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Betero v Teroron [2010] KIHC 24; Civil Case 159 of 2009 (17 February 2010)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 159 of 2009

BETWEEN:

BUMAROU BETERO
TAEATA TONG
APPLICANTS

AND:

TARANGAUEA TERORON
TERETIA BETERO
AWAKE ITINNAIBO
TEATA NAUTO
ATTORNEY GENERAL FOR THE
SINGLE MAGISTRATES’ COURT
RESPONDENTS

For the Applicants: Mr Banuera Berina
For the Respondents: Ms Taoing Taoaba
Attorney General to abide decision of the Court

Date of Hearing: 15 February 2010

JUDGMENT

Application for a writ of certiorari to quash the decision in CN TI 3/05 delivered on 6 September 2005 and to extend the time within which to apply. The case was a determination of the boundaries of land at Bikenibeu. I found it difficult to master the detail of what happened but I am confident of the outline of the facts more than sufficient to come to a decision.

The land stretched from the ocean to the lagoon. There is no complaint about the determination of boundaries on the ocean side of the road. The applicants’ complaint concerns the area on the lagoon side. A gas station, then owned by Nei Taeata Tong now owned by her son, Junior Harry Tong, occupied the area. As a result of the determination it was no longer wholly on Nei Taeata’s land but partly on the land now owned by Karea Baireti but at the time of the determination owned by Tarangauea Teroron.

Nei Taeata was not a party to the determination. She has lived in California for the last eight years but is at present in Kiribati. Her son, Junior Harry, is in Utah. Nei Taeata gave evidence that she knew nothing of the determination until 2008 or 2009. Karea wrote a letter dated 5 June 2009 to "Manager/Operator Junior Harry Tong – Gas Station Bikenibeu" giving the applicants four weeks’ notice to remove "your property that lies within our boundaries and no later than by 04 July 2009". The present application is dated 29 August 2009. Many affidavits were in evidence and the Court heard oral evidence from Nei Taeata Tong and Nei Susan Mary Barrie (the mothers respectively of Junior Harry and Karea – the ladies have been friends for nearly 40 years) and from Karea. There is no need to set out the evidence.

I have not used any of the affidavits received as I am not confident of the accuracy of the information in them. The two ladies who gave evidence were vague. As Nei Susan said she was "not as focused as the boys". I am, though, satisfied that it was 2008 at the earliest before Nei Taeata knew of the 2005 boundary determination. The delay after she learnt of the determination is, at the most, less than two years.

The fundamental point, not in dispute is that as a result of the determination the gas station ceased to be wholly on the land now owned by Junior Harry Tong – and his mother, then the owner, was not a party to the determination and may reasonably be excused for not knowing about it for several years.

Should time within which to apply be extended? The evidence as to who knew what and when is vague and conflicting. Whenever the applicants first knew, I am very much influenced by the unfairness of allowing a decision to stand which took away the ownership of part of the applicants’ land on which the gas station had been built and without the applicants being heard. That is something which should not be allowed to stand. Time within which to apply will be extended to 30 August 2009 and the decision in CN TI 3/05 quashed.

There was another boundary determination concerning the land in late 2008/early 2009. It, too, may have affected the applicants’ boundary. Again the applicants were not parties to it nor was Karea. There is no application concerning this toutia before the Court.

I may add that I also sympathise with the respondents. They have been trying now for five years to develop their land by building new offices. The hearing of this application has been delayed several times to allow the applicants to be present to give evidence. If fresh proceedings are taken for a boundary determination Junior Harry Tong should be a party. He may still not be in Kiribati. Mr Berina says he has instructions to accept service on Junior Harry’s behalf. So far so good but nor should the actual determination be delayed (as this hearing was delayed) to allow Junior Harry or any other prospective witness to give evidence. The Single Magistrate should get on with the determination quickly and not allow the convenience of a prospective witness to delay proceedings.

As it is the application is granted: the decision of the Single Magistrate in case No TI 3/05 is quashed.

Dated the 17th day of February 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice