Kauongo v Ria [2001] KICA 2; Land Appeal 06 of 2000 (3 April 2001)

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

Land Appeal No. 6 of 2000

BETWEEN:

TEBUTO KAUONGO
BURE KAUONGO
KATARINA KAUONGO
BOUTAAKE KABIRIERA
Appellants

AND:

RUONAMAKIN RIA
MAKIN BARAN
NEI MARIA NENEIA
Respondents

Before: Casey JA
Bisson JA
Tompkins JA

Counsel: T Teiwaki for the appellants
B Berina for the respondents

Date of Hearing: 3 April 2001
Date of Judgment: 3 April 2001

JUDGMENT OF THE COURT

[1] The appellant has appealed against the judgment of the High Court delivered on 28 April 2000 in which the Court held that a Magistrates' Court has no jurisdiction to hear again or review a matter which has been heard and decided in another court of equal jurisdiction. The ground of the appeal is that the High Court erred in law and in fact in deciding that the Single Magistrate had no jurisdiction to re-hear case No. A265/98 when in law and in the circumstances he had.

[2] On 1 April 1999 an application came before a Single Magistrate Tabakitoa apparently so we are informed from the Bar on an oral application. It is recorded that the matter to be determined was:

"re-hearing of the CNA 265/98 as the issues of one of the respondents of landowner namely Nei Maria Neneia were not invited and they were not aware of the registration".

[3] At the commencement of the hearing counsel for the respondent submitted that the case for the defendant had already been decided and the case was complete and that there are only a few things that have a case re-opened. There were submissions by counsel on that preliminary point.

[4] In a decision delivered on 22 June 1999 the Magistrate decided that, on the authority of the Court of Appeal decision Arimiti vs Mabubu and Others, that Court had power to re-hear the earlier application. The decision was that, for the reasons set out in the decision, the Court accepts the re-hearing of that case. It was against that decision that the appellants sought to appeal in the High Court.

[5] The decision relied on land appeal No. 3/92 Tebukei vs Mabubu Taramarawa, Tekateke Naua & Others was a decision delivered on 2 December 1992. It was an application for leave to appeal out of time. The applicant was not a party to the proceedings the decision in which is the subject of her appeal. The Court of Appeal said this:

Nei Arimiti says that she is the owner of the land which was the subject of those proceedings. If she is so advised her only course is to bring separate proceedings against the parties to the first proceedings to establish that she is the owner of the land and to seek an injunction to prevent the destruction of the house pending determination of those proceedings but it is not something she can raise by way of appeal.

[6] That case was considered by the Court of Appeal in land appeal No. 1 of 1993 Nei Ereataai Nataua and anor v Betero Kaitangare for issues of Nei Bungea. Judgment in that case was delivered on 4 March 1994. The Court referred to the earlier decision in land appeal No. 3 of 1992. The Court remarked that the decision on that case was distinguishable because in that case no question of registration had arisen and the Court pointed out that the appellant could bring separate proceedings to establish ownership of the land. It went on to say that if in those proceedings it did appear that the defendant was registered as owner of the native lands the defendant's title would be indefeasible.

[7] What is clear is that neither of those decisions of the Court of Appeal are authority for the proposition that the Magistrates' Court has jurisdiction to re-hear a decision already made in another application. Indeed Mr Teiwaki for the appellant acknowledged that was so. It was his submission that the problem has arisen because of a difficulty in translation. He submitted that when the words "re-hear" or "review'' were used what was really meant was "to bring fresh proceedings" pursuant to Land Appeal No. 3 of 1992. We are not in a position to judge whether that is so or not. This Court can determine the appeal before it only on the record as it appears. It is perfectly plain from that record that what was before the Magistrate's Court was an application to re-hear the earlier case and what the Magistrates' Court decided was that it would re-hear it.

[8] On the basis of the record, we have no doubt that the decision of the High Court declining to entertain the appeal on the ground that the Magistrate's Court had no jurisdiction to re-hear the earlier application was correct. As the Court of Appeal observed in Land Appeal No. 3 of 1992, the appellants in the present case can bring fresh proceedings. Whether or not those proceedings will succeed is a different matter on which, of course, we express no opinion.

[9] For the reasons we have expressed, the appeal is dismissed.

Casey JA
Bisson JA
Tompkins JA