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Toaea v Toaea [1999] KIHC 25; HCLR 32.97 (22 April 1999)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HIGH COURT LAND REVIEW 32/97

BETWEEN:

BERU TOAEA
Applicant

AND:

TAWAIA TOAEA
Respondent

JUDGMENT ON REVIEW

By application dated 6 April 1999 the applicant, Beru Toa, seeks a review of the judgment of Single Magistrate Boutu Bio in the Aranuka Magistrates' Court (Lands) case no. 34/97 delivered on 17 March 1997.

The applicant filed an appeal against the decision on 4 April 1997. However, he was not a party to the case and so had no right of appeal. Apparently this was realised only recently when the applicant consulted the People's Lawyer.

The applicant claims that he received incorrect advice from the Court Clerk in Aranuka, who should never have accepted his Notice of Appeal. That would appear to be the case. It is submitted on behalf of the applicant that, as a consequence, for two years he has laboured under the mistaken impression that his appeal would be heard on the occasion of the High Court's next visit to Aranuka, and that in the interests of justice his Notice of Appeal ought to be regarded as an application for review pursuant to section 81 of the Magistrates' Court Ordinance (Cap. 52). If this were allowed, the limitation period imposed by subsection (4) of section 81 would be avoided. That provision reads as follows:

"81(4) The powers conferred by this section shall not be exercised in respect of any case after the expiration of 12 months from the date of the passing of the sentence or the giving of judgment, order or decision terminating the proceedings in such case in the magistrates' court, and in respect of which the High Court shall not up to then have taken any action".

In our view, those words are plain and unambiguous and mean that the High Court cannot review cases such as the present one where more than 12 months have expired since judgment was delivered. The Statute does not give the High Court power to enlarge that time.

Nevertheless, it must be said that the applicant suffered a considerable injustice as a result of the Single Magistrate's decision in case no. 34/97. Although it was known to the court in that case that the subject land was owned by the eldest brother, i.e. the present applicant, the Single Magistrate entertained an ex parte application by the applicant's brother to be registered as the owner of certain pits on the subject land. The Single Magistrate ordered that the brother be registered as the owner of the pits without the applicant having been summoned to come to court so that his attitude to the claim could be ascertained. This was a most extraordinary omission by the Single Magistrate and was contrary to normal procedure. As it turned out, the applicant did not agree with his brother's claim but was deprived of the opportunity of saying so.

The applicant's purpose in seeking a review was to have the Single Magistrate's decision set aside and a rehearing ordered so that he could present his case. In our opinion, such a result would accord with justice. Although a review is out of time, the High Court has power under section 89(1) of the Constitution to make orders to ensure the due administration of justice in subordinate courts. That provision is the following terms:

"89(1) The High Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court".

Pursuant to that jurisdiction, we order that the decision of the Single Magistrate in case no. 34/97 be set aside and that the case be remitted to Aranuka Magistrates' Court (Lands) for retrial.

THE HON R B LUSSICK
Chief Justice
(22/04/99)

TEKAIE TENANORA
Magistrate
(22/04/99)

BETERO KAITANGARE
Magistrate
(22/04/99)