Terubea v Uereti [2011] KIHC 35; Civil Case 195 of 2010 (8 September 2011)

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

High Court Civil Case 195 of 2010

Between:

Ienimango Terubea
Applicant

And:

Ringa Uereti
Defendant

BEFORE: HON SIR JOHN MURIA CJ

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

Date of Hearing: 8 September 2011

JUDGMENT

Practice – claim for interlocutory injunction - no substantive cause of action commenced – whether Court has jurisdiction.

Muria CJ: By his application dated 30 November 2010, the applicant, representing his family, seeks an order of injunction restraining the Lands Court from hearing and determining a land boundary determination in CN 181/2010 in respect of the land Tengaruru 766aa, South Tarawa. The application is supported by two affidavits sworn to by the applicant on 29 November 2010 and 7 September 2011 respectively and filed in this matter.

The application was heard on 8 September 2011. As the Court was about to consider its decision on the matter, it realized that an important issue which neither party raised at the hearing and consequently the Court did not deal with at the hearing on 8 September 2011. The overlooked issue is: whether the application by the applicant can stand on its own without a substantive action. Consequently, the Court recalled the parties to address the issue.

Commencement of proceedings

The present case was commenced by a NOTICE OF MOTION: dated
30 November 2010 and filed on the same date in the High Court Registry brought pursuant to O.55 of the High Court Rules. It was given a case reference number as HIGH COURT CIVIL CASE NO. 195 OF 2010.

By O.2 r.1 of the High Court (Civil Procedure) Rules 1964 (High Court Rules) cases are commenced in the High Court by writs of summonses, we turn to Order 2, Rule 1 of O.2 provides:

"r.1. Every action in the Court shall be commenced by a writ of summons, which shall be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action".

The High Court Rules also define "action" in O.1, r.1 as:

"a civil proceeding commenced by writ or in such other manner as may be prescribed by rules of court, R.S.C. but does not include criminal proceeding by the Crown".

The above rules clearly provide that every action in the High Court must be commenced by a writ of summons indorsed with a statement of claim or relief or remedy sought in the action. The rules also permit an action to be brought in the High Court in such "other manner".

One such "other manner" is by originating summons where a declaration is sought, as provided for under O.58 of the High Court Rules. Other originating manners or processes of commencing civil proceedings in the High Court provided for under the Rules or statues includes Notice of Motion under O.61 of High Court Rules, for prerogative writs, or judicial review, and Petition, such as in matrimonial, election or company winding up matters.

Notice of Motion under O.55

The present application by way of Notice of Motion is brought under O.55 of the High Court Rules. The orders sought are interlocutory or interim orders. In particular the application seeks an order restraining the Lands Court from hearing and determining a land boundary determination in CN 181/2010 until the Lands Court hear and determine the eviction proceedings filed by the applicant.

The requirement of the rules that the notice of motion be served upon a defendant who had been duly served with a writ of summons demonstrates that an application by way of notice of motion brought under O.55 is dependent on the substantive cause of action being in place in the first place. See rr. 8 and 9 of O.55. The application by way of notice of motion in this case does not show a cause of action.

The Court's jurisdiction to grant temporary injunctive relief

The Court's power to grant a temporary injunctive relief is depended on a substantive cause of action being placed before the Court. The principle is well settled in The Siskina [1979] AC 210 at 256. [1977] 3 All ER 803 where the Court said:

"A right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the plaintiff for the enforcement of which the defendant is amenable to the jurisdiction of the court. The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action".

There is no substantive cause of action being brought in this case. The notice of motion in this case is therefore incapable of conferring jurisdiction on the Court to grant the temporary injunctive relief.

Concurrent jurisdiction of the Court

A novel and interesting argument put by Mr Takabwebwe is that even if there is no substantive action brought in the High Court, the existence of the concurrent jurisdiction of the High Court with the Magistrates' Court would confer jurisdiction on the High Court to grant the temporary injunctive relief sought under the notice of motion. Ms Taoaba submitted that the action must be commenced in the High Court and the concurrent jurisdiction with the Magistrates' Court does not confer jurisdiction on the High Court to grant the order sought by the applicant.

The relevant provision in the Magistrates' Court Ordinance in section 34 which states as follows:

"34. No jurisdiction conferred upon any magistrate shall in any way restrict or affect the jurisdiction of the judges of the High court, but such judges shall have in all causes and matters, civil and criminal, an original jurisdiction concurrent with the jurisdiction of the several magistrates:

Provided that the judges of the High Court shall not have any first instance jurisdiction in respect of land causes and matters".

That provision confers on Judges of the High Court power to deal with matters which by law are for the magistrates to deal with. Put another way jurisdiction conferred on magistrates does not affect or restrict the power of judges to deal with matters which magistrates have jurisdiction to deal with.

The issue arising from Counsel's argument is therefore whether the eviction proceedings in the Magistrates' Court confer jurisdiction on the High Court to grant a temporary injunctive relief sought by the applicant. For the following reasons, the argument by Counsel for the applicant cannot stand.

First, the concurrent jurisdiction of the judges of the High Court with that of magistrates are concerned with causes and matters that are instituted in the Magistrates' Court. So that a judge of the High Court can deal with such matter or matters even if it is filed in the Magistrates' Court. The present case is not a matter instituted in the Magistrates' Court, rather it is an application brought in the High Court in Civil Case 195/2010 seeking an injunctive relief to restrain the Lands Court from hearing a boundary determination proceedings pending the determination of an eviction proceedings, also before the Lands Court.

Secondly, as section 34 of Magistrates' Court Ordinance envisages, concurrent jurisdiction exists so that more than one court has the authority over a matter or cause and as such has jurisdiction over the parties involved.

In the present case, the applicant comes to this Court seeking a temporary injunction in a Notice of Motion. No substantive cause of action has been filed. Presently the law is clear that the right to interim or interlocutory relief is not a cause of action in itself. It is merely ancillary and incidental to the existing cause of action. The Notice of Motion and, even the supporting affidavit, cannot be described as a cause of action. It is dependent on a pre-existing cause of action having been filed and commenced in this Court.

Conclusion

As no cause of action having been filed in this case, this Court has no jurisdiction to entertain the application for a temporary injunctive relief sought by the applicant in his Notice of Motion. The Court therefore declines to hear the application which is hereby struck out.

Should the applicant wishes to have his application dealt with again, by the Court, he should commence an action and file his application for the interlocutory orders. He can even file both the Writ of Summons and application at the same time.

ORDER: Application struck out. No order for costs.

Dated the day of October 2011

SIR JOHN MURIA
Chief Justice