Tabaua v Atanta [2004] KIHC 287; Land Review 11 of 2004 (29 December 2004)

IN THE HIGH COURT OF KIRIBATI
LAND JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Land Review 11 of 2004

Between:

N. ROTEE TABAUA
Applicant

And:

KARINAWA ATANTA
N. IOANNA BWAKATI
TOOTA TAAKE
TOKARAKE IENIBWEBWE
Respondents

For the Applicant: Mr Aomoro Amten
For the Respondents: Mr Banuera Berina

Date of Hearing: 29 December 2004

JUDGMENT
(Ex Tempore)

Application for judicial review of a decision made in the Magistrates’ Court in CN 3/01. The decision was made in 2001: the date appears to be 5 March. It is common ground that an appeal would be out of time. Following the suggestions, perhaps no more than hints really of the court of Appeal (LA 6/03 Iataake Iererua mt mm vs Moti Kum Kee & Tebukabane Ianibata; LA 2/04 Tebau Uriam, Kaburerei Uriam & Taburongo Uriam vs Borerei Uriam; LA 3/04 Roote Tabaua & Ors vs Karinawa Kaia & Ors) this application has been made to get round the prohibition in Section 81(4) of the Magistrates’ Court Act of an application for review after more than 12 months. The grounds of the application include that the applicant was not a party before the court and was not notified of the proceedings.

Mr Berina does not take issue with the substance of the application but argues as a matter of law that Parliament by placing a time limit of 12 months on the right to apply for review has effectively taken away the jurisdiction of the court to entertain an application such as this for judicial review pursuant to the High Court’s inherent power to control inferior courts through the prerogative writs.

Since the remarks of the Court of Appeal we have granted several applications and for the sake of consistency we think we should consider this one as well.

Mr Berina has by implication at least acknowledged that the applicant was not a party and not notified of the proceedings. That is sufficient for us to grant the application. However as he has indicated his intention to appeal we are prepared to grant a stay of proceedings until after the Court of Appeal has had the opportunity to hear and decide the appeal.

The application for review is granted, the decision of the Single Magistrate in CN 3/01 is quashed. Stay of proceedings until after any appeal has been heard and decided by the Court of Appeal.

THE HON ROBIN MILLHOUSE QC
Chief Justice

BETERO KAITANGARE
Magistrate

RARATU IEITA
Magistrate