Kwong v Ioane [2009] KICA 8; Civil Appeal 02 of 2009 (26 August 2009)

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

Civil Appeal No 2 of 2009

BETWEEN:

OSONG KWONG FOR IOSEFA KWONG
APPELLANT

AND:

DOROTHY IOANE WITH BROTHERS AND SISTERS KWOK HUNG FOR FAIR PRICE
RESPONDENTS

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Botika Maitinnara for appellant
Banuera Berina for 1st Respondents
Taoing Taoaba for 2nd Respondent

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

JUDGMENT OF THE COURT

[1] On 7 May 2008 the Chief Justice dismissed the appellant’s application for leave to issue a writ of certiorari. He regarded the application as an attempt to revive an earlier application which had been struck out for non-appearance of the applicant. This appeal is against that decision.

[2] The earlier application had been brought in the name of "Lisa Iosefa Kwong for Iosefa Kwong" and named as respondents the same parties as in the second application. The relief sought was a review of the decision of a Single Magistrate given on 30 January 2006. The application came before the High Court on 4 October 2007, but Lisa did not appear, and although her lawyer attended, she was unable to proceed with the case in the absence of her client. The Chief Justice therefore struck out the application, but with liberty to either Lisa or Iosefa to apply within one month, and directed that the order be served personally on both of them.

[3] However, nothing happened until the present application was filed on 22 February 2008 well after the time for applying for review had expired. Although the relief now sought is certiorari the object of the proceedings and the grounds given in support of the application are the same as in the previous application. And the parties are the same. The appellant continued to be Iosefa Kwong. Strictly speaking, neither Osong Kwong nor Lisa Iosefa Kwong were parties to the proceeding and they should not have been included in the entitlement.

[4] The Chief Justice saw this as "an attempt to get round the limit of one month which I gave in October." He observed that he had to balance the interests of all parties. He said that the respondents were entitled to think, after the expiry of one month from 4 October 2007, that the matter was at an end; and that he should not allow the new application to proceed in the light of his order of 4 October.

[5] Despite the substitution of Osong for Lisa, there has in fact been no change in the identity of the applicant. It is Iosefa whose interest in the land has been in issue. It seems that he is in Australia. At most both Lisa and Osong can be no more than his agents for the purpose of bringing the proceedings. Iosefa is the true applicant in both proceedings.

[6] It should be noted that Kwok Hung took no part in the appeal. His interest, if any, is as tenant of Iosefa.

[7] This is of course an appeal against the exercise of a discretion. Certiorari does not issue as of right. In Tato Kaburoro v Abamakoro Trading Ltd, Civil Appeal 10 of 2008, this Court took pains to explain the pupose and discretionary nature of the remedy of certiorari, and the limited circumstances in which an appeal against the exercise of the discretion will be successful. There is no need to repeat what was said in that case. Suffice it to say that no grounds have been made out in this case for the Court to overrule the decision of the Chief Justice.

[8] Iosefa, himself or through his relative Lisa, had had two opportunities to bring his case before the High Court, one on 4 October 2007 and one between then and 4 November 2007. To seek a third was tantamount to an abuse of the process of the Court. The Chief Justice was fully entitled to refuse to countenance that.

[9] The appeal is therefore dismissed. The appellant must pay the costs of the first respondent, in a sum to be agreed or failing agreement to be taxed by the Registrar.

Hardie Boys JA
Tompkins JA
Fisher JA