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Matai v Arobati [2025] KIHC 100; Civil Review 04787 of 2024 (20 March 2025)

IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction
(South Tarawa)

HIGH COURT CIVIL REVIEW NO: 2024-04787

BETWEEN
RABAERE MATAI _________________________ Applicant

AND
EUTEE AROBATI ______________________ 1^st Respondent

NAIBUNAKI TERAOI ___________________ 2^nd Respondent

Date of Hearing: 25 February 2025

Appearances: Mr. Banuera Berina for the Applicant

Ms. Batitea Tekanito for the 1^st Respondent

No appearance by the 2^nd Respondent

JUDGMENT

AMTEN, J.

When this case was called for mention, the 2^nd respondent did not appear. Counsel for the applicant informed the court that they have done all they can do to effect personal service, but the 2^nd respondent was nowhere to be found. He sought leave of this court that substitute service be ordered. I see no reason why this cannot be done. An order for substitute service was then made. Today, the 2^nd respondent still did not appear. Pursuant to Tebanna v Tebanna^[1], this court can now proceed in his absence.

The case before me is an application for an extension of time to apply for an order of Certiorari. Thankfully, counsel for the 1^st respondent indicated that she would not oppose such leave. Leave to extend time was therefore granted. What now remains is leave to apply for an order of Certiorari, which is now challenged.

The pleadings revealed that this application was brought under Order 61 rule 2 of the High Court (Civil Procedure) Rules, 1964, where the applicant sought leave for an order of Certiorari to quash the decision of the Magistrates’ Court in case number Betlan 754/19 delivered on 29/11/2019. The application is supported with an amendment statement dated 17/02/2025 and by the affidavit sworn by the applicant on 23/09/2024. The application was opposed by the 1st respondent through a counter affidavit sworn by Mr Anre Murdoch.

In support of the application, Mr Berina submitted that in 2014, the 2nd respondent approached the applicant and offered to lease his land, Natari 794n/1a (herein referred to as the “property”), to him. The applicant, however, offered to buy the property for the sum of Forty-Eight Thousand Dollars ($48,000.00). The 2^nd respondent accepted the offer, and the applicant paid Ten Thousand Dollars ($10,000.00) upfront. He then moved onto the property and lives there. During his occupation, he did repairs and maintenance to the property and its seawall; he put in a lot of time and effort, especially on the seawall. He also incurred, as a result, substantial expenses in repairing and maintaining the seawall, which he claimed amounted to Seventy-Three Thousand Dollars ($73,000.00). The 2^nd respondent had also received money for his travel to the Marshall Islands and later on received more for the financial assistance of one of his children in New Zealand. These funds all came from the applicant.

Whilst the applicant was enjoying living on the property and believing that he now owns the property, the 1^st and 2^nd respondents went to court to have the name of the 1st respondent registered on the said property. This was done in Betlan 754/19. The applicant never knew of this and was not even invited.

After securing her title, the 1^st respondent then initiated eviction proceedings against the applicant in Betlan 43/20. It was then that the applicant learnt that the property he was in possession of and believed belonged to him had been sold to the 1st respondent by the 2^nd respondent. The eviction proceedings were granted, and he appealed. His appeal was dismissed, and hence this application.

Counsel argued that although the 1^st respondent might have a legal title over the property, the applicant has an equitable interest in the property and should have and ought to have been invited during the registration of the 1st respondent on the property. He derived his interest in the property pursuant to the agreement he made with the 2^nd respondent. In contract law, the 2^nd respondent is bound to honour the terms of their agreement, and more so since part payment has been done without his objection. There was not a time the 2^nd respondent withdrew from this arrangement, which had led the applicant to assume that it is only a matter of paying the outstanding, and the title would be transferred to him. All these crucial factors were not raised during the proceedings in Betlan 754/19, as he was not invited. He has been denied this right. When he was invited to the eviction proceedings, it is understandable that he cannot establish such a right.

As for the appropriate remedy, Mr Berina submitted that the normal remedy in breach of contract is by way of damages only. However, he reminded this Court that equitable remedies are also available where damages are inadequate. He submitted that the only appropriate remedy for the applicant is by specific performance.

