Titanri v Iererua [2009] KIHC 20; Civil Case 194 of 2008 (2 June 2009)

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

High Court Civil Case 194 of 2008

BETWEEN:

TOMINIKO TITANRI
TEWERA TURAKU
TEINGIRA TERIETA FOR FAMILY
APPLICANTS

AND:

IOANE IERERUA FOR FAMILY
RESPONDENTS

For the Applicants: Mr Michael Takabwebwe
For the Respondents: Mr Banuera Berina

Date of Hearing: 2 June 2009

JUDGMENT
(Ex Tempore)

The application is in this form:

1. That the High Court Land Review 16 of 2003 be reopened or reheard; or
   
2. IN THE ALTERNATIVE, after this application is heard, a declaration that the registration of Rabunatai mt mm or other members of their family over Banga 664-e is invalid and null and void; and
   
3. That the registration of the issues of Nei Kabao and Nei Tekaau over Banga 644-e as approved in case No. 63/03 be restored or reinstated.
   

In effect this is an application to review the decision in HCLA 16/2003, the decision in which was given on 10 September 2004. This application is dated 15 December 2008. The applicants have waited four years to apply: in their affidavits they have given no explanation for the delay except that Boobai Teteki the chairman of the family group of which the applicants are members has been in gaol and found it difficult to see a lawyer. In fact an appeal in CN 16/03 was instituted to the Court of Appeal but not pursued. I do not accept the reason given by Mr Takabwebwe for the delay. That is sufficient without more to decide against the applicants. They could have and should have acted earlier. In coming to this conclusion I have assumed – as Mr Takabwebwe has submitted in his long and carefully argued submission vigorously presented that they can apply for review, that the Court does have jurisdiction to re-open and review the earlier decision.

Mr Takabwebwe has based his argument on fraud: that in 16/03 it was deliberately concealed from the High Court that Nei Rani Kaewaka had been at the hearing in the Magistrates’ Court. Deliberately concealed by lawyers and interpreters. There is no evidence of that. Fraud must be strictly proved and there is no evidence of fraud at all.

The applicants have each now deposed in affidavits that N. Rani was at the hearing. The lady herself has passed away. There is no answering affidavit to the applicants’ allegations but what is strongly against them is a document headed "Submissions on behalf of the First Respondents". The First Respondents were Bobai Teteki and Tewera Turabu. Paragraph 3 of the submission:-

4. In fact, the Applicant received a summons to appear but failed to appear". [The Applicant is N. Rani.]
   

I must assume that these submissions were prepared by Ms Troup then People’s Lawyer on the instructions of her clients. By the time of hearing Ms Troup had left Kiribati. The submissions were presented to the Court by Ms Taoaba who then was appearing for them. I again assume she presented them on the instructions of her clients.

Mr Berina has reminded me that at the hearing of 16/03 the present applicants did not suggest N. Rani had been present. That is confirmed by the judgment in that case which should be read in conjunction with these Reasons: there is no hint of any suggestion that she was present.

Both because there has been too long a delay – four years – in bringing this application and because fraud has not been proved the application is dismissed.

THE HON ROBIN MILLHOUSE QC
Chief Justice