Tabaua v Kaia [2004] KICA 12; Land Appeal 03 of 2004 (23 August 2004)

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

Land Appeal 3 of 2004

Between

ROOTE TABAUA & ORS
Appellants

And

KARINAWA KAIA & ORS
Respondents

Coram: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: A Amten for Appellants
B Berina for Respondents

Date of Hearing: 20 August 2004
Date of Judgment: 23 August 2004

JUDGMENT OF THE COURT

[1] The appellants appeal from a High Court decision of 1 April 2004. By that decision the High Court upheld a Magistrates' Court decision of 13 January 2003 in case C7/2003. In case C72003 the Magistrates' Court declined to interfere with its earlier decision in case C3/01 fixing the boundaries of land owned by the Respondents.

The background

[2] The appellants owned land at Bonriki. They shared a common boundary with land owned by the respondents.

[3] In 2001 the respondents brought proceedings in the Magistrates' Court under number C3/01. The purpose was to determine the boundaries of the respondents' land. For some reason the appellants were not made parties to those proceedings. The Magistrates' Court gave a decision which reduced the area of land previously thought to belong to the appellants.

[4] The appellants had no knowledge of this at the time. They did not discover the effect of the boundary determination in C3/01, and consequent reduction in their land, until nearly two years later. Their response was to issue their own proceedings C7/2003 in an attempt to revisit the original boundary determination. Not surprisingly, the Magistrates' Court decided that it had no jurisdiction to overturn the decision which had been given two years earlier. The Magistrate in C7/2003 correctly pointed out that only the High Court could review that decision.

[5] However instead of bringing proceedings to review the original decision, the appellants appealed from the decision in C7/2003. On appeal the High Court repeated what the Magistrates' Court had said in C7/2003. The proper course was to bring fresh proceedings asking the High Court for a review of the decision in C3/01. As there was no jurisdiction to deal with the matter by way of appeal, the appeal was dismissed.

[6] The appellants decided to press on with another appeal rather than bring proceedings to have the original decision reviewed by the High Court. The matter therefore comes before this Court as a second appeal from the decision in C7/2003.

This appeal

[7] In this Court Mr Amten pointed out that his clients ought have been made parties to the original proceedings C3/01. We have no difficulty in accepting this. As a general principle natural justice demands that where a person's interests may be affected by the outcome of proceedings they should be given an opportunity to be heard in those proceedings. If that principle is not observed, the decision in question will normally be open to challenge in the High Court.

[8] Where a misunderstanding appears to have arisen in this case is that instead of bringing proceedings to review the original decision, the appellants have persistently followed the path of appealing, first to the High Court and now to this Court.

[9] The course so far taken by the appellants may have stemmed from a concern that more than 12 months had elapsed from the original decision by the time they heard about it. That lapse of time would pose an obstacle if the appellants had had to rely on s 81 of the Magistrates' Court Ordinance. Section 81(4) imposes a 12 months limitation period without discretionary power to extend the time.

[10] However, as we noted in another decision of today's date (Uriam and others v Uriam Land Appeal 2/2004) proceedings for an order of certiorari may well represent an independent basis for reviewing the decision of a Kiribati inferior court. It may be arguable that s 81 of the Magistrates' Courts Ordinance is an enabling provision which does not diminish the inherent power of the superior courts to supervise the activities of inferior courts through prerogative writs. The provision for prerogative writs in Order 61 of the High Court (Civil Procedure) Rules 1964 might be thought to reinforce that view. Further, R.S.C. O.64, r.5 of the Rules may well contain an unfettered power to extend the prima facie limitation period of six months for the issue of such proceedings imposed in the first instance by R.S.C. O.61, r.3. However not having heard argument on the point, we think it better not to express any final view on it in the present proceedings.

Conclusions

[11] We respectfully agree with the High Court that the Magistrates' Court in C7/2003 had no power to hear any appeal from, or review of, the decision which it had already given in C3/01. Any challenge to the original proceeding had to be mounted in the form of a review by the High Court. If proceedings seeking an order of certiorari are now issued it will be for the High Court to decide after full argument whether such jurisdiction exists and, if so, whether it should be exercised in favour of the appellants in the present case.

[12] The appeal is dismissed with costs to the respondents as taxed or agreed.

Hardie Boys JA
Tompkins JA
Fisher JA