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Manua v Nabuti [2025] KIHC 106; Civil Review 12 of 2020 (2 April 2025)

IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction
(South Tarawa)

HIGH COURT CIVIL REVIEW NO: 12 of 2020

BETWEEN

EMERA MANUA & MANUA TEANG_____________ Applicants

AND

ERETI NABUTI, UEANTAUA NABUTI,
KAREITAUA TAAKE _______________________ 1^st Respondents

IATAAKE KING ____________________________ 2^nd Respondent

Date of Hearing: 25 February 2025

Appearances: Ms Taaira Timeon the Applicants

Mr Banuera Berina for the 2^nd Respondent

No appearance by the 1^st Respondents

RULING

AMTEN, J. – The case before me is an application for an extension of time to apply for an order of Certiorari. Mr Berina, for the 2^nd respondent, opposed the application.

The circumstances of the case appear straightforward. In 1994, the applicants purchased a portion of Maeka 682e from the estate of Nabuti Teuatamoa in case number 844/94. Their ownership was validated in 1997 under case number 204/97. The property is designated as Maeka 682e/3i, and they have lived on the land since that time.

In 2013, under case number Betlan 66/2013, the 2^nd respondent was registered as the owner of a different section of Maeka 682e. This specific plot is designated as Maeka 682e/3o. He has resided on this portion prior to the initiation of case Betlan 66/2013 and continues to inhabit it to the present day.

In summary, the core argument presented by the applicants was that they owned the entirety of Maeka 682e, except for the section sold to an individual named Raurenti, as they had purchased it in 1994. They asserted that the 1^st respondents no longer held the authority to sell any part of Maeka, rendering the sale to the 2^nd respondent null and void from the outset. The applicants contended that they were unable to contest the registration of the 2^nd respondent because the entire registration process occurred without their knowledge, and they were not invited to participate. Furthermore, they stated that they only became aware of the 2^nd respondent's registration in 2020, prompting them to take immediate action to challenge the registration.

The response from the 2^nd respondent was straightforward. He claimed that the applicants did not own the entirety of Maeka 682e, but rather only a portion of it, which they were aware of. He indicated that they were already cognizant of his interest in the property prior to the registration of his name, as he had been residing on his designated area before the sale in 2013. He characterized the 2013 registration as merely a procedural step. While they did not contest his title, they did challenge the boundaries. He substantiated his claims with references to multiple court cases in both the magistrates' court and the High Court.

After evaluating the opposing arguments regarding the application, the key matter to be resolved is whether this application meets the criteria for granting an extension of time.

The established legal principle dictates that an application for Certiorari, as well as any other prerogative orders, in the High Court must be preceded by an application for leave submitted within six months from the date of the proceedings. Should this timeframe be exceeded, a request for an extension of time must be made. These prerequisites are obligatory; without the granting of an extension, the application for leave to seek a prerogative order cannot be considered.

Chief Justice Sir John Muria had this to say after referring to O.61 r.3^[1], in the case of Toaia Tenangibo & Ors v Matou Tabora & Ors^[2]:

“The purpose of that rule is to provide a degree of certainty in Court proceedings so that parties may be able to regulate their affairs and businesses on the basis of that, if no challenge is made against the Court decision, no proceedings are likely to be allowed to be brought against that decision. Consequently, in my view, any application for Leave under Order 61, r2 on the grounds of error of law or procedural error is unlikely to succeed against a decision made more than six months”.

The burden is therefore on the application to satisfy the court of the delay in challenging a matter. This is well established in Marawa Eritane v Ioteba Rubeaia & Tewera Turabu^[3]. The Court said:

“The burden of showing good reason to justify extension of time after more than 10 years’ lapse, rests on the applicant. The registration complained of by the applicant was done in open court and there was no evidence to suggest that it was concealed from the applicant as she claimed. It is therefore highly unlikely that the applicant would not have known about it”.

It is important to recognize that this discretion must be wielded with care and is applicable solely in situations where the lower court's judgment reveals either a deficiency or an overreach of jurisdiction, a clear legal mistake, instances of fraud, bias, or a failure to adhere to the principles of natural justice, including the infringement of the right to be heard.^[4]

For leave to extend time, this court and the Court of Appeal have set up guidelines. In Ueaititi v Toauriri^[5], regards must be made to:

(a) the magnitude of the delay;
(b) the lack of acceptable reasons for the delay; and
(c) the prejudice respondents would face.

In Tabora v Uruatarawa^[6], the Court of Appeal added:

(a) the nature of the original invalidity which is now under challenge;
(b) the steps taken by the applicant thereafter;
(c) the extent to which the delay may be attributable to lawyers; and
(d) the extent to which innocent third parties have taken steps in reliance upon the original decision before being advised of the challenge.

In Tererei v Kataotao^[7], the party seeking such leave must also satisfy the court that:

(a) it is fair and just to extend time in all the circumstances of the case; and
(b) the strength of the applicant’s case

In Batee v Trustee for Jehova’s Witness Church^[8], the Court of Appeal stressed that leave (for extension of time) will not normally be granted unless the applicant shows:

(a) an acceptable explanation for the delay; and
(b) in all the circumstances it would be fair and equitable to extend time

In exercising the discretion, significant questions will be:

(i) the magnitude of the delay;
(ii) the reasons for it;
(iii) any prejudice suffered in consequence;
(iv) the strength of the appellant’s case
(v) an overriding requirement to do what is just.

