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

Land Appeal 1 of 2005

BETWEEN:

KARINAWA ATANTA
IOANNA BWAKATI
TOOTA TAAKE
TOKARAKE IENIBWEBWE
Appellants

AND:

NEI ROOTE TABAUA
Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for Appellants: Banuera Berina
Counsel for Respondent: Aomoro Amten

Date of Hearing: 4 August 2005
Date of Judgment: 8 August 2005

JUDGMENT OF THE COURT

Introduction

1.	This is an appeal against a decision of the High Court of 29 December 2004 (HCLA 11/04) quashing the land boundary decision of a Single Magistrate (CN 3/01) given on 5 March 2001. The Magistrate’s decision in CN3/01 had adversely affected the interests of the respondent in proceedings to which she had never been made a party.

Background

2.	The respondent represents herself and others but it will be convenient to refer to her alone. She owned land at Bonriki sharing a common boundary with land owned by the appellants.

3.	In 2001 the appellants brought proceedings in the Magistrates’ Court under No. C3/01. The purpose of the proceedings was to determine the boundaries of the appellants’ land. This included the need to define the boundary between the land of the appellants and that of the respondent. For reasons unspecified the appellants did not join the respondent as a party to those proceedings. The Magistrates’ Court gave a decision affecting her land without her knowledge or participation.

4.	The respondent did not learn of the decision in C3/01 until nearly two years later. She and her fellow owners responded by issuing their own proceedings in the Magistrates’ Court, C7/2003.

5.	The intention behind the respondent’s Magistrates’ Court proceedings C7/2003 was to revisit the original boundary determination made in proceedings C3/01. The respondent’s proceedings were rightly dismissed by the Magistrate. His decision was upheld on appeal to the High Court and then to this court. The short point was that one Magistrates’ Court has no power to review the decision of another Magistrates’ Court.

6.	The respondent then took the course which she ought to have taken at the outset, namely to commence High Court proceedings for judicial review of the original Magistrates’ Court decision in CN3/01. It is those proceedings (High Court Land Review 11/2004) from which the present appeal stems.

7.	In the judgment now on appeal the High Court noted the failure to serve or notify the respondent in the original proceedings that had affected her land. It could not be seriously disputed that there had been a fundamental denial of natural justice. If the High Court had the jurisdiction, it was a classic case for quashing the decision of the Magistrates’ Court in CN3/01 in exercise of the High Court’s prerogative jurisdiction over subordinate courts.

8.	The question was whether the High Court did retain its prerogative jurisdiction. In the High Court Mr Berina submitted that that source of jurisdiction had been superseded by the statutory right of review conferred by s 81 of the Magistrates’ Court Ordinance. That was critical because the 12-month limitation period applicable to the s 81 jurisdiction had already expired before the current proceedings were issued.

9.	In its decision the High Court referred to three decisions given by this Court on 23 August 2004: Iataake Iererua mt mm vs Moti Kum Kee & Tebukabane Ianibata (LA 6/03): Tebau Uriam, Kaburerei Uriam & Taburongo Uriam vs Borerei Uriam (LA 2/04); and Roote Tabaua & Ors vs Karinawa Kaia & Ors (LA 3/04). In those decisions we recorded the possibility that the High Court’s prerogative jurisdiction survived independently of the statutory power of review under s 81 of the Magistrates’ Court Ordinance but left the point open for future argument.

10.	In reliance on those decisions the High Court concluded that the prerogative powers remained. Exercising those powers, the High Court quashed the Single Magistrates’ decision in CN3/01 but stayed proceedings until resolution of any appeal to this Court.

The appeal

11.	In this court Mr Berina renewed the argument he had presented to the High Court that the 12 month time limit imposed under s 81 of the Magistrates’ Court Ordinance barred the current proceedings. He submitted that having set the time limit for judicial review in land cases, Parliament had impliedly removed the High Court’s inherent jurisdiction to issue prerogative writs after the expiration of that period.

Effect of Magistrates’ Court Ordinance on prerogative writs

12.	Section 81(1), (3) and (4) of the Magistrates’ Court Ordinance provides:

81. (1)	The High Court may, either of its own motion or on the petition of any person interested therein, call for the record of any case before a magistrates’ court and, either without seeing such record or after hearing argument as it may determine, exercise in the case of any criminal proceedings or in the case of any suit, civil cause or matter the powers conferred by subsections (2) and (3) respectively and in the exercise of such powers it shall have all the powers, authority and jurisdiction vested in the magistrates’ court which dealt with or determined the case under review.

(3)	In the case of any suit, civil cause or matter the High Court may –

(a)	set aside any judgment, decision or order made by the magistrates’ court and substitute any judgment or order which ought to have been made;

(b)	direct the magistrates’ court which gave the judgment or direction or made the order, or any other magistrates’ court, to take further evidence either generally or on some particular point, and in the meantime order the stay of any proceedings for the execution of any judgment or order;

(c)	set aside the judgment and order a retrial before the magistrates’ court which heard and determined the proceedings in question or any other magistrates’ court; or

(d)	make any other order as justice may require and give all necessary and consequential directions:

Provided always when a party shall have appealed against any judgment or order under the provisions of this Ordinance relating to appeals, the High Court shall not exercise the powers conferred by this subsection.