In reply, Ms Tekanito submitted that what the applicant is attempting to do is an abuse of process. According to her, the applicant is using this application as another appeal attempt. She pointed to the fact that the applicant did appeal against the eviction proceedings and failed. This application she submitted is another futile attempt.

She further argued that the applicant has every chance in Betlan 43/20; he had argued his case before the court then. That was the time for him to ascertain his right over the property, to which he did. He even invited the 2^nd respondent. Yet, of all these, the court decided against him. He then appealed; this is another chance for him to argue his case in the High Court but failed.

She further argued that the applicant cannot show any illegality, irrationality or impropriety in the decision complained of; hence, his application must be dismissed with cost.

Having considered the competing arguments for and against the application, the substantive issue for determination is whether this application qualifies the test for granting leave for Certiorari^[2].

The law is settled to the effect that an application for Certiorari (and for any other prerogative orders) in the High Court must be preceded with an application for leave, which, if granted, will be followed by the main application for the particular prerogative order. Under Order 61 Rule 2(1)^[3], this precondition is mandatory; unless leave is granted, the application for a prerogative order must not be entertained. In this court, in the case of Kaotan v Kum Kee^[4], Chief Justice, Sir John Muria, had this to say:

“The Rules – O.61 r.2 – is mandatory. It starts with the words "No application" shall be made for an order of mandamus, prohibition or certiorari. Rule 2(1) states:

"(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this Rule".

There is no ambiguity in the language of the above provision. The words used in that provision are clear and unequivocal. No application shall be made unless leave has been granted. The making of an application for certiorari is subject to leave being first granted to do so.”

Understandably, this is a power that should be exercised cautiously, and it is only available in cases, as was correctly pointed out by Ms Tekanito, where the judgment of the lower court shows a lack or excess of jurisdiction, manifest legal error, fraud, prejudice or non-observance of the rules of natural justice, such as violation of the right to be heard.^[5]

For leave, the applicant must be able to satisfy the court of the following:

(a) the applicant has made any arguable case to justify the filing of the main application,
(b) the applicant has acted promptly, and
(c) the applicant has shown sufficient interest to warrant the grant of leave.

The whole purpose of the above is to ensure that the applicant is only allowed to proceed to substantive hearing upon satisfaction by the Court that there is a fit case for further consideration. This position is fortified in the case of Kaotan^[6]

“The purposes of seeking leave are first, to ensure that frivolous, vexations or hopeless applications are eliminated and, secondly, the applicants will only be allowed to proceed with their substantive application for certiorari, if the Court is satisfied that they have a case merit further consideration.”

A more elaborate comment can be found in the case of Republic v Land Dispute Tribunal Court Central Division and Another^[7], where it was held that:

“....leave should be granted, if on the material available the court considers, without going into the matter in depth, that there is an arguable case for granting leave and that leave stage is a filter whose purpose is to weed out hopeless cases at earliest possible time, thus saving the pressure on the courts and needless expense for the applicant by allowing malicious and futile claims to be weeded out or eliminated so as to prevent public bodies being paralysed for months because of pending court action which might turn out to be unmeritorious.”

Flowing from the above authorities, it is plain clear that the grant of leave to commence judicial review proceedings is not a mere formality. It will also not be granted as a matter of course; rather, the applicant has to disclose the existence of prima facie grounds for the grant of judicial review reliefs. In Office of the Attorney General v Kaitaake^[8], this court had to say this:

“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).”

Beyond our horizon, the East African Court of Justice, in Re Harji Transport Services^[9], had this to say:

"The ground must, at its face value, be based on the facts as averred by the applicant in the verifying affidavit and must prove not only that the applicant has sufficient interest in the matter, but also that he has an arguable case for grant of leave”.

The Halsbury's Laws of England^[10], is elaborative on the requirement for the applicant to have sufficient interest when applying for leave for judicial review, as follows:

"When dealing with an application for leave to apply for judicial review, the first and foremost consideration which the court must determine is whether the applicant has shown that he has sufficient interest in the matter to which the application relates”.