Flowing from the above authorities, it is plain clear that the grant of leave to extend time is not a mere formality. It will not be granted as a matter of course either.^[9]

In this case, the details may appear intricate, yet they are relatively straightforward upon thorough examination. To begin with, the judgment in Betlan 66/2013 was issued on 6 February 2012, while the request for Certiorari order was submitted on 17 March 2020. This indicates a delay of eight years. As the authorities stated, since this is more than the time allowed, the applicant has the onus to justify the delay of 8 years.

In referencing Batee (supra) to explain the eight-year delay, the applicant's affidavit dated March 13, 2020, stated that they only learned about Betlan 66/2013 in 2020, when the second respondent initiated civil action against them for nuisance. During these proceedings, their counsel presented the minutes of Betlan 66/2013, which is when they first became aware of its existence and the registration of the second respondent on the land. Following their counsel's advice, they proceeded to file these proceedings.

Ms. Timeon, in her submission, acknowledged that the applicants had sought the help of other lawyers before 2020; however, none of those lawyers pursued this particular course of action. Consequently, the delay in the applicants' decision to follow the appropriate path can be attributed to the inaction or misguided actions of their previous legal representatives. While this may hold some truth, I cannot agree that the applicants bear no responsibility for the reasons outlined below.

Based on the record from prior proceedings, I consider the following points to be crucial to the matter at hand, which I will present in chronological order.:

1. Case No 844/94 and 204/97 – the applicant was registered on Maeka 682e/3i.
2. HCLA 22 of 2002 dated 15 November 2002 – the appeal was allowed. An order was issued to define the boundary between properties 682e and 682a, as well as to determine the areas to be occupied by Iataake (the current 2^nd respondent) and Manua (the applicant's husband) on property 682e. There is no appeal challenging the order that favors Iataake.
3. Bailan 66/2013 dated 6 February 2013 – the 2^nd respondent was registered on Maeka 682e/3o.
4. BD 66/2012 dated 5 June 2017 – the determination of the boundary was conducted in compliance with the directives outlined in HCLA 22 of 2002. The plaintiff, who is now the applicant, previously presented the same arguments to her worship that are currently being reiterated before me. The court's ruling favored the current 2^nd respondent, affirming his claim to the area he occupies. This decision is not subject to appeal.
5. BetCiv 86/2018 – the 2^nd respondent took proceedings against the applicants for nuisance. The judgment was entered against him.
6. HCCiv Appeal 2 of 2019 dated 15 November 2019 – the appeal (by the 2^nd respondent) against BetCiv 86/2018 was allowed, and an order was made for a retrial.

The records of the aforementioned proceedings clearly indicate that, despite the 2^nd respondent having registered his title only in 2013, it is undisputed that he has been residing on the land he claims as his since 2002 or earlier. This is substantiated by the High Court's judgment in HCLA 22 of 2002, which demonstrates that the applicants have always been aware of the 2^nd respondent's claim to a portion of the disputed land. The sole issue that requires resolution is the precise location of this portion, suggesting that the applicants did not contest his interest during the High Court proceedings. Furthermore, the applicants have not filed an appeal against this judgment.

Approximately 15 years following the enactment of HCLA 22 of 2002, a boundary determination was carried out against the 2^nd respondent in BD 66/2012. The actions taken by the applicants serve to reinforce the stance of the 2^nd respondent, indicating that their only contention lies with his boundaries. When the court ruled in favor of his boundaries, the applicants remained inactive once more.

In summary, Mr. Berina's argument holds merit, indicating that the applicants were aware of the 2^nd respondent's interest well before 2020. However, they did not take any steps to address this situation. In contrast, the 2^nd respondent promptly appealed after his application in Betlan 86/2018 was denied. He did not rest his claim.

Should I grant the application, I am concerned that it would provide the applicants with a chance to amend their positions dating back to 2002. They have had from 2002 to 2017 to attempt to displace the 2^nd respondent from his land, yet they have consistently been unsuccessful. What further actions could they take under these circumstances? I believe they have exhausted all possible avenues; it is time for them to accept the situation.

Taking all these elements into account, the only logical conclusion that any tribunal could reach is in line with the assertion made by the 2^nd respondent; specifically, that the applicant did not contest his interest but rather the delineation of his boundaries. After careful consideration, it is evident that the 2^nd respondent would incur the greatest irreparable harm if the time were to be extended.

In light of the above, I find that the applicant has not sufficiently justified the eight-year delay. Consequently, it would be unjust and inequitable to grant an extension of time, and therefore, the request for an extension is denied. The application is hereby dismissed.

Order accordingly, with costs to the 2^nd respondent to be taxed if not agreed.

Dated this 2^nd day of April 2025.

.............................................
HON JUSTICE A. T. AMTEN

PUISNE JUDGE

^[1] High Court (Civil Procedure) Rules, 1964
^[2] (12 April 2011) High Court Civil Case 1/2011 - unreported
^[3] (7 June 2011) High Court Civil Case No. 118/2010 - unreported
^[4] see P. Artemis Compilation "Privileged Warrants, Principles and Cases", p. 109 etc., Regarding the Application of A. Konstantinidis (2003) 1(B) A.A.D. 1298, Marewave Shipping & Trading Company Ltd (1992) 1(A) A.A.D. 116
^[5] [2019] KIHC 120; Miscellaneous Application 111 of 2019 (8 November 2019)
^[6] [2009] KICA 9; Civil Appeal 04 of 2009 (26 August 2009)
^[7] [2020] KIHC 24; Miscellaneous Application 72 of 2017 (9 October 2020)
^[8] [2006] KICA 17; Land Appeal 05 of 2005 (26 July 2006)
^[9] See above authorities