Office of the Attorney General v Kaitaake [2019] KIHC 111; Civil Review 11 of 2018 (13 August 2019)

IN THE HIGH COURT OF KIRIBATI 2019

CIVIL REVIEW NO. 11 OF 2018

[OFFICE OF THE ATTORNEY-GENERAL
[IN RESPECT OF DIRECTOR OF LANDS
[MINISTRY OF ENVIRONMENT AND
[LANDS AGRICULTURE APPLICANT
[
BETWEEN [AND
[
[ANTEREA KAITAAKE
[TOAWEA RAWARAWA
[ABEMAMA MAGISTRATES’ COURT RESPONDENTS

Before: The Hon Chief Justice Sir John Muria

23 July 2019

Ms Ruria Iteraera for Applicant
Mr Banuera Berina for Respondent

JUDGMENT

Muria, CJ: The applicant, Director of Lands, is seeking leave to apply for judicial review of the decision of the Magistrates’ Court in CN 01/2012 involving the land leased by the Government, namely land ‘Marena’ in Abemama. The Government leased the land for the Abemama Airfield since 1969.

2. The case CN 01/2012 in the Magistrates’ Court was a boundary determination between Anterea Kaitaake (first respondent) and
Toawea Rawarawa (second respondent). The applicant was not a party to that case, although the Government is a leasehold owner of the land. The proceedings in CN 01/2012 resulted in changes in the boundary between the first respondent and the other adjoining landowners. The changes resulted in the increase in the sizes of the respondents’ lands.

3. Not only that the new boundary increases the size of the land concerned, it also affects the Leasehold held by the Government over the use of the land as an Airfield. Thus the applicant felt that they should be notified of the hearing of CN 01/2012. It is argued that the applicant has an interest in the said land Marena and ought to have been notified of the case.

4. Since the applicants are not a party to CN 01/2012, they cannot appeal against it. Hence, their application by way of judicial review. Atanta and Others –v- Tabaua [2005] KICA 7; Land Appeal 01 of 2005 (8 August 2005), Kaotan –v- Junior Kum Kee [2012] KICA 5; Civil Appeal 6 of 2012 (15 August 2012).

Issues

5. There are two issues for the Court to determine in this application. The first is whether the applicant, not being a party to the case in CN 01/2012, has an interest in the matter sufficiently to be affected by the decision of the Magistrates’ Court in CN 01/2012 entitling the Director bring this application.

6. The second issue is if Director has sufficient interest, whether the Court should grant leave to him to challenge the decision of the Magistrates’ Court in CN 01/2012.

Consideration and decision

7. Ms Iteraera of Counsel for the applicant submitted that the applicant holds a lease over the land in question. The Government therefore has an interest in the land in question since a lease is an interest in land. I agree.

8. In fact in paragraph 4 of the affidavit of the first respondent,
Anterea Kaitaake, he confirmed that the applicant has a lease over the land in question. The first respondent, however, went on to qualify his statement by saying that the applicant’s role is confined only to payment of rent for the use of the said land.

9. There is no suggestion that the applicant has abrogated his obligations as a leaseholder of the land in question. Thus the applicant’s rights and obligations as leaseholder of the land still subsist and are protected by law. See
Street –v- Mountford [1985] UKHL 4.

10. Mr Berina of Counsel for the first respondent submitted that the applicant cannot prevent adjoining landowners from agreeing to change the boundary of their land. That may well be true but the parties to the case in point knew that the applicant has a lease over the land in question and as such has a vested interest in the said land. Notice of the case CN 01/2012 between the first respondent and second respondent should at least have been given to the applicant who is clearly an interested party in this case.

11. The question of whether leave should be granted or not is to be decided taking into account various factors, including the delay in bringing the application to the Court for judicial review, the lack of notice of the proceedings in the Magistrates’ Court to an interested party is a breach of natural justice, and any prejudice to the respondent if leave is granted. See Kaotan –v- Junior Kum Kee (above); Atanta and Others –v- Tabaua (above; Batee –v- Trustee for Jehova’s Witness Church [2006] KICA 17; Land Appeal 05 of 2005 (26 July 2006); and Tabora –v- Uruatarawa and Another [2009] KICA 9; civil appeal 04 of 2009
(26 August 2009).

12. In this case, the question of delay no longer matters. The respondent has conceded the applicant’s application for extension of time.

13. There is no dispute in this case that the applicant was not notified of the proceedings in CN 01/2012. This Court has found and the first respondent has conceded that the applicant was an interested party in CN 01/2012. Clearly, by not giving notice to the applicant of the proceedings in CN 01/2012, the applicant was denied natural justice as held in Tabora –v- Uruatarawa (above).

14. In a case of judicial review, denial of natural justice is not only a powerful ground for granting leave, but it is also fatal to the decision of the Court that is sought to be impugned. This clearly must apply in the present case.

15. It is submitted on behalf of the first respondent that all that the applicant has to do is to pay out the rent in accordance with the order of the Magistrates’ Court in line with boundary now set. For the moment, that cannot be done by the applicant as the order that obliges him to pay the rent is now challenged for irregularity. The legality of the order made in CN 01/2012 is now challenged and this Court will have to deal with that challenge first.

16. In addition, the applicant was not a party to CN 01/2012. The order made in that case is therefore not binding on the applicant. As such the applicant is not obliged to abide by the terms of the order made by the Court in CN 01/2012.

17. On the issue of prejudice, I feel no prejudice will be caused to the respondent if leave is granted in this case. The applicant’s obligation to pay rent to the respondents under the existing lease agreement continues to apply. Only the altered boundary is in dispute and that has to be first sorted out, with the applicant being given the opportunity to be heard in the process.

18. In the circumstances of this case and for the reasons given, leave must be given to the applicant to bring certiorari proceedings in this case. Leave is granted.

19. I also consider the possibility of the applicant succeeding in the substantive application itself for certiorari. In the light of my finding that the applicant has been denied natural justice when CN 01/2012 was heard and decided by the Magistrates’ Court, I feel that in all likelihood, the applicant’s substantive application will succeed.

20. In the circumstances of this case, and as stated in Tabora –v- Uruatarawa, “rather than putting everyone to the trouble of traversing the merits again” in this Court, and in order to avoid multiplicity of proceedings I am prepared to deal with the certiorari application now and I do so. Having considered the matter anxiously, I conclude that certiorari must be granted.

21. Leave to issue certiorari is given and certiorari is granted ordering the decision of the Magistrates’ Court in CN 01/2012 to be brought into this Court for the purpose of it being quashed.

Order accordingly.

Dated the 13^th day of August 2019

SIR JOHN MURIA
Chief Justice