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Bwataroma v Attorney General [2006] KICA 13; Civil Appeal 02 of 2004 (26 July 2006)

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

Civil Appeal 2 of 2004

BETWEEN:

RAION BWATAROMA, BINATAAKE TAWAIA
on their own behalf and representing VOTERS electing at the National Election in November and December 2003
Appellants

AND

RAION BWATAROMA, BINATAAKE TAWAIA
on their own behalf and representing VOTERS electing for the Beretitenti in February 2003
Appellants

AND:

Attorney General on behalf of the SPEAKER in the Maneaba ni Maungatabu
and the CHIEF ELECTORAL COMMISSIONER
Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Appellants: In person (Mr Tawaia)
Counsel for respondent: The Solicitor General

Date of hearing: 21 July 2006
Date of judgment: 26 July 2006

JUDGMENT OF THE COURT

1. This was an appeal from a decision of the High Court of 5 November 2004 dismissing the appellants’ application for a declaration that the Speaker’s dissolution of the Maneaba ni Maungatabu on 27 March 2003 was invalid. At the hearing of this appeal on 21 July 2006 we dismissed the appeal and ordered the appellants to pay costs of $500. We now give brief reasons for that decision.

2. The validity of the Maneaba dissolution on 27 March 2003 was first challenged in proceedings brought by Willie Tokataake and others on the day following the dissolution. In those proceedings the plaintiffs contended that the dissolution was invalid on the ground that a confidence vote had not been determined against the government by a "majority" of all members of the Maneaba. The proceedings failed in the High Court (decision of Chief Justice 8 April 2003) and again in this court (Willie Tokataake v Attorney-General Civ Ap 1/2003 judgment
23 April 2003).

3. On 2 May 2003 the present appellants issued their own proceedings challenging the validity of the dissolution. Those proceedings were also based on the contention that the confidence vote had not been determined against the government by a "majority" of all members of the Maneaba, although the argument was rephrased. Those proceedings also failed, both in the High Court (decision of Chief Justice 22 May 2003) and in this court (Bataroma and Tawaia v Attorney-General (Civ Ap 2/03, judgment 23 August 2004).

4. Two months later, on 20 October 2004, the appellants issued fresh proceedings in the High Court, essentially arguing that this court’s decision of 23 August 2004 was wrong. The application having been dismissed by the Chief Justice, the appellants came to this court on 21 July 2006 to re-argue the point.

5. At the hearing on 21 July 2006 Mr Tawaia elected not to pursue a preliminary application for new judges to be substituted. He indicated that he was content to proceed with the bench as constituted.

6. On the substantive appeal Mr Tawaia did not dispute that the issue was the same as that which had been determined by this court on 23 August 2004. He candidly acknowledged that "There is nothing new but only the presentation is restructured so the key issue will be easier to detect."

7. There is, of course, no answer to the obstacle that res judicata precludes the current proceedings. There is an identity of parties, issues, and interests, between the proceedings which the appellants launched in 2003 and those which they launched in 2004.

8. Mr Tawaia argued that he could overcome the res judicata doctrine by relying upon s 13(4) of the Law of Kiribati Act 1989. Section 13(4) is concerned with the binding nature of precedents where a decision between one set of parties is cited in litigation between others. It has no application to successive proceedings between the same parties.

9. For those reasons we dismissed the appeal and ordered the appellants to pay the respondent costs of $500.

Hardie Boys JA
Tompkins JA
Fisher JA