be given to appeal out of time. The appellants’ delay has caused the respondent irreparable prejudice and the other discretionary aspects also count against the application.

30. The application for leave to appeal is dismissed. The respondent does not seek costs. 

Hardie Boys JA
Tompkins JA
Fisher JA