Titanri v Iererua [2009] KICA 18; Civil Appeal 16 of 2009 (26 August 2009)

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

Civil Appeal 16 of 2009

BETWEEN:

TOMINIKO TITANRI, TEWERA TURAKU and TEINGIRA TERIETA for the family
Appellants

AND:

IOANE IERERUA for the family
Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for Appellant: Michael Takabwebwe
Counsel for Respondent: Banuera Berina

Date of Hearing: 21 August 2009
Date of Judgment: 26 August 2009

JUDGMENT OF THE COURT

Introduction

[1] The appellants appeal against a judgment of the Chief Justice of 2 June 2009 declining to re-open a High Court decision of 10 September 2004 (HCLA16/2003) which had quashed a Land Court decision in CN63/03. The Chief Justice had also declined the appellants’ application for a declaration that the registration of the respondents’ family members as owners of the land in Banga 664-e was void and that the registration of members of the appellants’ family in CN63/03 should be reinstated.

Background

[2] By a Land Court decision in proceedings CN63/03 the Land Court determined that members of the appellants’ family were entitled to be registered as owners of the Land in Banga 644-e.

[3] The respondent appealed to the High Court sitting in its land jurisdiction. The principal ground for the appeal was that the respondents’ representative, Nei Rani, had not been notified of the Land Court proceedings notwithstanding her interest in the land in question. Produced to the High Court was an English translation of the minutes of the Land Court in CN 63/03. The translation appeared to suggest that Nei Rani was not present at the critical Land Court hearing. On the strength of that and other evidence, counsel for the respondents submitted that there had been a breach of natural justice in CN 63/03.

[4] The High Court accepted the respondents’ argument. In a decision of 10 September 2004 it quashed the Land Court decision in CN63/03. A consequence was that members of the respondent’s family (Rabunatai mt mm and other family members) remained registered as owners to the exclusion of the appellants’ family (the issues of Nei Kabao and Nei Tekaau). The High Court pointed out, however, that it remained open to the appellants to bring fresh proceedings in the Land Court, this time giving proper notice to Nei Rani.

[5] The appellants elected not to recommence their proceedings in the Land Court. They were convinced that Nei Rani had in fact been present at the Land Court hearing in CN63/03. On 15 December 2008 they brought the present proceedings seeking to have the decision of 10 September 2004 "reopened or reheard".

[6] The essential ground advanced for revisiting the High Court decision of 10 September 2004 was that it had been obtained by fraud. The fraud was said to be the false representation to the High Court that Nei Rani had not been present at the Land Court hearing in CN63/03. The reason advanced for the delay of four years in making the application to set aside the earlier High Court decision was that the Chairman of the family group, Boobai Teteki, had been in jail and had found it difficult to see a lawyer.

[7] In his judgment the Chief Justice acknowledged that in the current proceedings there were affidavits from the appellants that Nei Rani was at the Land Court hearing and that there was no contrary evidence from her because she had died. However he pointed out that in a document headed "Submissions on behalf of the First Respondents" (the First Respondents being Boobai Teteki and Tewera Turabu) para 3 of the submission recorded that the applicant, N.Rani, received a summons to appear but failed to appear.

[8] The Chief Justice pointed out that fraud must be strictly proved. He held that there was no evidence of deliberate concealment by the lawyers or interpreters involved in the 2004 proceedings. He also considered that the incarceration of Boobai Teteki was not an adequate explanation for the delay of four years before bringing the 2008 proceedings. In consequence he declined to set aside the 2004 decision.

The Appeal

[9] In this Court Mr Takabwebwe submitted first that the High Court had jurisdiction to set aside its earlier decision if it were shown that it had been obtained by fraud. We agree. The principles to that effect are set out in Jonesco v Heard [1930] AC 298, 301 and Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 paras 2 to 4.

[10] We also accept that the appellants have advanced a respectable case that Nei Rani had been present at the critical hearing in the Land Court. There is evidence both ways but the appellants would have a strong case on that issue had it been relevant.

[11] However the issue before the High Court in 2008 was not whether Nei Rani had in fact been present at the critical hearing but whether the High Court’s 2004 decision had been obtained by fraud. The challenge for the appellants was to show that in the 2004 proceedings one or more people had made false statements to the High Court knowing at the time they made those statements that they were false. As the Chief Justice pointed out, fraud must be strictly proved.

[12] On that subject Mr Takabwebwe relied upon two representations which were said to be fraudulent. One was the 2004 submission of Mr Berina that the evidence supported the conclusion that Nei Rani had not been present at the critical hearing.

[13] Mr Berina’s submission could not possibly have amounted to fraud. To begin with he was not giving evidence. All he was doing was advancing an argument as to the way in which the available evidence should be interpreted. It was equally open to counsel for the appellants to argue the contrary. Submissions may or may not be accepted but they should never be mistaken for personal statements of evidence. Secondly there is not the slightest suggestion that Mr Berina knew at the time (or knows even now) that his submission was false.

[14] Secondly Mr Takabwebwe referred us to the English translation of the minutes of the Land Court in CN 63/03. The translation appeared to suggest that Nei Rani was not present at the critical Land Court hearing. Mr Takabwebwe pointed out that the original minute did list Nei Rani as one of those present at the hearing. So there was a critical error in the translation initially provided to the High Court.

[15] The inclusion of Nei Rani in the original minute must have been a powerful point in the appellant’s favour had the issue still been whether she was in fact present. However by 2008 the focus had moved to the question whether the High Court’s decision in 2004 had been obtained by fraud. On that subject there is no suggestion that the respondents or their advisers were responsible for the mistranslation of the original minute. That task had been performed by Court staff. There is no suggestion that the error was deliberate. So this matter doe not provide any basis for a fraud allegation either.

[16] We agree with the Chief Justice’s conclusion as to fraud. Fraud must be strictly proved. The appellants have not been able to point to any evidence in support of that allegation.

Conclusion

[17] It is unfortunate that for the last five years the appellants have focused their energies on the question whether Nei Rani had been present at the Land Court hearing in CN 63/03. From the time of the High Court decision in 2004 matters have moved on. There was never any prospect of showing that the High Court decision had been obtained by fraud. What the appellants ought to have done, and can still do, is to make a fresh application to the Land Court after proper service on all affected parties.

[18] The appeal is dismissed with costs to be agreed or fixed by the Registrar.

Hardie Boys JA
Tompkins JA
Fisher JA