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Taretita v Timan [2025] KIHC 14; Miscellaneous Application 39 of 2021 (1 April 2025)

IN THE HIGH COURT OF KIRIBATI

MISCELLANEOUS APPLICATION 39 OF 2021 from
HIGH COURT LAND APPEAL 63 of 2015

BETWEEN: Tiim Taretita
Appellant

AND: Biritari Timan & Remota Karetau
Respondents

Date of Hearing: 18 March 2025
Date of Judgment: 1 April 2025

Appearances: Mr. Banuera Berina for the Appellant
Ms. Henty Grace Pine for the Respondents

JUDGMENT

The Case: Brief Facts

1. Background
   

1.1. This is an application for the extension of time for the appellant’s appeal on the Arorae Magistrates Court’s decision in CN 13/14. This decision is the same court's decision, made after reviewing its earlier decision on the same case in CN 12/11, approximately three years later. For the reasons explained, the filing of this appeal, on the other hand, is out of time by about 8 months.

1.2. By way of background, the matter involved in this case concerns the disposition of the Tetabuki plot in Arorae after the death of the owner, Tim Taua. The deceased died without children under the care of Tiim Taretita, but he had three siblings: two sisters and one brother. However, claiming that the late Taua had given him the disputed land plot while he was alive, along with the fact that he had been caring for him up until his death, Mr. Taretita initiated proceedings on his own at the Arorae Magistrates Court and registered himself over Tetabuki in place of the late Taua in CN 12/11.

1.3. Biritari Timan and Remota Karetau, the respondents in this case, are the grandsons of the late Taua’s two sisters. They appealed and sought correction of the 12/11 decision at the same Arorae Magistrates Court, claiming they had never been consulted by Mr. Taretita and had not given their consent for him to register himself as the owner of the land Tetabuki after the late Taua.

1.4. The revised decision of the same Arorae Magistrates Court on case no. 13/14 was made. The appellant is appealing this decision; however, due to an 8-month delay in filing his appeal, he is now applying to this Court for leave to extend the time within which to appeal, pursuant to Section 75 of the Magistrates Court Ordinance.

2.2. Evidence in support of the application

2.2.1. Submission for the applicants

2.2.1.1. To support their out-of-time application, the appellant’s Counsel relied on the Applicant’s affidavit, which provides reasons for the delay in filing their appeal. Counsel also relied on the 2006 case of Batee v. Trustee for Jehovah’s Witness Church from the Kiribati Court of Appeal. This case emphasises that although the High Court has the discretionary power to extend the time limit for appeals, the decision to grant or refuse an extension should be based on the overriding consideration of achieving justice for the parties involved. Additionally, as highlighted by this case authority, leave for an out-of-time application is typically not granted unless the applicant demonstrates i) an acceptable explanation for the delay, ii) the strength of the case and iii) prejudice to the respondent, but overall, under all circumstances, it would be fair and equitable to extend the time.

The appellant's position is summarized as follows:

1. The appellant needed to obtain legal advice, so he had to travel to Tarawa to consult a lawyer. The distance from Arorae to Tarawa is significant, and the cost of traveling to Tarawa is also considerable, so they had to raise money for the trip.
   
2. The respondents will not be prejudiced if leave for an extension of time is granted because they have not carried out any development on the land, which is the subject matter of the appeal, especially since the applicant has been in possession of the land for a long time.
   
3. The appeal has merit, which may lead this Court to reverse the decision of the lower court.
   

2.2.1.2. To demonstrate the merit of the appeal, the appellant referred to the case of Iererua v Kee (2004) KICA; Land Appeal 06 of 2003 (23 August 2004). Briefly, the case concerned the sale of the land, Terere, to Moti Kum Kee, which was confirmed by the Magistrates Court firstly in 1981 and secondly in 1982, when the remainder of the land was also sold to Moti Kum Kee. In 1996, the sale of the land was challenged in the Magistrates Court, but the claim was unsuccessful; the same occurred when this decision was appealed to the High Court in HCLA 69/96. In 1999, the disposition of the land plot sold in both 1981 and 1982 was again disputed in the Magistrates' Court, CN 101/99, as the claimants argued that their agreement should have been obtained prior to the sale. The Single Magistrate who heard the claim set aside the original sale confirmations for the land Terere; however, Moti Kum Kee appealed this decision, and his appeal was upheld by the High Court, based on the simple reason that “...one Magistrates Court has no jurisdiction to hear an appeal from or to review the decision of another Magistrates Court.” This High Court judgment was subsequently appealed to the Kiribati Court of Appeal, but the appeal was unsuccessful once again, as not only does the Magistrates Court lack jurisdiction to hear an appeal from or review the decision of another Magistrates Court, but, as clarified by the Court of Appeal, the Magistrates Court’s jurisdiction to hear a case ends once it has made its decision on the matter.

2.2.1.3. The appellant’s Counsel pointed out that, according to the Iererua v Kee case, the Arorae Magistrate Court has no jurisdiction to review its own decision previously made in CN 12/11. Furthermore, its jurisdiction over the case involving the appellant's registration for the Tetabuki plot ended on April 27, 2011, the date on which the decision for CN 12/11 was rendered. In other words, Counsel argued that the decision of the Arorae Magistrates Court in CN 13/14 is invalid and therefore lacks merit.

