Teteki v Iererua [2023] KIHC 44; Civil Case 19 of 2023 (24 November 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 19 OF 2023

BETWEEN:
KAATO TETEKI FOR FAMILY
Applicant

AND:
IOANE IERERUA FOR FAMILY
Respondent

Date of Hearing: 9 NOVEMBER 2023
Date of Judgment: 24 NOVEMBER 2023

Appearances: Mr Titabu Tabane for the Applicant
Mr. Banuera Berina for the Respondent

JUDGMENT

Introduction:

1. An extension of time to apply for leave to apply for an order of certiorari was granted on 22 September 2023. The substantive application for leave to apply for an order of certiorari has five grounds, as listed below;
   
   1. The case involved the rehearing of CN 63/03 as ordered by HCLR 16/2003,
   2. Betlan 405/15 proceeded by addressing the only issue raised in HCLR 16/2003 of whether Rani Kaewaka (the appellant therein) was present at the hearing in CN 63/03 or not,
   100. Betlan 405/15 did not proceed to rehear the case 63/03 as ordered by HCLR 16/03,
   4. As the case has not properly been disposed of as required by a full hearing as ordered, the only judgment that Betlan 405/15 came to was that Nei Rani Kaewaka was present at the hearing of 63/03 which had been quashed by HCLR 16/03,
   5. Thus, Betlan 405/15 failed to address the issue of fraud as required.
      

Submissions and Court Analysis:

2. Basically, the applicants' argument is as stated above from paragraph 1(a) to (e).
   
3. For the respondent, the claim that the magistrate court in Betlan 405/15 failed to rehear the claim of fraud as ordered by the High Court in HCLR 16/03 must fail as such claim was not before that court.
   
4. After reading the decision of Betlan 405/15, I find that although the subject matter of the appellants’ case in Betlan 405/15 was about the recovery of their land Banga 644e which was taken by fraud, the court’s decision specifically stated that the fraud raised by the appellant was about the lie of Nei Rani Kaewaka in HCLR 16/03 that she was not present in EA 63/03. The Single Magistrate dealt with this particular fraud and ruled that Rani Kaewaka lied in HCLR 16/03. Therefore, I agree with the respondent.
   
5. The appellant would have been correct in their claim had they raised in Betlan 405/15 the need to rehear 63/03 as ordered in HCLR 16/03 or based their argument of fraud on the same fraud raised in EA 63/03. None of these were reflected in the decision of Betlan 405/15 as issues of consideration. Therefore, the magistrate court in Betlan 405/15 had properly heard the matter in full and dealt with all the issues raised before it, and none of these issues concerned the same fraud raised in EA 63/03 or the rehearing of EA 63/03.
   
6. The applicant's affidavit only stated their belief that the magistrate court in Betlan 405/15 was supposed to deal with the above issues but did not. Unfortunately, no other evidence was submitted to support that. In the absence of such, I accept the respondent’s submission that the decision specifically mentioned that the fraud raised was about the lie Rani Kaewaka had told the High Court in HCLR 16/03 that she did not attend the hearing of EA 63/03. Therefore, I see no need for a review.
   

Conclusion:

7. In light of the above reasons, this Court makes the following decision;
   1. The application for leave to apply for an order of certiorari is not allowed.
   2. Cost is awarded to the respondent, to be agreed or taxed.
      

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice