Kaotan v Junior Kum Kee [2012] KICA 5; Civil Appeal 6 of 2012 (15 August 2012)

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

Civil Appeal No. 6 of 2012

BETWEEN

BEIARITI KAOTAN
BOOATA KAOTAN
ERIM KAOTAN
APPELLANTS

AND

JUNIOR KUM KEE MT MM
NEI TAABENE KAOTAN
ATTORNEY GENERAL IRO MAGISTRATES'
COURT SOUTH TARAWA
RESPONDENTS

Before: Paterson JA
Williams JA
Barker JA

Counsel: Kafoa Muaror for appellants
Mantaia Kaongotao for respondents

Date of Hearing: 10 August 2012
Date of Judgment: 15 August 2012

JUDGMENT OF THE COURT

INTRODUCTION

1. On 18 November 2011, Sir John Muria CJ delivered a reserved decision in which he refused leave to the appellants, Beiariti Kaotan, Booata Kaotan and Erim Kaotan, to commence judicial review proceedings to quash a decision of the Third Respondent, the Magistrates' Court of South Tarawa made on 6 February 1991. The appellants seek leave to appeal the High Court's decision, being some six months out of time for doing so.
   
2. The Magistrates' Court decision in 1991 had approved the sale of certain land to the father of the Second Respondent, Junior Kum Kee. The land had been vested in the three Appellants, the three Second Respondents and a deceased sibling on 16 May 1990. The Second Respondent named in the High Court and in this Court, Nei Taabene Kaotan, is the only Second Respondent named in the proceedings. It seems however to have been accepted that she represented all the siblings of the appellants who had been involved in the 1991 hearing.
   
3. The application to the High Court sought special leave to commence certiorari proceedings and then, if leave were to be granted, an order quashing the Magistrates' Court decision of 1991.
   
4. Leave of the High Court to commence judicial review proceedings is required by Rule O.61 r2. We note in passing that many other common-law jurisdictions have not found it necessary to require leave to be given before judicial review proceedings are issued. In such jurisdictions, the Court has never found it difficult to deal appropriately with vexatious or frivolous applications for judicial review.
   
5. The major drawback to a requirement for leave before the issue of such proceedings is delay. Because a decision to grant or refuse leave must have a right of appeal, very real problems are caused by, for example, a successful appeal against the refusal of leave being followed by an appeal on the substantive application. In Kiribati, where the visit of the Court of Appeal is usually on an annual basis, there could be a significant delay in having a substantive judicial review application heard on the merits – possibly in a situation where urgency is indicated. We respectfully suggest to those responsible for the promulgation of Rules of Court in this country, that consideration be given to eliminating the requirement for leave in judicial review applications. Better still, a modern statute on the subject of judicial review would be highly desirable. There are many successful precedents available in the Commonwealth.
   
6. Because judicial review applications appear to be on the increase in this jurisdiction, we make the following suggestions for cases under the existing Rules for the guidance of counsel and the efficient conduct of the litigation:
   
   • (a) After an application for leave has been granted, the substantive application should be accompanied a motion for directions. This motion should cover topics like the requirement for pleadings and affidavits, consideration of who is to be served and whether one person should be ordered to represent parties with a like interest. The documents needed to be produced by the decision-maker being reviewed should be specified. A suggested timetable for the filing of affidavits and other interlocutory matters are some of the other topics that could usefully be covered in such an application.
     
   • (b) Where a Court is named as the body to be reviewed, the entituling should refer only to the Court as a Respondent. It is constitutionally wrong to name the Attorney-General as representing any judicial body as if that body were a branch of executive government. That Court or other body will normally seek representation from a Government lawyer who would normally appear and abide the decision of the High Court. However, such counsel must ensure that all the relevant records of the Court to be reviewed are made available to the High Court.
     
   • (c) With any application for leave, a draft timetable for any substantive proceedings should be filed.
     
7. The Second Respondent did not appear before the Chief Justice. It appears that they had been advised of the date of hearing. Nor did they appear in the Court of Appeal. It is not clear whether they were served with the notice of appeal. However, since they apparently chose to take no part in the High Court proceedings, their rights to participate in the Court of Appeal hearing were rather limited. At Callover, counsel appeared for the Third Respondent and indicated that he abided the Court's decision. He was excused further attendance.
   

HEARING IN THE HIGH COURT

8. The Chief Justice recorded in his judgment that, despite the requirement in the Rules for leave, counsel then appearing for the appellants (not Mr Muaror) proceeded straight into the substantive arguments in support of judicial review without objection from counsel for the First Respondent. The Chief Justice, quite rightly, protested at counsel's implicit assumption that leave would be granted, pointing out that the manner in which the appellants' case had been presented was "a clear flouting of the rules". He also considered, quite correctly, that the principles for seeking leave to issue judicial review proceedings were not necessarily the same as those for seeking substantive relief.
   
9. What is more, the Chief Justice correctly pointed out that the application for leave to issue itself needed special leave because that application had been made outside the six-month time limit imposed by O.61 r.3. The Chief Justice was rightly surprised that counsel for the First Respondent had made no real objection to the appellants' non-compliance with the Rules. Because of this surprising lack of objection, the Chief Justice decided to consider together the question of leave and the substantive application for certiorari. He held that, even if leave to issue were to be granted, the substantive application would have to be declined, essentially because the appellant had waited 19 years from the date of the decision, of which they complained, before initiating judicial review. He considered it implausible that the appellants did not know about the 1991 decision until 2010, as they had claimed.
   

APPELLANTS' SUBMISSIONS

10. The appellants need first to obtain leave to appeal out-of-time to this Court against the decision of the High Court. The application for leave to appeal was filed in June 2012 – some six months out of time. The appellant, Beiariti Kaotan, filed an affidavit very late which should have been filed along with the application in June 2012. He claimed in essence that he had been told by several lawyers in Tarawa that his chance of success on appeal was slight and that it was not until June 2012, that he was advised by an overseas lawyer that there was a prospect of success.
    
11. Counsel submitted that there was no real prejudice to the First Respondent because the First Respondent had done no development on the land in question since the judgment in 1991. Pragmatically, counsel said, if the appeal had been filed in time, it would not have been heard any earlier because the Court's annual sitting began only on 9 August 2012.
    
12. Counsel also made submissions on the strength of the appeal for the purpose of justifying the grant of leave out of time. These submisisons are more appropriately considered later in this judgment.
    
13. Counsel for the First Respondent opposed the grant of leave to appeal out of time. It was only when the First Respondent sought to enforce an eviction order against occupiers of the land that the appellants initiated the judicial review process.
    
14. Counsel submitted that the appellants knew of their right to appeal after the High Court judgment had been delivered but took no real steps to appeal, claiming that they could get no indication of success from several local lawyers. The appellants had slept on their rights to the disadvantage of the First Respondent. Applying the principles laid down by this Court in Batee –v- Trustee for Jehovah's Witness Church (26 July 2006), the application for leave to appeal should be dismissed.
    

RELEVANT FACTS

15. In order to assess the submissions on the leave application, it is necessary to record the facts relating to the substantive application for judicial review. Batee's case shows that the strength of an intending appellant's case is a factor in deciding whether to grant leave to appeal out of time.
    
16. A judgment of the Bairiki Lands Court of 16 May 1990 vested ownership of the land – Abaunamou 792-i – in the seven siblings (i.e. the appellants, the Second Respondent and one deceased sibling). However, the Third Respondent Court on 6 February 1991 approved the sale of the land to Tioti Kum Kee, the father of the First Respondent.
    
17. The 1991 Court record is very spartan. It reads as follows:
    

Parties: Anginakei Kaotan

Tiebane Kaotan

Tokanikai Kaotan

-v-

Tioti Kum Kee

All parties in person

CLAIM: Registration of name over Abaunamou 792i/i

TOKANIKAI KAOTAN DSOB

I represent my sisters. We came before this Court for we wish to register the name of Tioti over our land at Abaunamou at Teaoraereke, because he will have a right over it since he bought it.

Court:

Q. Are there any co-owners with you?

1. Nei Toua, Nei Erim and Beiariti, Boata, N. Tabei.
   

Q. Where are those other people?

A. They have a letter but the one Boata is a seaman. (Letter mark Exh)

Q. Have you received its costs?

A. We have.

Q. Do you have any other lands if that one is gone?

A. There is.

Tioti

It's alright.

18. The appellants were not present at this hearing in 1991 and have consistently claimed that the sale to the First Respondent's father was effected without their knowledge or consent as co-owners and that they had been unaware of the 1991 hearing in the Magistrates' Court. This submission must imply that the Second Respondents misrepresented the appellants' position to the Magistrate. There is no documentary evidence from that Court to show that the appellants had been served with any application or had been given a notice of hearing. The letter referred to in the record above has not been produced.
    
19. The First Respondent's late father paid valuable consideration for the land (presumably to the Second Respondents). He and his descendants (now represented by the First Respondent) – have acted as owners since 1991. Indeed, the same Magistrates' Court on 9 December 1993 made an order registering the land in the name of all the children of Tioti Kum Kee, who by that date had died.
    
