IN THE HIGH COURT OF KIRIBATI 2019

CIVIL CASE NO. 110 OF 2015

		[IAKOBA TAMOAIETA				APPLICANT
		[
BETWEEN	[AND
		[
		[LAVINIA JACOB TEEM				1ST RESPONDENT
		[MARETA KATARAKE				2ND RESPONDENT

Before:	The Hon Chief Justice Sir John Muria

20 September 2019

Ms Maere Kirata for Applicant
Mr Banuera Berina for the 1st Respondent

JUDGMENT

Muria, CJ:	The applicant is seeking an extension of time to apply for leave to issue certiorari proceedings in this case.  The applicant is seeking extension of time to challenge the decision of the Court given on 20 July 1999.

Brief background

2.	The case is concerned with the land Ambo 743 e/i.  Some time in July 1999, the second respondent sold her land Ambo 743 e/i to the first respondent.  To cement that sale, the second respondent took the matter to the Magistrates’ Court in CN 304/99 to have the transfer done and for the first respondent to register her name over the land.

3.	The case 304/99 was heard by the Single Magistrate on 8 July 1999 for the registration of the first respondent’s name over the land Ambo 743 e/i.  In addition to the second respondent, her two other sisters, Tooti Katarake and Tiriam Katarake, also appeared in Court and gave evidence to support the second respondent transferring the land to the first respondent.

4.	The case CN 304/99 did not conclude on 8 July 1999.  It was adjourned to another date to enable the second respondent’s child, Titaku Tamoaiea, who was then in Kiritimati Island to give her consent to the sale and transfer of the land to the first respondent.

5.	The case CN 304/99 resumed on 20 July 1999.  Both the first respondent and second respondent were present.  The consent from the second respondent’s child, Titaku, was received into Court.  It was in writing sent by Titaku by fax from Kiritimati Island.  Having received the consent, the Single Magistrate made the order on 20 July 1999 that the first respondent be registered as the owner of the land Ambo 743 e/i.

6.	For 16 years, the first respondent has enjoyed peaceful title over the land Ambo 743 e/i which she bought from the second respondent.  She has expended money to develop the land with no complaints from the applicant or his sister Titaku.  There has never been any complaint from the second respondent.

Applicant’s case

7.	The applicant’s case is that he was not informed of the sale of the land by his mother (second respondent) to the applicant.  He claims that his mother did not disclose to the first respondent that he (applicant) was also her child from whom consent should also be sought.  For that reason, the sale and registration of the land in the first respondent’s name should be quashed.

8.	As to the delay in bringing the case, the applicant said that he was not aware of the sale of land to the first respondent until 2013.  He said also that as soon as he knew about it, he took steps to rectify the situation.

First respondent’s case

9.	The first respondent is that she bought the land lawfully from the second respondent.  At the time of the sale, the second respondent never told her that the applicant was her other child.  She only knew then from the second respondent that her only child was Titaku who was then living in Kiritimati Island and hence, the need to obtain the consent of Titaku.

Delay

10.	The issue to be determined in this application is whether extension of time should be allowed to the applicant to seek leave to bring certiorari proceedings to challenge the decision of the Magistrates’ Court given on 20 July 1999.  The grant of an extension of time is always at the discretion of the Court.  See
 Batee –v- Trustee for Jehova’s Witness Church [2006] 	KICA 17; Land Appeal 05 of 2005 (26 July 2006); Eritane –v- Rubeia and Turabu [2011] KIHC 28; Civil Case 118 of 2010 (7 June 2011); Tannang –v- Temare [2012] KIHC 19; Civil Case 11 of 2012 (29 June 2012).

11.	Delay is one, but not the only, factor to be taken into account in exercising the discretion in a case of this nature.  However, as the Court of Appeal pointed out in Tabora –v- Uruatarawa [2009] KICA 9; Civil Appeal 04 of 2009 
(26 August 2009):

“Normally a delay of 17 years would be fatal to an application of this kind.  However the magnitude of the delay is only one of the relevant factors.  Others include the nature of the original invalidity which is now under challenge, the date on which the applicant first heard of the decision to be challenged, the steps taken by the applicant thereafter, the extent to which the delay may be attributable to lawyers, and the extent to which innocent third parties have taken steps in reliance upon the original decision before being advised of the challenge”.

12.	In the present case, the magnitude of the delay of 16 years cannot be easily brushed aside.  It is a very long delay and it is fatal to the applicant’s case unless the applicant can point to some unusual features of the case that justify a grant of extension of time despite the long delay of 16 years.

13.	In Tabora’s case, the delay of 17 years would have been fatal to the applicant’s case of extension of time, had it not been for the original invalidity of the transfer of the land by the first respondent to the second respondent.  The first respondent in that case had no title to the land in question, and as such he could not lawfully pass any title to the land to the second respondent.  So despite the magnitude of the delay in that case of 17 years, the Court exercised its discretion and grant extension of time.