2.2.1.4. Moreover, the appellant’s Counsel explained that the issue regarding the rightful heirs of the late Taua’s property, including his disputed land, as well as the question of whether the Arorae Magistrates Court’s decision in 2011 erred in endorsing the registration of the appellant’s name over the land in question, are separate matters for which other avenues are available. Counsel stated that, “... this is not the end of the road for the respondents ...” However, for the proper adjudication of cases like the one on appeal, it is essential that the procedural requirements established by law, including case law, are adhered to and complied with accordingly.

2.2.1.5.
2.3. Evidence against the application

2.3.1. Submission for the Respondents

2.3.1.1. The appeal time limit and the requirements for extending the time for appeals, as stipulated in sections 75(2) and 75(3) of the Magistrates Court Ordinance, serve as the basis for the respondents’ opposition to the out-of-time application, which centers around the following main factors:

1. the length of the delay, approximately 8 months, is substantial;
2. the appellant’s explanation for the delay is unreasonable, as the claimed financial hardship could have been avoided if assistance from the Arorae Court Clerk and/or the Office of the Peoples Lawyer had been sought for the filing of the appeal and legal representation, respectively;
3. the appellant’s substantive case lacks merit, given that the appellant has no legal right to the land in dispute; and
4. the respondent would be prejudiced if leave were granted.
   

2.3.1.2. Counsel for the respondent cited the case of Marawa Irata v Attorney General IRO Ministry of Communications and Tourism Development to substantiate the basis of her party’s opposition to the out-of-time application. This case clearly explains that “A party who, knowing what to do, chose to buy time in order to find funds to pay for legal assistance before complying with the time required by law to appeal cannot be allowed to use such reason to obviate the legal requirements of an appeal. Non-compliance with the statutory time limit for appeal because of waiting to secure a lawyer is not an acceptable explanation for the delay in filing a notice of appeal”.

2.3.1.3. In response to the appellant’s argument about the merits of their appeal, the respondents argued that the Lands Court in 2011 made an error by registering the appellant’s name on the land because the appellant has no legitimate claim to the land, as there is no will transferring any interest in the land from Tim Taua to the appellant, and no other reason exists for the appellant to have sought to register his name over the land.

2.3.1.4. Furthermore, the respondents’ Counsel contended that permitting the appellant to maintain their registration over the disputed land would be detrimental to the respondents for the following main reasons:

1. The respondents inquired about their legal options as soon as they became aware that the appellant’s name had been registered over the land in dispute.
   
2. The respondents filed the application with the Magistrates' Court and raised a query before the magistrate, who proceeded with the case without indicating the proper procedures to be followed by the respondents.
   
3. Any error by the Lands Court in reviewing the 2011 decision was not the fault of the respondents; hence, their actions have not contributed to the appeal in any way. Instead, they were merely following the instructions of the Magistrate Court.
   
4. If the High Court deems that the Lands Court in CN 13/14 did not have the jurisdiction and authority to change the earlier decision in CN 12/11, then the respondents will be prejudiced because a) Tim Taua's name will not be registered on the title, and his next of kin with an interest in the land in dispute will be prejudiced, and b) the only avenue to change the decision will be to lodge an appeal with the High Court for the Lands Court's decision in CN 12/11 to be overturned.
   

2.3.1.5. In summary, the respondents argue that the appellants’ substantive case lacks merit (as they have no legal right to the land in dispute) and that the delay in filing their appeal is both substantial and unreasonable. This, along with the prejudicial acts that have affected or are likely to affect them due to the 12/11 decision, means that the applicant’s application for an extension of time must, therefore, be declined.

3. This Court Findings

3.1. Following is a summary of this Court’s findings on the submissions made by both parties on the out-of-time application:

1. The filing of the appellant’s appeal is delayed by 8 months – a period that exceeds the time limit set in the Magistrates Court Ordinance.
   
2. Section 75(3) of the Magistrates' Court Ordinance states that the High Court may, at any time, enlarge the prescribed time of limitation for appeals on land causes and matters.
   
3. The 2006 Batee v Trustee for Jehovah’s Witness Kiribati Court of Appeal case clarifies that while the granting and refusal of the out-of-time application is at the discretion of the High Court, the overriding requirement is to do what is just or what the High Court considers, in all circumstances, to be fair and equitable.
   
4. The 2012 Kiribati High Court case of Marawa Irata v. Attorney General IRO Ministry of Communications and Tourism Development, cited by the respondents’ Counsel, underscores that substantially exceeding and thereby obviating the time limit prescribed by the applicable law merely to secure the funds necessary for hiring legal assistance in one’s case is not an acceptable justification.
   
5. While the appellant refers to the Arorae Magistrates Court’s lack of jurisdiction to review its earlier decision in discussing the merits of his substantive appeal, the respondents, on the other hand, refer to the appellant's lack of legal right of ownership to the disputed land, thereby supporting their argument that the appellant’s appeal lacks merit.
   

Summary

3.2.1. Based on these key findings, this Court concludes that despite the delay, there is enough evidence to establish the strength of the appeal on the issue of whether the magistrate court has jurisdiction to review its own decision. The respondent would not be prejudiced if an extension of time is allowed.

3.2.2. For the above-mentioned reasons, the out-of-time application is hereby granted.

Order accordingly

THE HON. TEITIRO SEMILOTA MAATE MOANIBA
Chief Justice

TITAN TOAKAI RITETI MANINRAKA
Land Appeal Magistrate Land Appeal Magistrate