20. The appellants claim that the first they ever knew of the 1991 sale was when the First Respondent sought by Court action in 2010 to evict persons who were occupying the land. That action led to the appellants' application filed in the High Court on
    25 August 2010.
    
21. One of the appellants, Beiariti Kaotan (Beiariti) alleged in an affidavit that he and the other appellants had allowed friends and family to occupy the land without the consent of the First Respondent or his father, neither of whom had ever asserted rights of ownership until 2010. Beiariti deposed that he had been a teacher in Government schools in Kiribati until 1993 when he taught at a church school in Abaiang for five years. From 1998 to 2001 he taught in Nauru. He retired in 2004 and has lived in Eita ever since. It was only during the eviction case in 2010 that Beiariti first became aware of the First Respondent's claim to the land. The other appellants confirmed by affidavit their ignorance of the 1991 transaction. One was at sea during 1991.
    
22. Beiariti claimed that he had permitted Raete Kaetau to occupy the lagoon side of the land after Raete's brother Bateriki left in 1995. Beiariti had felt obliged to come to the aid of Raete when the eviction case was brought against Raete.
    
23. The First Respondent was not privy to the sale to his father back in 1991 but alleged that the appellants had received money from his father. With regard to the eviction proceedings he brought against Raete Kaetau, he deposed that Raete did not mention in those proceedings that she had occupied the land with the consent of the First Appellant. Rather, he alleged that Raete's brother, Bateriki had occupied the land with the consent of the First Respondent's mother on the basis that his occupancy would be fairly short-term. He regards the land as what his late father had left for the benefit of his children.
    
24. The First Appellant in his affidavit in reply, reasserted that he had not known of the sale to the First Respondent until the eviction proceedings in 2010. He denied receiving any of the purchase price or any money at all and he denied the First Respondent's allegations concerning Raete or Bateriki. He also claimed that the First Respondent's late father owned several other pieces of land, a matter that seems hardly relevant. Leave to cross-examine him was not sought in the High Court. It might have helped to resolve the conflicts.
    

DECISION ON LEAVE TO APPEAL OUT OF TIME

25. We give leave to appeal out of time. Although the reasons advanced for the delay are not compelling, there is little real prejudice to the Respondents in this relatively small delay – small in comparison with the appellants' delay in challenging the 1991 decision of the Magistrates' Court.
    
26. There is also the pragmatic consideration that even if the appeal had been filed in time, the appeal would not have been heard any earlier than the date of this present hearing. In saying this, we do not want to give tacit endorsement to appeals being filed out of time on the basis that, if they had been filed in time, they would not be heard any earlier. The legal profession should be on notice that the Rules of Court as to the timing for the filing of appeals should be followed.
    
27. In applications for leave to appeal out of time, the general rule is that a would-be appellant should pay the respondents' costs of the application on the usually-understood basis that those to whom an indulgence is granted should pay such costs. This comment does not apply to the High Court phase of this case because the Chief Justice ruled that the First Respondent's failure to challenge the unorthodox approach of the appellant's then counsel, did not justify an order for costs. We agree with that approach.
    

LEAVE TO ISSUE CERTIORARI AND THE SUBSTANTIVE APPLICATION FOR CERTIORARI

28. We propose now to consider the application for leave to issue judicial review proceedings which is all that is under appeal. Because one of the criteria for deciding whether leave should be granted is the strength of the case, we mention the arguments for and against the issue of the extraordinary remedy which were canvassed in submissions before us. We therefore feel able to opine on the Chief Justice's view that, even if leave were to be granted, the substantive application would not succeed.
    
29. The Chief Justice dismissed the application for leave and remarked that, had he had to consider the substantive application, he would have refused certiorari. As noted earlier, his principal basis was that it was inconceivable that the appellants had waited 19 years before approaching the Court to complain about procedural unfairness in 1991. He found as implausible the suggestion that the appellants did not know about the 1991 case until 2010.
    
30. Counsel for the appellants submitted that, despite the long delay, justice required that the decision be quashed because it was unjust and had been made contrary to natural justice. There was no proof that the appellants had known of the 1991 hearing. He was critical of the Chief Justice's comments about the timing of the appellants' first knowledge of the 1991 decision. He had made this finding without having seen or heard them in evidence.
    
