Tongaai v Mone [2020] KIHC 17; Civil Review 12 of 2018 (24 July 2020)

IN THE HIGH COURT OF KIRIBATI 2020

CIVIL REVIEW NO. 12 OF 2018

[BAURO TONGAAI APPLICANT
[
BETWEEN [AND
[
[MARIA MONE FOR KN IBEATU
[ANTIERA BWEBWENIBEIA FOR KN MARIA
[TEMWANO TEAEKI FOR KN TIAEKI
[TAONIU FOR KN TEWANIMONE
[TARATAAKE TENEBO FOR KN UTIRE RESPONDENTS

Before: The Hon Chief Justice Sir John Muria

3 July 2020

Mr Banuera Berina for Applicants
Ms Taoing Taoaba for Respondent

JUDGMENT

Muria, CJ: This is an application for leave to issue writ of certiorari against the decision of the Magistrates’ Court in case No. 280/08, which decision was delivered on 25 May 2008. The extension of time to file the application for leave was granted with no objection from the respondents on 26 March 2019.

2. This application arose out of a dispute over the estate of one
Ekemau Tourakai who died issueless. The estate concerned comprises of the following lands: Tekokona 576-a, Tabonterikiai 585m, Teanimanoia 647-o and Etanimakin 662-i/1. The lands were inherited by Ekemau Tourakai from his father.

3. In Case Number 88/05, the Court ordered that Tenebo Utire mtmm, with the issues of Ibeatu, issues of Nei Maria, issues of Teaeki, issues of Tewanimone and Bauro Tongaai (applicant) be registered over the lands Tekokona 576-a, Tabonterikiai 585m, Teanimanoia 647o and Etanimakin 662-i/1 after the late Ekemau Tourakai. The Family tree confirmed that the only brothers who had issues were Angabeia, Tourakai and Tongaai. Tourakai’s next-of-kin were Angabeia and Tongaai.

4. The question in Case 88/05 was concerned only with the distribution of the estate of Ekemau Tourakai who was Tourakai’s issue. However,
Ekemau Tourakai was issueless and so the distribution was made by the Court as stated in paragraph 3 above.

5. In Case 280/08, the application before the Magistrates’ Court was for the cancellation of the name of Tenebo Utire from the Certificate of Ownership. The Magistrates’ Court refused the application. Consequently, Tenebo Utire is still registered as one of the owners of the lands in question. Clearly, if the decision of the Magistrates’ Court stopped there in terms of the application before the Court, there would probably be no cause for complaint by the applicant in this case.

6. The Magistrates’ Court, however, went further and made a distribution order which had the effect of altering the Magistrates’ Court’s decision in Case Number 88/05. That plainly was a decision which the Magistrates’ Court had no jurisdiction to make. There was no appeal to the High Court against the Magistrates’ Court’s decision in Case Number 88/05. As such the distribution order made in Case Number 88/05 remains very much intact and effective.

7. The Magistrates’ Court’s decision which has the effect of altering its earlier decision in Case Number 88/05 was not the only problem arising from its decision in Case 280/08. The Magistrates’ Court’s decision on distribution in Case Number 280/08 also has effected the rights of those entitled to distribution in the estate of Ekemau Tourakai under Case Number 88/05.

8. One of those affected by the decision is the applicant who was not summonsed to attend Court in Case Number 280/08. The respondents accepted in the Magistrates’ Court that the applicant was not summonsed. It was simply assumed by the respondents that the applicant would accept the distribution order made by the Magistrates’ Court.

9. As it now turns out, the applicant is aggrieved by the Magistrates’ Court’s order on the distribution in Case Number 280/08. Had he been summonsed to attend Court, he could have expressed his reasons for not accepting the Magistrates’ Court’s decision.

10. In his affidavit in support of his present application, the applicant deposed to the reasons why he felt aggrieved by the Magistrates’ Court’s decision. Those reasons are matters for substantive hearing, most appropriately reserved for the Magistrates’ Court in its Lands jurisdiction. This Court, in an application such as this, is only concerned with the procedure taken by the Magistrates’ Court in coming to its decision.

11. In this case, there are two fundamental vices, in my view, which present cogent reasons for granting the applicant the reliefs he sought in his application. See Teuei –v- Toanikai [2015] KICA 1; Civil Appeal 01 of 2015 (19 August 2015). The first is the Magistrates’ Court’s lack of jurisdiction to alter its decision in Case Number 88/05. The second is that the breach of the rule of natural justice by the lack of notice given to the applicant at the hearing in Case Number 280/05: See Terenga –v- Tooma [2011] KIHC 33; Civil Case 179 of 2010 (29 July 2011).

12. For the above reasons, the application for leave to issue writ of certiorari is granted. In the light of the case authorities referred to, certiorari is ordered to be issued to bring into this Court the decision of the Magistrates’ Court in Case Number 280/08 given on 28 May 2008 for the purpose of it being quashed.

13. Costs to the applicant, to be taxed if not agreed.

Order accordingly.

Dated the 24^th day of July 2020

SIR JOHN MURIA
Chief Justice