Terenga v Tooma [2011] KIHC 33; Civil Case 179 of 2010 (29 July 2011)

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

HIGH COURT CIVIL CASE 179 OF 2010

BETWEEN:

ORIAWA TERENGA AND OTHERS
PLAINTIFFS

AND:

TEEBORA TOOMA
DEFENDANT

BEFORE: THE HON SIR JOHN MURIA CJ

Mr Michael Takabwebwe for the Plaintiffs
Ms Taoing Taoaba for the Defendant

Date of Hearing: 14 May & 3 June 2011
Date of Judgment: 29 July 2011

JUDGMENT

Muria CJ: This is an appeal against the order of the Single Magistrate made on 4 November 2010 whereby it was ordered that the defendants, now appellants and their families to be removed from the land Maeu 622i as of 4 November 2010.

Mr Takabwebwe of counsel for the appellants relied upon three grounds, namely a breach of the rule of natural justice, that the respondent in statute barred and there is an appeal to the Court of Appeal pending in respect of the Land Case No: 114/07.

Brief background:

The genesis of this appeal stems from the decision of the Magistrates' Court in Land Case No: 114/07.

In that case, the plaintiffs who are the issues of Nei Tekoa Karotu, brought proceedings before the Magistrate Court claiming certain plot of lands namely Tabontawana and Maeu 622i from the issues of the defendant. The basis of the plaintiff's claim was that the defendant acquired the lands through fraud. The Magistrates' Court dismissed the plaintiffs' claim.

The plaintiffs' appealed to the High Court in High Court Land Appeal No: 1 of 2009 against the Magistrates' Court's decision. On 19 February 2010 the High Court dismissed the plaintiffs' appeal.

Following the High Court's decision. The plaintiffs' appealed to the Court of Appeal against the decision of the High Court on 20 September 2010. That appeal to the Court of Appeal is yet to be heard.

In the meantime, following the High Court's decision of 19 February 2010, the respondent, the issues of Tooma Mannaua, brought eviction proceedings in the Magistrates' Court against the plaintiffs' on 27 July 2010, seeking to evict the appellants from the Land Maeu 622i. At the hearing of the eviction proceedings, the Court decided that the issues of Nei Tekoa Karotu (appellants) should vacate the land within two (2) months from 27 July 2010.

The appellants did not vacate the land as ordered by the Court and so on 4 November 2010 the Magistrates' Court issues an eviction order.

Under the said order, the police were authorized "to enter the said land 622i and remove all the defendants with all their families and relatives and all the issues of Nei Tekoa Karotu who are all presently residing and living on the said land".

The order is clearly directed at those "who are all against ..... Nei Teebora Tooma".

This appeal by the appellants is not against Magistrates' Court's decision of 27 July 2010 which decided that the appellants should vacate the land within two (2) months from the date of that decision. This appeal is against the eviction order of the Magistrates' Court's dated 4 November 2010 which authorized the police to enter the land and remove the appellants and all their families, relatives and all the issues of Nei Tekoa Karotu from the land.

As the appeal against the High Court's decision in connection with the Magistrates' Court's Land Case No: 114/07 is now before the Court of Appeal, the issues in dispute between the parties as to their rights and interest in the land will have to wait until that Court determines the appeal.

The case before this Court is therefore, confined to the order of 4 November 2010 made by the Magistrates' Court.

The case for the appellant as put by Mr Michael Takabwebwe is that following the eviction proceedings before the Magistrates' Court on 27 July 2010 (at which proceedings the appellant denied agreeing to vacate the land in question) the Magistrates' Court issued an order on 4 November 2010, ordering the removal of the appellants from the land.

No notice of hearing was given to the appellants before the order was made by the court. Tthat submitted counsel, was a breach of the rule of natural justice and so the issuance of the order on 4 November was unlawful.

Ms Taoba of Counsel for the respondent on the other hand submitted that there was no obligation on the court to summon or notify the appellants prior to making the order on 4 November 2010. This, Counsel submitted, was because the appellants through their lawyer, told the court on 27 July 2010 proceedings that they agreed to vacate the land and that they needed two or three months to find another place. Counsel argued that is was "simply a matter of executing the judgment" given on 27 July 2010.

Counsel for the respondent conceded that the order of 4 November 2011 was made on application by the respondent without notice given to the appellants.

The general principles of law on the application of the rule of natural justice was given in Jones – v- National Coal Board [1957] 2 AB 55 at 67 where the English Court of Appeal said:

"There is one thing to which every one in this country is entitled, and that is a fair trial at which he can put his case properly before the judge............ No case is lost until the judge has found it so: and he cannot find it without a fair trial, nor can we affirm it".

Lord Shaw expressed similar rule in 1914 in Local Government Board – v – Arlidge [1915] AC 120 where he opined that not only that the Local Government Board inquiry should be public as required by the law, but the "person whose interest are affected" was entitled to something more, namely to know or to be disclosed to him the authority's views on the other side upon which the decision was based.

The High Court of Australia in Stead –v- State Government Insurance Commission [1986] HCA 54, (1986) 161 CLR 141 further qualified the general rule stated in Jones –v- National Coal Board by stating as follows:

"That general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.

For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. ----- It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial".

In the present case, the respondent applied to the Court for an order to remove the appellants from the land in question and the Magistrates' Court made the order without notice given to the appellants or an opportunity given to them to be heard before such an order could be made against them. That was clearly a breach of the rule of the natural justice. The rule that "no man should be condemned unheard" holds true in this case. The fact that at the 27 July 2010 proceedings the Magistrates' Court gave time for the appellants to find an alternative place did not justify the Magistrates' Court in issuing such a coercive order with drastic effect on 4 November 2010 without giving the appellants the opportunity to be heard.

The issuance of the eviction order on 4 November 2010 was clearly done in breach of the appellants' right to be heard. Consequently, that order cannot be said to be lawfully made and should be quashed.

The Appeal is therefore allowed. The order made on 4 November is quashed.

There is a further matter raised by the appellants. This is a question of Stay pending appeal. Although grounded as one ground of the appeal against the Magistrates' Court order of 4 November 2010, I feel the appellants are really applying for Stay of execution pending the determination of their appeal to the Court of Appeal on matter involving the same land and arising of the Magistrates' Court's decision in Land Case No: 114/07.

To prevent delay in this matter and to preserve the status of the subject matter in dispute between the parties, I think the Court can exercise its inherent jurisdiction in this matter and deal with the issue of Stay in this case as well. Counsel for the appellants made submissions in support of a stay and Counsel for the respondent had responded to those arguments. I should therefore decide on the point.

As the parties' rights to be heard in question are presently on appeal to the Court of Appeal, an order to preserve the status of that property is necessary. I shall grant an order for Stay of execution of the High Court Land Appeal No: 1 of 2009 in connection with the land in question until the determination by the Court of Appeal of the appellants' appeal.

Order: 1) Appeal allowed;

2) Eviction order dated 4 November 2010 quashed;

3) Grant Stay of High Court Judgment in Land Appeal 1 of 2009.

Dated the 29th day of July 2011

SIR JOHN MURIA
Chief Justice