31. Counsel for the appellants relied upon three decisions of this Court in support of his arguments.
    
32. First, Atanta and Others –v- Tabaua (8 August 2009) which was an attempt to review a Magistrate's land decision about 3 years after it had been issued. It was accepted that the respondent had not been notified of the impugned proceedings affecting his land. The argument had been that certain statutory provisions prevented the issue of the prerogative writ. This Court rejected that argument and relevant portions of the judgment are as follows:
    

"14. The starting point is the Constitution of Kiribati, Section 89(1) of the Constitution confirms the prerogative powers one would expect of a superior court to supervise the proceedings of an inferior court. It provides;

"89(1) The High Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such order, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court".

15. Section 89(1) of the Constitution is not subject to any time limit. Powerful reasons would be needed before diminishing the constitutional duty of the High Court to supervise the proceedings of subordinate courts. A time limit would represent a diminution of that power".

16. The second point is that s 2 of the Constitution provides that the Constitution is the supreme law of Kiribati and that if any other law is inconsistent with the Constitution that other law is, to the extent of the inconsistency, void. For reasons we will come to shortly, we do not see any inconsistency between recognising the Court's supervisory powers without time limit, on the one hand, and recognising a distinct jurisdiction under s 81 of the Magistrates' Court Ordinance, which is subject to a time limit, on the other. But if there were thought to be any inconsistency, the Constitution would plainly take priority.

18. The fourth point is the strong policy argument against imposing a time limit upon the Court's prerogative powers. Proceedings under s 81 must be commenced, heard and determined within 12 months of the impugned decision. The time limitation is a severe one when one considers the time which will often elapse before an affected party hears of the adverse decision, commences proceedings under s 81, and obtains a judgment from the High Court. Nor will an appeal be an adequate alternative. In cases like the present one affected parties will have no status to appeal since they were not parties to the original proceedings – quite apart from the prima facie 21 day time limit for appeals (s 66(2)). If s 81 were the only means of reviewing the decision of the Magistrates' Court, litigants would be given a strong incentive to conceal court proceedings from affected parties for as long as possible.

19. The fifth point is that the prerogative writs were expressly preserved in Order 61 of the High Court (Civil Procedure) Rules 1964 without express exclusion of Magistrates' Court decisions. It is true that in the first instance R.S.C. O.61, r.3 requires the issue of prerogative proceedings within six months but there is no such limitation in the more general power to extend time under R.S.C. O.64, r.5. In isolation it might have been difficult to decide whether the more specific language of the former overrides the more general language of the latter. But for present purposes we are satisfied that R.S.C. O.64, r.5 must have been intended to prevail. Only then could full effect be given to s 89 of the Constitution Act and the proper inference to be drawn as to Parliamentary intentions.

20. A potential counter-argument is that time limits encourage an end to litigation. Citizens should not be encouraged to bring proceedings long after the events to which they relate. But there is an answer to that concern. The availability of prerogative jurisdiction does not mean that the High Court will necessarily exercise it. Prerogative powers are inherently discretionary. In the exercise of that discretion one of the principle obstacles to relief will be undue delay on an applicant's part. Another relevant consideration will be the extent to which other persons have reasonably ordered their affairs in reliance upon the decision now under challenge.

21. Finally we note that this is not the first time that this point of principle has arisen in the Kiribati courts. Toaea v Toaea (High Court of Kiribati HCLR 32/97 22 April 1999) was a case on all fours with the present one. A Magistrate's Court had decided a land case without notice to the applicant whose interests were affected. The applicant failed to bring review proceedings within the time provided for under s 81 of the Magistrates' Courts Ordinance. Recognising that it was too late to use that jurisdiction, the High Court set aside the decision in the exercise of its supervisory powers under s 89(1) of the Constitution".

33. Secondly, Batee v Trustee for Jehovah's Witness Church (cit supra). This case was concerned primarily with leave to appeal out-of-time against a High Court land decision on a boundary dispute. Leave was refused on the principal ground that the appellants' delay had caused irreparable prejudice to the respondent. The following statement of principle on leave applications is adopted:
    

"16. As these and other authorities make clear, leave will not normally be granted unless the applicant shows (i) an acceptable explanation for the delay, and (ii) that in all the circumstances it would be fair and equitable to extend time. Significant questions in approaching the exercise of the discretion will be the magnitude of the delay, the reasons for it, any prejudice suffered in consequence, and the strength of the appellant's case. In the end, however, there is an overriding requirement to do what is just".

34. Thirdly, in Tabora v Uruatarawa & Another (26 August 2009), the appellant had sought to issue certiorari against a Magistrate's Court land decision made 17 years previously. The Chief Justice in the High Court had held that the delay of 17 years counted against any extension of time for issuing certiorari. He held that the appellant's daughter had known of the 1991 decision which authorised a sale of the appellant's land without her knowledge.
    
