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Taberu v Redfern [2002] KICA 1; Land Appeal 01 of 2001 (12 August 2002)

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

Land Appeal No. 1 of 2001

BETWEEN:

NEI TAARA TABERU
Appellant

AND:

OBETA REDFERN
Respondent

Coram: Casey JA
Hardie Boys JA
Tompkins JA

Counsel: Toaing Taoaba for appellant
Aomoro Amten for respondent

Date of hearing: 8 August 2002
Date of judgment: 12 August 2002

JUDGMENT OF THE COURT

Introduction

[1] The appellant applied to the High Court for leave to appeal out of time from the decision of the North Tarawa Magistrates' Court delivered on 16 February 1983 under number 5/83. The High Court, consisting of the Chief Justice and two magistrates, in a decision delivered on 10 April 2001, refused leave. The appellant has applied for leave to appeal from that decision. As the decision in the High Court was on an interlocutory application, the leave of this court is required: Court of Appeal Act s 10 (2) (f).

[2] The appellant accepts that this was an appeal from the exercise of a discretion. This court will only interfere with an exercise of a discretion if it can be shown that the High Court considered any irrelevant matter, left out of account any relevant matter, erred in law, or applied any wrong principle: Re F (a minor) [1976] 1 All ER 417, Bridge LJ at 439.

The sequence of events

[3] The following is summary of the relevant events:

• The decision in the Magistrates' Court in 5/83 was delivered on 16 February 1983.
  
• The time for presenting a petition to appeal expired 3 months later, i.e. on 16 May 1983. The High Court may, at any time, enlarge that period of limitation: Magistrates' Courts Act, s 75 (2) and (3).
  
• By a letter dated 20 September 1988, a relative of the appellant wrote to the then Chief Justice a letter that can be taken as an informal notice of an application for leave to appeal from the decision in 5/83. That letter has endorsed on it a note in what the High Court held was the handwriting of Maxwell CJ reading "Leave Granted". However, the High Court considered that that notation was not a valid grant of an application for leave to appeal.
  
• Sometime early in the 1990's, according to an affidavit filed by her husband, the appellant died.
  
• The appellant's husband has deposed that there were many adjournments of the appeal in the late 1980's.
  
• The husband has deposed that he attended what he describes as an appeal in 1993. The respondent sought and was granted an adjournment. It was following that hearing that, on 25 June 1993, he gave a notice to the High Court entitled "Grounds of Appeal" and setting out reasons why the writer was dissatisfied with the decision in 5/83.
  
• By the time of the hearing in the High Court the respondent had also died. The date of his death is not apparent from the case on appeal.
  

[4] If the letter of 20 September 1988 is taken as a notice of application for leave to appeal out of time, it was filed some five years after the time for appealing had expired. A further five years passed before the "Grounds of Appeal" were filed on 25 June 1993. A further eight years passed before the application for leave came before the High Court on 10 April 2001. The total period of delay from the decision in 5/83 to the hearing in the High Court was approximately 18 years.

The judgment in the High Court.

[5] The following are the reasons the High Court gave for declining the application for leave:

"Nothing has been done since 1993 by the parties or by the Court. So far as the Court is concerned it looks as though the file was put away and forgotten. It was found and brought to this sitting of the Court on North Tarawa because Mr Allen's client heard on the wireless of the sitting.

The administrators over the years of the Court are partly responsible for this lamentable delay but so is the appellant. The court sat on North Tarawa in 1996 but Mr Allen's client says he did not know of the sitting. There is a long delay to explain.

Even more significant is the time which has elapsed since the original hearing. Both the then owner, the mother-in-law of Mr Allen's client, his wife, the daughter of the then owner and the respondent are dead. It was only by chance that a daughter of the respondent was in court in connection with another matter and so could instruct Mr Amten. Mr Allen urges us to give leave and to allow the appeal because on the face of the record his client's mother-in-law was not notified of the 1983 proceedings. It in fact looks as though she was not notified. If an appeal were allowed all we could do would be to send the case back for rehearing. That would be to present the magistrates with a near impossible task of deciding matters of fact when many of those concerned are already dead.

All this apart from the question which has not been argued – as to whether Mr Allen's client has standing to conduct these proceedings.

Because first of the delay of at least 8 years by the appellant and her heirs in doing anything to prosecute the appeal and secondly because of the near impossibility now of actually getting at the facts, we refuse leave to appeal."

The grounds of the appeal

[6] The principal ground advanced in support of the application for leave is founded on the record of what occurred when the decision 5/83 was given. The following is the translation of that record:

North Tarawa Magistrates' Court

16 February 1983

Case 5/83

Obeta Redfern
v.
Nei Taaraa
(absent)

P/M: Ruaia

M: Tawita

M: Teniou

M: Tamuera

M: Itibaua

Claim:

Registration of my name on half of their land – N. Taara, N. B'aroo and N. Tooreka.

Obeta R.:

My mother is Nei Toorreka, and their land on which they are settled with their sisters is Temoaniwae. Half of this land has been given by Nei Taara to Bukitaake Naabuti. Nei Baaro said in earlier proceedings that I was to have that share, together with the issues of Nei Tooreka, who is our mother.

Court finding:

The registration appear to be in order, as Nei Taara has given away half of the length of the land, so she has nothing to complain about.

Judgment:

Title to half of Temoaniwae 209e/2 – that title under the name of Nei Taaraa T – will be cancelled, and the names of Obeta Redfern with the issues of Nei Tooreka Taberu will be registered.

(Signed)

Ruaia Benson

[7] The applicant submits that this decision was obviously defective as it was given in the absence of the appellant. Further no explanation was made to the court as to how the "gift" was to be effected. The failure to give notice within time was in part due to the original error in making the decision in the absence of the appellant, so she was unaware of it. The appellant further points to the endorsement of the former Chief Justice on the letter or 20 December 1988, requesting the record to be prepared. That it was not was probably the responsibility of the court.

Conclusion

[8] We do not find any proper grounds for interfering in the manner in which the High Court exercised its discretion. All the matters to which the appellant referred in this court were before the High Court. It did not take into account any irrelevant matter, nor fail to take into account any relevant matter. No error of law is involved.

[9] We agree with the High Court that the only possible course would be to refer the matter back to the Magistrates' Court for a rehearing. But with all the parties who appeared at that hearing now dead it would not be possible for the Magistrates' Court to rehear the issues in a fair and just way. The evidence on which the Magistrate made his decision is no longer available. The delay that has occurred has just been too great.

[10] This case is a good illustration of the very reason why limits on the time for appealing are imposed. While the court has jurisdiction to extend that time, it should only do so where it can be satisfied that no injustice will result. Where, as here, the delay has been excessive, for whatever reason, the risk of an injustice becomes real.

The result

[11] The application for leave to appeal is dismissed. The respondent is entitled to costs to be agreed or taxed.

Casey JA
Hardie Boys JA
Tompkins JA