Barabo v Kiribi [2004] KICA 14; Land Appeal 01 of 2004 (23 August 2004)

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

Land Appeal No 1 of 2004

BETWEEN

UEUE BARABO
BENEUA BARABO
APPLICANTS

AND

RIRI KIRIBI
RESPONDENT

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Taoing Taoaba for appellant
Aomoro Amten for respondent

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

JUDGMENT OF THE COURT

Reference to the Court of Appeal

[1] By order dated 11 August 2004 the High Court reserved for consideration by this Court the following question of law:

[i] Whether or not, despite the acting Chief Registrar's letter of 4 June 1990, the decision in HCLA 51/88 stands?

[ii] Whether or not Maxwell CJ effectively quashed the decision in HCLA 51/88 without reference to the magistrates who had participated with him in that decision as required under s 76 (1) of the Magistrates Court Ordinance?

Background

[2] On 27 June 1988 the appeal HCLA 51/88 came before the High Court sitting in its land jurisdiction, consisting of Maxwell CJ and two magistrates. It was an appeal from an eviction order made by the Lands Court Magistrates on 17 April 1988 against Nei Ariti Naruai, the mother of the respondent . The applicant for the eviction order was Atanimatang Tearoua, the grandfather of the applicants. For reasons set out in their judgment of 14 July 1988, the appeal was dismissed with costs to be taxed.

[3] On 4 June 1990 the acting Chief Registrar wrote a letter to Atanimatang Tearoua in these terms:

"YOUR EVICTION ORDER AGAINST N. ARITI NARUAI

I refer to our recent discussion with the Hon Chief Justice. In that discussion you will recall the that the Chief Justice pointed out that you no longer can evict N. Ariti Naruai on the ground that you do not have the right over the land in question as it is leased by the Government.

I regret to advise therefore, that the Chief Justice has set aside his decision in 51/88 on the ground that he did not have the full facts at the time he made the decision.

Please let me know if you have any queries."

[4] An affidavit has been filed by Kiribi Barima, the husband of the respondent. He has produced what appears to be a judgment of Muhammad J in HCLA 169/90, although what is produced is undated and unsigned. It is not an easy judgment to follow. No other material relating to this appeal has been produced. The respondent and another were the appellants and Atanimatang was the respondent. According to Kiribi Barima, there was a hearing in which he appeared for his mother in law and a Peoples Lawyer appeared for Atanimatangi. The judgment of Muhammad J indicated that the Judge considered that he had jurisdiction to overturn the judgment of Maxwell CJ. Whatever was the appeal, it was dismissed.

[5] Counsel for the applicants submitted in this Court that the decision in HCLA 196/90 effectively quashed the decision in HCLA 51/88. That does not appear from the judgment to be correct. But if that is what Muhammad J purported to do, he erred as a High Court judge cannot quash the decision of another High Court judge. On the material before us, it appears that what occurred on HCLA 169/90 is not now relevant.

[6] On 19 November 2003 in CN370/03 the applicants applied to the Magistrates Court for an order evicting the respondent. The applicants relied on the judgment in HCLA 51/88. The respondent relied on the letter from the acting Chief Registrar of 4 June 1990. The Single Magistrate refused the eviction order sought, apparently on the ground that, because of the letter of 4 June 1990, the eviction order made in HCLA 52/88 no longer applied.

[7] From that decision the applicants appealed to the High Court. It was on the hearing of that appeal that the High Court reserved for consideration by this Court the questions of law set out above.

Question 1

[8] The answer to this question must be that the decision of the High Court in HCLA 51/88 remains in full force and effect. Whatever gave rise to the letter from the acting Chief Registrar of 9 June 1990, the letter cannot have the effect of overturning or revoking that decision. Once the decision had been delivered, it can be reversed only on appeal.

Question 2

[9] Section 76 (1) provides:

76. (1) Where the High Court sits to hear and determine any appeal under the provisions of section 75 of this Ordinance the Court shall consist of the Chief Justice or a judge together with at least two magistrates appointed by the Chief Justice from among the magistrates whose names appear on the Lands Magistrates Appeals Panel.

[10] The Court that delivered the judgment of 14 July 1988 in HCLA 51/88 was correctly constituted, consisting as it did of the Chief Justice and two magistrates.

[11] Even if, contrary to the answer we have given to question 1, it were competent for the Court to revoke the decision in HCLA 51/88 it had already given, clearly that could only be done by a Court constituted in accordance with s 76 (1). The only information available about what occurred that resulted in the letter from the acting Chief Registrar of 4 June 1990 is the contents of the letter itself. It appears from those contents that Maxwell CJ was purporting to act sitting alone, not with two magistrates as required by the section. For that reason also, the decision purported to be conveyed by the letter can have no effect.

Result

[12] We determine the questions of law in the manner set out above. In the circumstances we make no order as to costs.

Hardie Boys JA
Tompkins JA
Fisher JA