Tabuaki v Turabu [2011] KIHC 30; Civil Case 141 of 2010 (8 July 2011)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
Held at Betio
Republic of Kiribati

High Court Civil Case 141 of 2010

Between:

Taoaba Tabuaki for Issues of Nei Tekau Bataua
Applicants

And:

Tewera Turabu
1st Respondent

Ioteba Rubeia
2nd Respondent

BEFORE: HON SIR JOHN MURIA CJ

Mr Michael Takabwebwe for Applicants
Mr Daniel Webb for Respondents

Date of Hearing: 26 May 2011
Date of Judgment: 8 July 2011

JUDGMENT

Muria CJ: At the commencement of the trial of this matter, the first defendant raised two preliminary objections to be determined by the Court. The preliminary objections are set out in the Notice of Intention to Raise Preliminary Objection dated 20 May 2011.

The preliminary objections are concerned with the jurisdiction of this Court. They are prefaced by Counsel for the respondents as:

1. No jurisdiction on O.57 Originating Summons to vary Magistrates' Court's decision;
   
2. No jurisdiction to delete the name of the defendant from the Land Register.
   

The first objection can be disposed of very briefly. The plaintiff/applicant in this case comes to the Court by his Amended Originating Summons invoking the Court's jurisdiction under O.58 of the High Court (Civil Procedure) Rules 1964 and not under O.57. The reference to O.57 r4 in the body of the application is only to form. The provision says:

4. An originating summons shall be in the Form No. 2, 3 or 5 Appendix H to these Rules, with such variations as circumstances may require. It shall be prepared by the applicant or his advocate, and shall be sealed in the Registry and when so sealed shall be deemed to be issued. The person obtaining the summons shall leave a copy thereof with the Registrar, which shall be filed and stamped in the manner required by law.
   

Nothing turns on that. The first objection is of no moment in this case and it is rejected.

The second objection requires the Court to consider. The essence of the objection is whether the Court has power to rectify the Register of Native Lands by deleting the name of the defendant from the Register. The argument of Mr Webb of Counsel for the respondent is two-fold. First, under the principle of indefeasibility of title, the registration of the land in the name of the first respondent confers indefeasible legal title over the land on him.

Secondly, Counsel suggests that the only way to successfully challenge the first respondent's title is by a successful appeal under section 75 of the Magistrates' Court Ordinance or by review under section 81 of the Magistrates' Court Ordinance, or by prerogative writs pursuant to section 89 of the Constitution, or proving fraud. Mr Webb said that in this case, the applicant had not taken any of the steps mentioned and so this Court lacks the jurisdiction to order the rectification of the land register.

The issue, however, in this preliminary objection is not whether the Court should or should not delete the name of the defendant from the Register. Rather the issue here is whether the Court can under O.58 hear the plaintiff's amended application in which the plaintiff seek, not only a variation of the minutes of the Magistrates' Court in Case No. 163/01 by deleting the defendant from the Court's minutes and native land register, but also a declaration as to the rights of the issues of Nei Tekau Bataua in the land Tabontawana 597aa/1, the subject of the Magistrates' Court case No. 163/01. O.58 states:

1. Any person claiming to be interested under a deed, will, or other written instrument, may apply by originating summons for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the persons interested.
   
2. Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of any provision of a written law, may apply by originating summons for the determination of such question or construction, and for a declaration as to the right claimed.
   

...........

5. The Court shall not be bound to determine any such question of construction if in its opinion it ought not to be determined on originating summons.
   

One of the orders sought in the application is for a declaration as to the rights of the issues of Nei Tekau Bataua in the land in question. The inherent jurisdiction of this Court is one that the applicants can invoke under O.58 to have their claim considered.

Accepting that the principle of indefeasibility of title, is a relevant issue for consideration in this case, the Court's jurisdiction to hear the applicants' application cannot be excluded simply because an order sought may be beyond its power to make. If an order sought is within its power to make it will do so but if it feels that the order sought is one which it ought not to make it will say so. That is what rule 5 of O.58 says.

The concerns referred to by Counsel for the respondents as to the methods of successfully challenging the respondents' title to the land are matters for argument and consideration at the hearing of the substantive application itself. They are not for consideration here in this objection.

In my view, the Court has power to hear the plaintiff's application in this case. Whether it will grant the orders sought is another matter.

It is, of course, for the plaintiff to satisfy the Court that the orders sought ought to be granted, pursuant to its powers under O.58 of the High Court Rules.

The Court has jurisdiction under O.58 to hear the applicants' application and so the preliminary objections by the defendant are rejected.

Dated the 8th day of July 2011

SIR JOHN MURIA
Chief Justice