(4)	The powers conferred by this section shall not be exercised in respect of any case after the expiration of 12 months from the date of the passing of the sentence or the giving of judgment, order or decision terminating the proceedings in such case in the magistrates’ court, and in respect of which the High Court shall not up to then have taken any action.

13.	We are satisfied that these provisions do not supersede the High Court’s prerogative powers. Our reasons follow.

14.	The starting point is the Constitution of Kiribati. Section 89(1) of the Constitution confirms the prerogative powers one would expect of a superior court to supervise the proceedings of an inferior court. It provides:

89. (1)	The High Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court.

15.	Section 89(1) of the Constitution is not subject to any time limit. Powerful reasons would be needed before diminishing the constitutional duty of the High Court to supervise the proceedings of subordinate courts. A time limit would represent a diminution of that power.

16.	The second point is that s 2 of the Constitution provides that the Constitution is the supreme law of Kiribati and that if any other law is inconsistent with the Constitution that other law is, to the extent of the inconsistency, void. For reasons we will come to shortly, we do not see any inconsistency between recognising the Court’s supervisory powers without time limit, on the one hand, and recognising a distinct jurisdiction under s 81 of the Magistrates’ Court Ordinance, which is subject to a time limit, on the other. But if there were thought to be any inconsistency, the Constitution would plainly take priority.

17.	The third point is that the s 81 review jurisdiction conferred by the Magistrates’ Court Ordinance is an enabling provision. It confers powers on the High Court which it would not otherwise have. Section 81(1) gives the High Court the power to judicially review on its own motion. The Court does not have to wait for a petition or application from some interested person. There is no prerogative equivalent to that power. Section 81(1) also authorises the High Court to exercise all the powers, authority and jurisdiction of the Magistrates’ Court. There is no prerogative equivalent to that power either. In the Magistrates’ Courts Ordinance Parliament has seen fit to confer additional powers which the High Court would not have had if reliant solely upon prerogative powers. But it does not follow that by giving the High Court additional powers, Parliament intended to take away those prerogative powers which it would have had in any event.

18.	The fourth point is the strong policy argument against imposing a time limit upon the Court’s prerogative powers. Proceedings under s 81 must be commenced, heard and determined within 12 months of the impugned decision. The time limitation is a severe one when one considers the time which will often elapse before an affected party hears of the adverse decision, commences proceedings under s 81, and obtains a judgment from the High Court. Nor will an appeal be an adequate alternative. In cases like the present one affected parties will have no status to appeal since they were not parties to the original proceedings – quite apart from the prima facie 21 day time limit for appeals (s 66(2)). If s 81 were the only means of reviewing the decision of the Magistrates’ Court, litigants would be given a strong incentive to conceal court proceedings from affected parties for as long as possible.

19.	The fifth point is that the prerogative writs were expressly preserved in Order 61 of the High Court (Civil Procedure) Rules 1964 without express exclusion of Magistrates’ Court decisions. It is true that in the first instance R.S.C. O.61, r.3 requires the issue of prerogative proceedings within six months but there is no such limitation in the more general power to extend time under R.S.C. O.64, r.5. In isolation it might have been difficult to decide whether the more specific language of the former overrides the more general language of the latter. But for present purposes we are satisfied that R.S.C. O.64, r.5 must have been intended to prevail. Only then could full effect be given to s 89 of the Constitution Act and the proper inference to be drawn as to Parliamentary intentions.

20.	A potential counter-argument is that time limits encourage an end to litigation. Citizens should not be encouraged to bring proceedings long after the events to which they relate. But there is an answer to that concern. The availability of prerogative jurisdiction does not mean that the High Court will necessarily exercise it. Prerogative powers are inherently discretionary. In the exercise of that discretion one of the principle obstacles to relief will be undue delay on an applicant’s part. Another relevant consideration will be the extent to which other persons have reasonably ordered their affairs in reliance upon the decision now under challenge.

21.	Finally we note that this is not the first time that this point of principle has arisen in the Kiribati courts. Toaea v Toaea (High Court of Kiribati HCLR 32/97 22 April 1999) was a case on all fours with the present one. A Magistrate’s Court had decided a land case without notice to the applicant whose interests were affected. The applicant failed to bring review proceedings within the time provided for under s 81 of the Magistrates’ Courts Ordinance. Recognising that it was too late to use that jurisdiction, the High Court set aside the decision in the exercise of its supervisory powers under s 89(1) of the Constitution.

Conclusion

22.	The prerogative powers recognised in s 89(1) of the Constitution are not subject to any time limit. The High Court had the jurisdiction to grant the relief sought. No argument has been advanced that it was an erroneous exercise of the Court’s discretion over remedies.

23.	The appeal is dismissed with costs to the respondent as agreed or taxed. The stay ordered in the High Court pending the outcome in this Court is vacated.

Hardie Boys JA
Tompkins JA
Fisher JA