Kanoanie v Ruata [2006] KICA 27; Civil Appeal 01 of 2006 (27 July 2006)

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

Civil Appeal 1 of 2006

BETWEEN

UAKERITA KANOANIE
Appellant

AND

ATAUEA RUATA mtmm
KAATO KABUNARE mtmm
Respondents

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Karotu Tiba for appellant
Banuera Berina for respondent

Date of Hearing: 21 July 2006
Date of Judgment: 27 July 2006

JUDGMENT OF THE COURT

[1] The appellant applied for an order of certiorari to quash decision 26/96 of the Magistrates Court at Abaiang dated 19 April 1996 between appellant and the respondents, and for leave to bring that application out of time. In his judgment dated 29 December 2005 the Chief Justice refused the application to bring the application for certiorari out of time. From that decision the appellant has appealed to this court.

[2] The proceedings concern land known as Tekewewe 368r ("the land").

The sequence of events

[3] On 19 April 1996 there came before the Land Court at Abaiang an application 26/96 by the respondents to distribute the land between them. The appellant was not present at the hearing and had no notice of the application. It was granted.

[4] The appellant became aware of this grant in 1998. He filed an application 5/99 to the Land Court and it came before that court in October 1999. After hearings that extended over several days the court delivered a lengthy and carefully reasoned decision on 8 February 2000. It concluded that the respondents’ interests had ceased by virtue of the decision in case 59/61 and accordingly the land should revert back to the appellant and that the respondents should vacate the land in two weeks. In effect it revoked the decision in 26/96 and substituted the above decision.

[5] By letter dated 31 May 2000 addressed to "To whom it may concern", the magistrates who made the order in 26/96 said that the order was made in error as the land does not belong to those who they thought owned it, but instead it belonged to the father of the appellant.

[6] The respondents appealed. The High Court on 26 July 2002 allowed the appeal. The Land Court in 5/99 had no power to reverse the decision in 29/96. The High Court was prevented by s 81 of the Magistrates’ Courts Ordinance from reviewing the decision in 26/96, as the section required that any review under the section shall not be exercised after 12 months from the giving of judgment.

[7] Following this decision, the appellant instructed his then lawyer to file an appeal to the Court of Appeal and paid the filing fee. He believed that an appeal had been filed, but it had not.

[8] On 23 June 2005, this application was filed. It was claimed on behalf of the appellant that there was fraud in the application 26/96 in that neither the appellant nor his father were aware of the hearing.

Judgment in the High Court

[9] In his judgment the Chief Justice said:

"Fraud is claimed in CN 26/96 in that it is said that neither the applicant nor his father were aware of the hearing. In CN 5/99 the magistrates accepted (without proof) that there had been fraud. Their decision was quashed in HCLA 13/2000: see the Order dated 26 July 2002 and the Judgment dated 20 September 2002. The respondent has continued in possession of the land since 1996.

The applicant must have considered appealing in HCLA 13/2000 to the Court of Appeal as a fee of $25 was paid on 4 October 2002. The appeal has not been prosecuted.

Now, since the advice of the Court of Appeal that time limits may be avoided by applying for certiorari the applicant has made this application.

Mr Berina has relied heavily on the remark we made in the Judgment of 20.September 2002:

I may add that even if we had the power I personally would have been unwilling - although open to persuasion perhaps after argument - to exercise it after so long.

Mr Berina argues that since then the applicant has slept on his rights for another three years what we said in 2002 is reinforced.

Finally, considering the submissions of both counsel I have concluded that after nearly 10 years the decision in CN 26/96 should stand. Certainty of title demands it"

The submissions

[10] It was submitted by counsel for the appellant that the Chief Justice was in error in refusing the application, in failing to have regard to the actions of the appellant since the decision in 26/96 and in failing to accept that the appellant was continuously asserting his right to the land. He submitted that there was a breach of the principles of natural justice in that neither the appellant nor his father was given an opportunity to be heard when the decision in 26/99 was made. Alternatively the decision was affected by fraud in that the interests of the appellant were not revealed to the Land Court.

[11] It was submitted by counsel for the respondent that all the issues now raised were also raised before the Chief Justice, that as a result he considered all relevant matters, that the granting of leave involves the exercise of a discretion and that there are no grounds for interfering in the manner in which the Chief Justice exercised his discretion in refusing leave.

Conclusion

[12] Although in his judgment the Chief Justice referred to the allegation of fraud as found by the magistrates in CN 5/99, he appears not to have taken into account that the appellant in these proceedings may be able to establish fraud at the substantive hearing. In his affidavit in support of the present application, the appellant describes in some detail how the land was registered in the name of his father and how, at the hearing on 19 April 1996, the respondents, in the absence of the appellant and with knowledge, according to the appellant, of his father’s ownership, obtained from the magistrates the order 26/96 vesting the land in them. It is this order to which the magistrates are referring in their letter of 31 May 2000. This evidence gives rise to at least a prima facie case of fraud and of a breach of the rules of natural justice.

[13] The Chief Justice relied on the period of 10 years that had elapsed since the making of the order in 26/96. But it is apparent from the sequence of events that occurred that the appellant was not sleeping on his rights. As soon as he became aware in 1998 of the order made in favour of the respondents, he applied to have the order reversed, an application that succeeded in the order made in 5/99, but which was quashed by the High Court in 2000 on the grounds that the magistrates could not reverse an earlier order made in the magistrates’ court. On his evidence, the delay that occurred since 2002 was occasioned by the default of his then counsel.

[14] The Chief Justice, in observing that certainty of title demands that the decision in CN 26/96 should stand, appears to have taken into account the principle of indefeasibility of title. However, as we have found in our decision in Borerei Uriam v Tebau Uriam and ors CA 6/2006, the indefeasibility provision in the Land Act does not apply where an order of certiorari is made quashing the order that granted the title.

[15] For these reasons we are satisfied that the applications for leave to apply out of time should have been granted.

Result

[16] The appeal is allowed. Leave is granted to apply out of time. Whether the writ should issue is for the High Court to determine.

Hardie Boys JA
Tompkins JA
Fisher JA