Greig v Attorney General [2010] KICA 8; Civil Appeal 10 of 2010 (18 August 2010)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO

Civil Appeal No 10 of 2010

BETWEEN:

DAVID GREIG
TEREUE GREIG
TOKIA GREIG
NNERE GREIG
EDWARD GREIG
TANINTOA GREIG FOR AND OF
BEHALF OF ALL ISSUES OF
WILLIAM GREIG APPELLANTS

AND:

ATTORNEY GENERAL IRO THE REPUBLIC RESPONDENT

Before: Tompkins JA
Fisher JA
Williams JA

Counsel: Mantaia Kaongotao for appellants
Tumai Timeon for respondent

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

JUDGMENT OF THE COURT

[1] This is an appeal by the plaintiffs against the refusal by the Chief Justice to re-open the hearing of a case which was decided in the absence of the plaintiffs at trial.

[2] The appellants claim title to Fanning Island and Washington Island and seek declarations as to their entitlement. The parties by their counsel having previously agreed a Summary of Facts, the matter came to trial on 1 February 2010 when counsel for the plaintiffs failed to appear. Nevertheless the Chief Justice proceeded in the absence of the plaintiffs. On 3 February 2010 the Court made an order by which the Chief Justice dismissed the plaintiffs' claim.

[3] On 9 April 2010 the Court refused the plaintiffs' application to re-open that decision.

[4] In their Statement of Claim the plaintiffs claimed a declaration that the abovementioned islands "are rightfully owned by them" and that "ownership be returned to them". It became apparent on the hearing of the appeal that the plaintiffs were claiming ownership in fee simple but the Chief Justice treated the issue as being directed to the sovereignty on the islands and determined that question in favour of the Republic. Thus, the points of substance which the plaintiffs were intending to raise remain unresolved.

[5] In our opinion this situation is not satisfactory.

[6] Upon the hearing of this appeal counsel for the appellants provided an affidavit as to the reasons for his absence at trial. He claimed that he has not received notice of the actual hearing date. We accept that explanation.

[7] Upon the plaintiffs as appellants' undertaking to amend paragraph 1 of the Statement of Claim forthwith to claim a declaration as to their alleged ownership of a "title in fee simple under the sovereignty of the Republic of Kiribati" the appeal will be allowed, the order dated 3 February 2010 will be set aside and the matter will be remitted to the Chief Justice for re-hearing.

[8] The appellants are at liberty to make the abovementioned amendment to the Statement of Claim.

[9] There will be no order as to costs of this appeal.

Tompkins JA
Fisher JA
Williams JA