On what amounts to a prima facie case, I found comforting the decision of the High Court of Kenya, which I consider persuasive, in Republic v Director General of Directorate of Criminal Investigation and Another^[11]. It says:

“A prima facie case in my view, is made out when the applicant's case if true may justify the grant of the order of judicial review. Where the facts disclosed, even if true, cannot possibly justify the grant of judicial review remedies, a prima facie case for the purpose of judicial review cannot be said to have been made out."

In this application, the facts deposed by the applicant in his affidavit and submission made by Mr Berina, undoubtedly speak for themselves to the effect that there was a binding agreement between the applicant and the 2^nd respondent. This contract was for the former to buy the latter’s property in the sum of Forty-Eight Thousand Dollars ($48,000.00). Ten Thousand Dollars ($10,000.00) had been paid upfront as consideration. There were other payments made by the applicant on the demand of the 2^nd respondent.

Despite all this, the 2^nd respondent, behind the back of the applicant, sold the said property to the 1^st respondent for Five Thousand Dollars ($5,000.00). The fact that the 1^st respondent had secured her title over the property he resided on was not known to him until the eviction proceedings in 2020. He has been proactive in asserting his right over the said property; he has not slept on his right.

The 1^st respondent was aware that the applicant was living on the property. This is evident from the eviction proceedings she instigated against the applicant in Betlan 43/20; she must have seen him occupying the property. These facts were never disputed, only that they challenged the fact that the applicant's application was an abuse of process and that he has not been denied natural justice, as he was able to present his case in case Betlan 43/20 in the Magistrates’ Court and then again in HCLA 1/23 in the High Court.

My view is, as mentioned earlier, the facts contained in the applicants' affidavits speak for themselves, and if true, would justify the grant of the intended judicial remedy. It is undisputed that there was a prior agreement between the applicant and the 2^nd respondent and that such agreement has been partly performed. This agreement was done in 2014, five years before the 2^nd respondent sold the same property again to the 1^st respondent. It was also undisputed that the applicant was in possession of the property, which was the subject-matter of Betlan 754/19 and Betlan 43/20, at all material times.

It cannot be denied that the applicant has been led to believe that he would be the owner based on the arrangement with the 2^nd respondent. He has relied on that assurance and has directed his affairs because of it. He not only paid some money, but he had also moved on to the property. Not only that, but he had spent a substantial amount on repairing and maintaining the property. As a result of the assurance not being fulfilled, the applicant suffered irreparable harm. These facts show a prima facie case on propriety estoppel and unjust enrichment.

Based on the aforementioned, I am satisfied that the applicant has demonstrated sufficient interests and an arguable case.

Suffice it to say that the applicant has made out a case, prima facie, to warrant him leave to file the substantive application for Certiorari. Leave is therefore granted to the applicant.

Normally, as leave is granted, the substantive application for Certiorari should now be issued and set down for hearing. On second thought, I feel that counsels have already said all that they could usefully say on the merits of the Certiorari application. There is overwhelming evidence to justify making the order of Certiorari sought by the applicant. It would be unwise and pointless to call parties again only to present similar arguments; it would be a waste of their precious time and resources.

Consequently, leave having been granted, the order of Certiorari should also be issued. An order of Certiorari shall issue bringing into this Court for the purpose of it being quashed the decision of the Magistrates’ Court in Betlan 754/19 delivered on 29^th November 2019.

Order accordingly, with costs to the applicant to be taxed if not agreed.

Dated this 20^th March 2025.

.............................................
HON JUSTICE A T AMTEN

PUISNE JUDGE

^[1] [2021] KICA 8; Land Appeal 4 of 2019 (1 December 2021)
^[2] Including the other prerogative orders.
^[3] High Court (Civil Procedure) Rules (1964)
^[4] [2011] KIHC 42; Civil Case 131 of 2011 (18 November 2011)
^[5] see P. Artemis Compilation "Privileged Warrants, Principles and Cases", p. 109 etc., Regarding the Application of A. Konstantinidis (2003) 1(B) A.A.D. 1298, Marewave Shipping & Trading Company Ltd (1992) 1(A) A.A.D. 116
^[6] Ibid note 4
^[7] [2006] 1 EA 321
^[8] [2019] KIHC 111; Civil Review 11 of 2018 (13 August 2019)
^[9] (1961) EA 88
^[10] Ibid note 1
^[11] Misc. Application No. 535 of 2016 (unreported)