35. In the Court of Appeal, the following matters were held not to have been sufficiently before the High Court:
    
    • (a) The first respondent lacked title to the land and was therefore incapable of passing title to the second respondent.
      
    • (b) The first respondent registered her name as sole owner of the land, sold it, and obtained the Court's approval, knowing that the appellant had an interest in it and deliberately withholding all knowledge of these events from the appellant and her family.
      
    • (c) While the appellant and her family allowed 10 years to go by between learning of the sale and bringing the current proceedings they were not inactive during that period. To the knowledge of the respondents, they were doing their best to contest the sale, however ineffectually, first through the daughter and then through the appellant.
      
    • (d) The delay has not materially prejudiced the second respondent – he was told of the appellant's claim at an early stage and the appellant had resided on the land since 2004.
      
36. Relevantly, this Court then said:
    

"[11] Normally a delay of 17 years would be fatal to an application of this kind. However the magnitude of the delay is only one of the relevant factors. Others include the nature of the original invalidity which is now under challenge, the date on which the applicant first heard of the decision to be challenged, the steps taken by the applicant thereafter, the extent to which the delay may be attributable to lawyers, and the extent to which innocent third parties have taken steps in reliance upon the original decision before being advised of the challenge.

[12] We are satisfied that this is one of those unusual cases in which, notwithstanding a delay of this magnitude, it was appropriate to extend time to bring the current proceedings. Leave is given accordingly.

Certiorari merits

[13] The Chief Justice commenced his judgment with the words "Application to quash a decision made in 1991" and ended with "Application for certiorari fails". He clearly had in mind the substantive application as well as the question of delay. The affidavits deal with the merits as well as delay. The record of the hearing in the High Court, and the nature of the argument in this Court, persuade us that the parties have already said all that they could usefully say on the merits of the certiorari application itself.

[14] Rather than putting everyone to the trouble of traversing the merits again in the High Court we are prepared to deal with the substantive application for certiorari. For the reasons previously traversed we consider that the 1991 decision, and any related decisions registering the first respondent as the sole owner of the land in Bukintekua 732e, should be set aside".

37. In Tabora, this Court had reversed the High Court on appeal, and held that the failure of the Magistrates' Court in 2001 to notify the respondent of proceedings affecting her land had been a denial of natural justice. She had learned about the proceedings some two years later and then issued her own proceedings in the Magistrates' Court. Because one Magistrates' Court has no power to review another Magistrates' Court, the respondent then commenced judicial review proceedings in 2004.
    
38. We have accepted and taken these authorities (especially Tabora) into consideration but have come to the conclusion that leave to issue certiorari should be declined. We have also the Chief Justice's view that any substantive application would not succeed.
    
39. Our principal reason is the same as the Chief Justice's. 19 years is such a lengthy period that one is forced to ask, as did the Chief Justice, why the appellants had taken no action over that time. The appellants in Tabora had been more pro-active over the relevant period. The land was on Tarawa, one at least of the appellants lived on Tarawa for much of the 19 years. He held a responsible position (a teacher) and might have been expected to be sensitive to family property. Admittedly, the first appellant had been overseas for some of the 19 years but was on Tarawa for many of those years.
    
40. Although little was advanced about particular hardship to the First Respondent, he and his siblings had this land left to them by their father who paid valuable consideration for it. It would be unjust to evict them 19 years after their father acquired the land.
    
41. We have misgivings about the situation, prima facie, revealed by the appellants that they were not advised of the 1991 proceedings and that the Second Respondents may have misrepresented the appellants' situation to the Magistrate then. In the absence of any evidence from the Second Respondent, the record of the 1991 proceedings shows that the Magistrate may have been misinformed by the Second Respondent who appeared before him. The letter said to have been produced to the Court is missing from the records. Nor is there any evidence that the appellants were advised of the 1991 hearing. Although a misrepresentation was enough to gain judicial review in the Tabora case where there had been a delay of 17 years, balancing the equities, a delay of 19 years is just too long a period to outweigh the prejudice to the Respondents. Each case is to be determined on its particular facts. This one has failed to cross the line that Tabora managed to do.
    

RESULT

42. 
    
    1. The appeal against the decision of the High Court refusing leave to bring judicial proceedings out of time is allowed;
       
    2. The decision of the High Court refusing leave to commence judicial review proceedings is upheld;
       
    3. The appellants are to pay costs to the First Respondent for this appeal hearing only plus disbursements - all as fixed by the Registrar.
       

Paterson JA

Williams JA

Barker JA