Greig v Attorney-General [2017] KICA 11; Civil Appeal 16 of 2016 (16 August 2017)

IN THE KIRIBATI COURT OF APPEAL ] Civil Appeal No. 16 of 2016
CIVIL JURISDICTION ]HELD AT BETIO ]REPUBLIC OF KIRIBATI ]

BETWEEN DAVID GREIG AND OTHERS FOR
AND ON BEHALF OF ALL ISSUES
OF WILLIAM GREIG APPELLANTS
AND ATTORNEY-GENERAL FOR THE
REPUBLIC RESPONDENT

Before: Blanchard JA

Handley JA

Hansen JA
Counsel: Mantaia Kaongotao for appellants

Ereta Bruce for respondent
Date of Hearing: 14 August 2017
Date of Judgment: 16 August 2017

JUDGMENT OF THE COURT

[1] On 14 August 2017 we ordered that these appeals be dismissed for want of prosecution, with no order for costs and the presiding Judge announced that we would give our reasons later. These are our reasons.

[2] On 12 January 2017 the appellants filed a single notice of appeal against judgments of the High Court in separate proceedings dated 12 November 2010 and 11 December 2014. They claim to be the rightful owners of Fanning and Washington Islands subject to the sovereignty of the Republic. Both appeals were years out of time.

[3] The former Chief Justice in his judgment on 12 November 2010 rejected the appellants’ claim holding that their chain of title ended with the sale of both islands to Emmanuel Rougier under the order of the Court of the High Commission on 3 December 1907. He also held that in any event the appellants’ action commenced in 2009 was time barred by s.8(2) of the Limitation Act 2004.

[4] The second action, commenced in 2012, sought an order reopening the first judgment based on the discovery of new evidence, to permit a retrial. The proceedings were misconceived. Except in cases where a judgment is sought to be set aside for fraud, the discovery of fresh evidence is only a ground for a rehearing, either before an appellate court or at first instance, if the appellate court finds that the evidence is relevantly fresh in accordance with the tests in Ladd v Marshall [1954] EWCA Civ 1; [1954] 1 WLR 1489 CA. The issue can only be raised in the appellate court on an appeal from the judgment.

[5] In any event Mr Kaongotao, who appeared for the appellants, could not produce any of the new evidence. We note that he was unable to do this at the hearing before the current Chief Justice even after he was given a lengthy adjournment. He was still unable to do this some 2½ years later, and five years after the second proceeding was commenced in 2012.

[6] In our judgment the long delays evidence a monumental failure to prosecute this claim with any diligence, and they probably demonstrate that the supposed new evidence simply does not exist. In any event Mr Kaongotao was unable to offer any answer to the decision of the former Chief Justice that the original proceedings were time barred under s.8(2) of the Limitation Act 2004, or, we would add, by the UK legislation in force in Kiribati before 2004.

[7] Nothing has been done to prosecute these appeals since the notice of appeal was filed. Both matters were called over on 10 August, the first day of the current session, when Mr Kaongotao applied for them to be stood over to the next session in a year’s time. The Court was not prepared to make that order at that stage and indicated that we would need to be satisfied that the new evidence existed, and that the appeals had some prospects of success. The presiding Judge indicated that otherwise the Court might dismiss the appeals for want of prosecution. They were stood over to 14 August.

[8] When the appeals were called in again on 14 August, Mr Kaongotao, who again appeared for the appellants, was unable to provide us with any information about the suggested new evidence, what it was and where it was, nor was he able to offer any explanation for the long delays, or indicate any answer to the limitation defence.

[9] In these circumstances the Court dismissed both appeals with no order for costs.

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Blanchard JA

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Handley JA

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Hansen JA