14.	In our present case, there is no dispute that the second respondent had title to her land which she sold to the first respondent in 1999.  So there can be no question as to the validity of the transfer of the land Ambo 743 e/i from the second respondent to the first respondent.

15.	The applicant claimed that he first learned of the registration of the land in the first respondent’s name in 2013,  that is some 14 years later.  He confronted the second respondent with the Court Minutes of Case 304/99.  Apart from confronting his mother about the sale of the land to the first respondent, the applicant sought legal advice and he was advised to take legal action against the second respondent.  In his own evidence, the applicant decided not to take action against his mother, the second respondent, as “the idea of filing a criminal case against my mother is not appealing to me”.

16.	In 2014, the applicant again confronted his mother and sister (Titaku) about CN 304/99.  His sister responded to the effect that she gave her consent assuming the applicant had also given his consent.  As it turned out the applicant did not give his consent and as he said, he was not aware of the sale by the second respondent to the first respondent of the land Ambo 743 e/i.

17.	It was in 2015 that the applicant decided to bring proceedings to challenge the decision of the Court in CN 304/99.  This was 16 years later after the first respondent bought the land from the second respondent.  The applicant might have only known about the sale of the land by the second respondent to the first respondent in 2013.  But his sister, Titaku, who now joins force with him and supported him in this application took part in the sale transaction in 1999 by giving her consent.  She knew all along about the sale.  She knew that her brother lived in North Tarawa.  She probably did not alert the applicant about the action of their mother in selling the land to the first respondent.  Yet, neither the applicant nor his sister did anything or complain until 2015, some 16 years later.  At the very least, Titaku could have done something such as informing her brother about the sale by their mother to the first respondent of the land.  The inaction by the applicant and his sister in the combination of 16 years must be counted against the applicant’s case in the present proceedings.  There is no acceptable explanation for the delay of 16 years in this case.

18.	There is no suggestion whatsoever in this case that the first respondent was put on notice that the sale of the land to her by the second respondent was objectionable by anybody including the applicant or Titaku.  The first respondent was therefore a purchaser for value in good faith.  She paid $2,000.00 for the land.  The first respondent proceeded to expend money to develop the land after she paid for it.

19.	The Court record showed that in CN 304/99, the Single Magistrate asked the second respondent:

“Q.	Do you have children?
A.	Yes, only one child in Kiritimati Island”.

20.	The second respondent’s two sisters, Nei Tooti Katarake and 
Nei Tiriam Katarake, who were both present at the hearing, gave evidence in support of the second respondent.  Neither of them mentioned anything about the second respondent having more than one child.

21.	Throughout these proceedings and even after the applicant confronted her about the sale of the land to the first respondent, there is no evidence of the second respondent’s reaction to the applicant’s complaint about the sale.  There is also no evidence of any response from her about the claim that she has another child who is now the applicant, apart from the “one in Kiritimati Island”.  She neither accepted nor denied the suggestion that the applicant is her son, her other child apart from the “one in Kiritimati Island”.  She deliberately kept quiet and away from the present proceedings giving a strong inference that when she said in CN 304/99 that she has “only one child in Kiritimati Island” she was not telling the truth.  To undo the land transaction between the second respondent and the first respondent because of the second respondent’s fraudulent conduct would mean restoring the title to the land back to the second respondent.  That cannot be right.  The second respondent cannot be allowed to profit from her fraudulent action.

22.	However, the only evidence before the Court that the applicant is the second respondent’s son comes from the applicant himself, supported by a copy of the Birth Register.  There is also evidence to show that the applicant himself, at the age of 45 years, caused his name to be registered at the Birth Register Office, as a child of the second respondent.  The second respondent neither accepted nor denied the suggestion that the applicant is her son.  We will not know for certain unless we hear from the second respondent.  Any contemplation of applying section 14 of the Lands Code cannot succeed unless certainty is established with the evidence from the second respondent.

23.	On the evidence before the Court, the sale of the land Ambo 743e/i by the second respondent to the first respondent cannot be disturbed.  The first respondent lawfully bought the land from the second respondent and validly registered it in her name.  It is now too late in the day to undo the valid land transaction between the second respondent and the first respondent which took place 16 years ago.

24.	For all the above reasons, it would not be proper to grant extension of time to the applicant to seek leave to bring certiorari proceedings.  The applicant’s application for extension of time is dismissed.

25.	The first respondent is entitled to costs of these proceedings.  I order the applicant to pay the costs to the first respondent, to be taxed if not agreed.

Dated the 11th day of October 2019

SIR JOHN MURIA
Chief Justice