Tawaia v Nanolelei - Judgment [2006] KIHC 109; 29-06 (12 October 2006)

IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 29 of 2006

Between:

BINATAAKE TAWAIA
for himself and representing some of the members
Plaintiff

And:

NANOLELEI COOPERATIVE SOCIETY LIMITED
1st Defendant

And:

IOTEBWA TEBUKA, JOHN COLLINS, NAKAUKI
MOREI, KAUTEBIRI KOBUTI, TIRATA TARIAI AND
TIREE TEBENEA
2nd Defendants

And:

ATTORNEY GENERAL (IN RESPECT OF THE REGISTRAR OF COOPERATIVES)
3rd Defendant

For the Plaintiff: In Person
For the 1st & 2nd Defendants: Mr Stephen Earl
For the 3rd Defendant: Mr David Lambourne, Solicitor General

Date of Hearing: 12 October 2006

JUDGMENT

Mr Binataake Tawaia has taken proceedings against Nanolelei Cooperative Society Ltd and a number of individuals and the Attorney General in respect of the Registrar of Cooperatives. His complaint arises out of his suspension as Secretary of Nanolelei. All the defendants have taken the point that, pursuant to section 52(1)(c) of the Cooperative Societies Ordinance, it is for the Registrar of Cooperatives, not the Court, to make a decision in his dispute.

Section 52(1) (in part):

If any dispute touching the business of a registered society arises ....... between the society or its committee and any officer of the society ...... such dispute shall be referred to the Registrar for decision; .....

From Mr Tawaia’s affidavit, sworn on 19th May 2006, it appears the dispute is between him and the Society.

Mr Tawaia argues, however, that section 52 is concerned only with a dispute touching the business of the Society, that is the commercial business of the Society: the Court retains jurisdiction over all other disputes. Mr Tawaia referred to section 13 and regulation 39 in support of his argument. His dispute, he argues, is not a dispute touching the commercial business of the Society. Therefore the Court has jurisdiction.

In reply Mr Earl and the Solicitor General pointed out that if the Registrar is to deal only with commercial disputes, then the four placita in section 52(1) would hardly make sense: they deal with disputes among members, officers and other societies. Business disputes on Mr Tawaia’s interpretation would as a rule be with customers: the words "touching the business of the registered society" must be given a wider meaning than that for which Mr Tawaia contends.

The words "touching the business of a registered society" should be read in the context of the whole of section 52(1). Doing that makes it clear that "business of a registered society" should be given the wider meaning for which Mr Earl and Mr Lambourne contend. Mr Tawaia’s dispute is one "touching the business of" Nanolelei.

Section 51(1) is mandatory - "such dispute shall be referred to the Registrar for decision". Those words are sufficient to oust the jurisdiction of the court. That is emphasised in subsection (4) which makes the decision of the Registrar final: it "shall not be called in question in any civil court". [Section 53 does provide for a case to be stated on a question of law but that is not relevant in this time to this dispute.] This is a sensible provision. The Registrar is in a far better position than the Court to decide such matters.

The Court does not have jurisdiction to hear Mr Tawaia’s claim. The claim must be struck out.

Dated the day of October 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice