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Kabunare v Kabunare [2023] KIHC 43; Civil Review 1 of 2023; Miscellaneous Application 3A of 2023 (24 November 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL REVIEW 1 OF 2023
MISCELLANEOUS APPLICATION 3A OF 2023

BETWEEN:
MAURITAAKE KABUNARE WITH BROTHERS AND SISTERS
Applicant

AND:
MAIKA KABUNARE
Respondent

Date of Hearing: 15 NOVEMBER 2023
Date of Judgment: 24 NOVEMBER 2023

Appearances: Ms Botika Maitinnara for the Applicant
Ms. Taaira Timeon for the Respondent

R U L I N G

MisApp Numbered 3A.

1. At the hearing of this miscellaneous application, we realised that the registry clerk had not given this application a number. Counsel for the Respondent had written number three (3) on her written submission, but I'm afraid that's not right as another miscellaneous application has already been numbered ‘three.’ This other miscellaneous application also arises from the same substantive case as this one, which is High Court Civil Review 1 of 2023. Therefore, I have given this miscellaneous application number ‘3A’ to avoid confusion.

Application

2. The application before this court concerns the security for cost that the respondent in the main suit applies for, for defending the case. The amount claimed is $3000. The reasons for wanting the security for cost are stated in the affidavit of the applicant or respondent in the main suit, Mauritaake Kabunare.
3. The applicants had been taken to court twice before by the respondent or applicant in the main suit, Maika Kabunare, for the same matter, which is a dispute over the land Terekaba 772e. The respondent lost in these two cases, the first on 8 May 2020 and the second on 4 November 2022. This present case is the third time the respondent has taken the applicants to court. The applicants and respondent are brothers and sisters.
4. The case's background is that in 1988, their father, Kabunare, bought the land Terekaba 772e and registered himself over it in CN 64/88. When their father died, the children de-registered him in case number Betlan 427/09. They registered their names over the land as Motiata Kabunare with brothers and sisters. Motiata Kabunare is the eldest sibling.
5. In Biklan 487/18, the respondent, Maika Kabunare, took out a court proceeding to cancel the names of his brothers and sisters from the land on the ground that their registration done in Betlan 427/09 was a fraud because the land was bought from his money only, when he was working as a seaman. He lost this case on 8 May 2020 when the magistrate issued his decision.
6. In Betlan 420/20, he started his second case, but this time it was for the distribution of the land Terekaba 772e. The distribution he wanted was for him to have the whole land based on his claim that his siblings did not contribute to the price of the land. His case was also dismissed on 4 November 2022.
7. This present case is his third attempt to take the land, which is an application for an order of certiorari to quash the magistrate court decision in Betlan 427/09 for the same reason that his money was used for the purchase of the land and that he was not invited to attend Betlan 427/09 when his siblings de-registered their father and have all of them, including the respondent, registered over the land.

Security for Cost

8. The application for security for cost is supported by Order 65 Rule 4 of the High Court Civil Procedure Rules 1964, which states the following;

“In any cause or matter in which security for costs is required, the security shall be of such amount, and be given at such times, and in such manner and form, as the Court shall direct.”

9. The applicants submitted that it is very expensive for them to defend their case. To be dragged to the court by the respondent, Maika Kabunare, for the third time, the applicants seek security for their costs in case the respondent’s case fails, given that he had lost twice before. As deposed in paragraphs 7 to 11 of the applicant’s affidavit, $3000 is the amount they have spent to answer this third case. The cost involves engaging a private lawyer, attending the court, spending their time, and traveling to and from the court.
10. The respondent did not make his affidavit to respond to the issues raised in the applicant’s affidavit, mainly to prove that there is no risk of not paying the applicant’s cost. Instead, through his Counsel, the respondent submitted that $3000 is excessive and that he has no means to pay this amount. However, Counsel did not state how much is reasonable for the respondent.
11. There was also an argument for the respondent regarding the incorrect Order cited in the applicant’s Notice of Motion but this was raised after Counsel for the applicant had already made her submission and referred to the correct Order. Although I agree with the respondent on this point, I will accept that a correction has been made.
12. After considering the reasons for applying for the security for cost, I am convinced that the application must be granted as this is the third time the applicants have been dragged to court because of the same land and the same argument. They have explained that $3000 is their cost in defending this case. I have heard from Counsel for the respondent that her client could not afford to pay this amount; this indicates that the applicant would have difficulty recovering their cost if the respondent failed his case.
13. The respondent will not be prejudiced as the money will be returned to him if his case is successful.

Conclusion:

14. In light of the above reasons, this Court orders that the respondent must pay into the court the security for cost in the sum of $3000 before 19 January 2024 and apply for the hearing date.
    

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice