Regina v Tenikomu [1979] KIHC 12; 1979 KILR 39 (27 March 1979)

[1979] KIHC 12; [1979] KILR 39

HIGH COURT OF THE GILBERT ISLANDS

Criminal Case No 19 of 1979

REGINA

v

TAWANANG TENIKOMU
AND
FOURTEEN OTHERS

(O'BRIEN QUINN C.J.)

Betio: 26th and 27th March 1979

Ruling on objection to the jurisdiction of the High Court, or any other Court of the Gilbert Islands, to hear a case or to try an offence alleged to have been committed on Ocean Island or Banaba.

The arguments and authorities are set out in the ruling.

RULED: That the objection to the jurisdiction of the High Court or any other Court constituted under the laws of the Gilbert Islands to try cases or matters arising on Ocean Island or Banaba be overruled, and that the High Court may proceed to try the case before it.

Authorities referred to:

Gilbert Islands Order 1975 s. 12(3)

Gilbert Islands Amendment Order 1977 s. 83Z

Statement of Intentions 1947, para (14)

Order in Council No 99 of 1916

Western Pacific High Commission Gazette 12th January 1916

Western Pacific High Commission Gazette Extraordinary 3rd April 1916

Order in Council 1915

Statutory Rules and Orders Vol III

Halsbury's Statutes, 3rd Edition, Vol 4, page 517

Colonial Boundaries Act 1895

S.R.O. 1430 of 1904

Halsbury's Laws of England, 4th Edition, Vol 6, page 567

Commonwealth and Colonial Law by Sir K Roberts-Wray page 901

Archbold, 38th Edition, paragraph 370

Archbold 37th Edition, paragraph 429

Halsbury's Laws of England, 4th Edition, Vol 11, paragraph 239

K.C. Ramrakha, Barrister, for the Applicants/accused
G.L. Pimm, Attorney-General, with him M. Takabwebwe, Crown Counsel, for the Crown.

O'BRIEN QUINN C.J.:-

Two preliminary objections and an application for a change of venue were made "in limine" in this case. I disallowed the first objection and refused the application for change of venue with the proviso that should it arise during the course of the case, if the trial proceeds, that a visit to the "locus in quo" becomes necessary an application will then be considered.

2. The sole remaining objection upon which I will now make a ruling is that which was taken by way of a challenge to the jurisdiction of this Court or any court constituted under the laws of the Gilbert Islands to hear a case or to try an offence alleged to have been committed on Banaba or Ocean Island.

3. The argument put forward by Mr Ramrakha in support of the objection was that whereas Ocean Island became part of the then Gilbert and Ellice Islands Colony in 1916and whereas in 1947 the population of Ocean Island was transferred to an island of the Fiji Group, called Rabi, a Statement of Intentions was drawn up between the Government of the United Kingdom and the Representatives of the Banaban Community by virtue of which the Banaban Community was given the right to reside on Ocean Island and to travel freely between Rabi Island and Ocean Island. This Statement of Intentions, an agreed copy of which was handed in by Mr Ramrakha, it was argued, gave certain rights to the people of Ocean Island in 1947 and that those rights would have been derogated from or abrogated entirely when the Gilbert Islands became a Self-Governing Colony by virtue of the Gilbert Islands Order 1975. Thus, it was contended, the 1975 Order, as it did not take account of the 1947 Statement of Intentions, was of no effect with regard to Ocean Island and that, accordingly, the 1975 Order did not and does not apply to Ocean Island which is a separate and distinct entity from the Gilbert Islands. Arising from this, he argued, the Courts of the Gilbert Islands have no jurisdiction over matters or alleged offences committed on Ocean Island. He referred to section 83Z of the 1975 Order as amended by the 1977 Amendment Orders and to section 12(3) of the 1975 Order. He contended that the 1975 Order insofar as it purported to confer the right of self-government on Ocean Island was illegal and that Banaba or Ocean Island was not subject to any laws made under the 1975 Order. The 1975 Order should not have been made without consultation with the Banaban Community, he stated, and said that he relied on the 1947 Statement of Intentions as a whole and on paragraph (14) in particular.

4. In reply the learned Attorney-General drew my attention to the terms of the 1947 Statement of Intentions and pointed out that it was "a statement of the intentions of Government with regard to the future of the Banaban Community on Rabi Island" which were the opening words of the Statement itself. He referred to the various paragraphs of the Statement and showed how they directly referred to the Banaban Community on Rabi Island and that paragraph (14) merely gave them the right to visit and reside on Ocean Island subject to the rights of the British Phosphate Commissioners over any land purchased or leased by them. The Banaban Community is a recognized entity by the law of Fiji and is recognized by the Gilbert Islands Government as representing the Banaban people on Rabi Island. The Banaban Community are like a Local Authority and are not a separate entity any more than the people of Onotoa or Tamana are an entity separate from the Gilbert Islands, he argued.

5. The learned Attorney argued that Ocean Island has been part of the Gilbert and Ellice Islands since at least the Order in Council No 99 of 1916. He referred to and produced the Western Pacific High Commission Gazette for Wednesday 12th January 1916 and the Western Pacific High Commission Gazette Extraordinary for Monday 3rd April 1916 including Ocean Island and other Islands within the Boundaries of the Gilbert and Ellice Islands Colony. He referred to the 1915 Order in Council and other relevant Statutory Rules and Orders in Vol III of the S.R.Os. He also referred to Halsbury's Statutes 3rd Edition Vol 4 at page 517 where the Colonial Boundaries Act 1895 appears and where reference is made to S.R.O. 99 of 1916 annexing Ocean Island, Fanning Island and Washington Island to the Gilbert and Ellice Islands. Reference was also made to Halsbury's Laws of England 4th Edition Vol 6 at page 567. Sir Kenneth Roberts-Wray's work on "Commonwealth and Colonial Law" was also referred to at page 901 where the Colonial history of the Gilbert and Ellice Islands is outlined.

6. There was further argument on the procedure for raising on objection to the jurisdiction and reference way made to Archbold 38th Edition at paragraph 370 (which is the same as the 37th Edition at paragraph 429) and to Halsbury's Law of England 4th Edition Vol 11 paragraph 239.

7. The learned Attorney's argument was, generally, that legally and constitutionally Ocean Island had been part of the Gilbert and Ellice Islands and no the Gilbert Islands since 1916 and that the Statement of Intention was merely an argument concerning the Banaban Community on Rabi in Fiji and had nothing to do with the legal and constitutional position of Ocean Island.

8. In reply learned Counsel for the defence argued that the essential question was the status of Banaba in the Court and he submitted that any alleged crime now before the Court was committed outside the jurisdiction of the Gilbert Islands.

9. I have listened carefully to the arguments put forward and have perused the authorities cited. In my mind there is no doubt that Ocean Island (or Banaba as it is now referred to) has been legally and constitutionally part of the Gilbert Islands since it was first annexed to the Gilbert and Ellice Islands in 1916. This is clear from the Statutory Instruments before this Court. With regard to the Statement of Intentions drawn up in 1947, I must say that, as I see it, it refers to the future of the Banaban Community on Rabi Island and to the fact that a majority of that community had agreed that they desired to reside on Rabi and to regard it as their headquarters and home. The fact that the document also gave them the right to visit and reside on Ocean Island does not, as far as I can see, give them any political or legal rights over and above those inherent in the Orders in Council then in existence and having effect with regard to Ocean Island. In my view the Statement of Intentions is just as valid today as it was in 1947, unless by mutual agreement any changes have been made in it, and the fact that the Gilbert Islands including Ocean Island became a self-governing Colony in 1975 has had no effect on the said document nor could the said document have had any effect on the 1975 Order or any other Order amending that Order.

10. I must, therefore, rule that the Statement of Intentions does not affect the jurisdiction of this Court or any other Court constituted under the laws of the Gilbert Islands to try cases or hear matters arising on Ocean Island or Banaba and I overrule the objection.

11. This Court may, therefore, proceed to try the case now before it as it has jurisdiction to do so.