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Moone v Ioera [2017] KIHC 15; Civil Case 34 of 2016 (22 February 2017)

IN THE HIGH COURT OF KIRIBATI 2016

CIVIL CASE NO. 34 OF 2016

[KIRARENTI & TANIMARAWA MOONE APPLICANTS
[
BETWEEN [AND
[
[MAURI IOERA 1^ST RESPONDENT
[MAGISTRATES’ COURT SOUTH TARAWA 2^ND RESPONDENT
Before: The Hon Chief Justice Sir John Muria

28 October 2016

Mr Teetua Tewera for the Applicants
Mr Banuera Berina for the 1^st Respondent

JUDGMENT

Muria, CJ: The applicants in this case sought to challenge the decision of the Magistrates’ Court in CN 44/06, given on 25 April 2006 by way of certiorari. The applicants are certainly out of time and they need extension of time to seek leave to bring the certiorari proceedings. They now apply for an extension to seek leave to issue certiorari proceedings.

2. The case CN 44/06 was a boundary determination case between
Mauri Ioera and Iotita Moone. In addition to Iotita Moone, also present at the hearing in that case were Kaake Moone, Maria Moone and Nei Tokantetaake (wife of Angabeia). Kaake, Maria and Tokantetaake are Iotita’s brothers and sisters.

3. It is 10 years ago that the decision in CN 44/06 was made. Kirarenti Moone lived in Betio at the time of the case, in the same house with her brother and his wife who was present during the hearing of CN 44/06. Yet Kirarenti Moone stated in her affidavit that her two brothers and sister, and her sister-in-law, Tokantetaake have never mentioned to her about the case CN 44/06. Mr Berina, on the other hand, submitted that it is not possible for the applicants not to know of the Court’s decision in CN 44/06. The applicants’ brother and sister and
sister-in-law attended the case. They knew of the Court’s decision. It is not reasonable to suggest that the members of the same family who attended the case would conceal from or did not talk about the case with the applicants at all for the last 10 years.

4. The rule governing a case such as the present one is O.61 r.3 of the High Court (Civil Procedure) Rules 1964 which states:

“3. Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any written law; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired”.

5. The time period for seeking leave is six months. The Court, however, has discretion to extend time after the lapse of six months. In this case the delay is 10 years. The onus is on the applicants to show good reason justifying a grant of extension of time after 10 years’ delay.

6. In Toaia Tenangibo & Ors –v- Matou Tabora & Ors (12 April 2011) High Court Civil Case 1/2011 this Court, dealing with an application for extension of time to seek leave to bring certiorari proceedings said after referring to O.61 r.3:

“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”.

7. Similar concern of the need to establish the justification for extension of time to seek leave to issue certiorari proceedings had also been expressed in Marawa Eritane –v- Ioteba Rubeaia & Tewera Turabu (7 June 2011) High Court Civil Case No. 118/2010. The Court said in that case:

“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”.

8. The applicant, Kirarenti Moone, deposed to in her affidavit that she knew nothing of the case. In paragraphs 5, 6, 7 and 8 she states:

“5. That in CN 44/06, my brothers namely Iotia and Kaake were there or present in the proceeding including my sister Maria and my other brother, Angabeia’s wife namely Tokantetaake”.

“6. That I was in Betio around that time in 2006 and I stayed with my brother in Betio namely Angabeia whose the husband of Tokantetaake who was present in the proceeding in CN 44/06”.

“7. That I was more surprised that my sister-in-law was there in the proceeding and why did not she inform me about it, my brother was at overseas that time as a seafarer. I was staying with my brother and the wife and I did not understand why she did not inform me anything about the proceeding in CN 44/06”.

“8. That I am also angry and surprised to realize that my real brothers, Iotita and Kaake and my sister Maria, did not even bother to inform me about the proceeding took place in CN 44/06”.

9. The other applicant, Tanimarawa Moone in her affidavit in paragraph 5, 7 and 8:

“5. That I was in Tamana Island when the proceeding took place in 2006. The reason was that my husband is from Tamana and we went there to live there and then work there.

7. That every year before my husband came back from overseas, I then flew from Tamana Island to Tarawa to meet him and that he always came back around September or November every year.

8. That every time I came to Tarawa, I always stayed with my husband’s relatives in Betio but I also had time to meet my brothers and sisters at their respective places but no one ever told me about the proceeding in CN 44/06”.

10. The Court finds it very difficult to understand why the applicants’ two brothers and their sister-in-law would conceal CN 44/06 and its resultant decision from the applicants.

11. If the present applicants are seriously unhappy that their two brothers and sister-in-law sold the land to the respondent and concealed the transaction from them, then there is every reason for the applicants to join them in this case as parties. They chose not to do that. The applicants must therefore rely on the strength of their own case.

12. Put together the circumstances of this case, the Court cannot be satisfied that the applicants have discharged the burden that lies on them of showing good reason to justify extension of time after 10 years to seek leave to bring certiorari proceedings. The application for extension of time is refused.

13. Even if extension of time is granted, the Court would have refused leave also for the reasons stated in this judgment.

ORDER: Application for extension of time to seek leave to bring certiorari proceedings is refused with costs to the first respondent to be taxed if not agreed.

Dated the 22^nd day of February 2017

SIR JOHN MURIA
Chief Justice