Tione v Reiati [2010] KICA 5; Civil Appeal 06 of 2010 (18 August 2010)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO

Civil Appeal 6 of 2010

BETWEEN:

TAWAIA TIONE
APPELLANT

AND:

TEINA REIATI
1ST RESPONDENT

ITIBITA ERIAKIM
2ND RESPONDENT

KAIBAO TIONE
3RD RESPONDENT

Before: Tompkins JA
Fisher JA
Williams JA

Raweita Beniata for Appellant
Elsie Karakaua for 1st & 3rd Respondent
Banuera Berina for 2nd Respondent

Date of Hearing: 13 August 2010
Date of Judgment: 18 August 2010

JUDGMENT OF THE COURT

[1] On 15 January 2010 the Chief Justice made an order (purporting to be made by consent of the parties upon an application for certiorari). However it was made in the absence of the second respondent Itibita Eriakim who failed to appear. This fact was overlooked when the order was made. Subsequently the Court was informed that counsel had been retained by the second respondent but owing to some misunderstanding counsel did not attend. In those circumstances the Chief Justice on 12 February 2010 made an order recalling his earlier order and ordering a re-hearing on terms that the second respondent pay to each of the other three parties their respective costs thrown away.

[2] On 17 March 2010 the Chief Justice proceeded with a re-hearing but there is no appeal against the decision arising out of the re-hearing.

[3] By notice of appeal dated 17 March 2010, Tione (the original applicant for certiorari) appealed to the Court of Appeal against the Chief Justice's order dated 12 February 2010. His counsel complains that upon the hearing leading to the recall order on 12 February 2010, there was an irregularity in that Tione's counsel was not given proper notice to be ready to argue the matter on that day. There is some force in that submission but the argument of Tione has now been fully ventilated before the Court of Appeal. In the event we are satisfied that it was inevitable that the Chief Justice's order of 15 January 2010 (having been made by mistake) should be recalled despite the irregularity in the hearing on 12 February 2010.

[4] The appeal to the Court of Appeal will be dismissed. The appellant will pay the second respondent's costs of the appeal to be agreed or fixed by the Registrar. There will be no order as to the costs of the first and third respondents.

Tompkins JA
Fisher JA
Williams JA