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

Civil Appeal 6 of 2006

BETWEEN

BOREREI URIAM
Appellant

AND

TEBAU URIAM
KABUREREI URIAM
TABURONGO URIAM
Respondents

Before:	 Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for Appellant: Banuera Berina 
Counsel for Respondents: Taoing Taoaba

Date of Hearing: 22 July 2006
Date of Judgment: 26 July 2006

JUDGMENT OF THE COURT

1. In a judgment delivered on 31 March 2006, the Chief Justice, having first granted a necessary extension of time, made an order of certiorari; then, the same day, having convened the Court in its lands jurisdiction, he delivered a judgment reviewing and quashing the decision of the South Tarawa Magistrates Court in CN 126/99. This appeal is against those orders.

2. The same parties were before this Court in 2004: see our judgment in Land Appeal 2/2004. The present respondents were then appealing against the Chief Justice’s refusal of their application for review of that same Magistrates’ Court decision. This second application was no doubt prompted by certain observations we made obiter in our judgment in that appeal.
 
3. The facts may be stated very briefly. The named parties are brothers and their dispute is over the ownership of land that was owned by their father. In 1999, some time after the father’s death, the present appellant applied to have the land registered in his sole name. He did not tell his brothers that he was doing so, and presumably did not tell the Magistrate about his brothers. On 9 February 1999, in case 126/99, the Magistrate understandably enough granted his application. Some 19 months later the appellant told his brothers what had happened. After taking legal advice, they commenced proceedings to have the matter put right. 

4. They first attempted to appeal against the decision in case 126/99, but their appeal was dismissed on the basis that they had not been parties to that decision. They then applied for review of that decision, but again they failed. Their appeal to this Court failed too, because counsel for the appellant accepted that the application had been brought under s. 81 of the Magistrates’ Courts Ordinance, which has a time limit of 12 months.

5. In concluding our judgment, we observed:

The remedy that may be available to a person who was not a party to the proceedings to seek to have a decision in those proceedings reviewed when the time for applying under s81 has expired is by exercising the procedure for prerogative writs in accordance with Order 61 of the High Court (Civil Procedure) Rules, 1964. O.61 r.3 requires any such application to be brought not later than six months after the date of the proceedings. However, O.64 r.4 gives the Court power to enlarge the time for bringing such an application.

If the appellants were to apply for an order extending the time to apply for leave to issue writes of certiorari and mandamus, it will be for the High Court to decide whether the time should be enlarged and, if so, whether leave should be granted. On those issues we express no opinion.

6. In his judgment in the present case, the Chief Justice quoted these observations and said:

Ever since, this Court has been regarding those words as a hint to avoid time limits……..The Court of Appeal was speaking obiter and the High Court is not bound by authority. However if justice is to be done then some way must be found in some cases to avoid the prohibition in section 81 (4) of the Magistrates’ Courts Ordinance against applications for review after more than 12 months. The Court has most willingly taken the hint and intends to keep on doing so unless the Court of Appeal has second thoughts.

7. The Chief Justice resisted Mr. Berina’s urging that he should not take the hint, and so in this case Mr. Berina had the task of persuading us to have second thoughts. His task is not rendered any the easier in view of our decision last year in Karinawa Atanta & Ors v Nei Roote Tabaua, Land Appeal 1/2005, judgment 8 August 2005 in which we held that the prerogative powers recognized in section 89(1) of the Constitution are not subject to the time limit of 12 months set by section 81(4) of the Magistrates’ Court Ordinance.

8. Mr. Berina has put forward two grounds of appeal. The first is that certiorari proceedings are subject to the six month time limit stipulated by Order 61 rule 3 of the High Court (Civil Procedure) Rules 1961, and that that limit cannot be extended under Order 64 rule 5, which he contends deals with the time appointed for the doing of an act or the taking of steps by a party to proceedings already instituted. In other words, the requirement of Order 61 rule 3 is mandatory and cannot be excused.
 
9. This point was considered in the Karinawa Atanta case, where we said:

In isolation it might have been difficult to decide whether the more specific language of [Order 61, rule 3] overrides the more general language of [Order 64, rule 5]. But for present purposes we are satisfied that [the latter] must have been intended to prevail. Only then could full effect be given to s.89 of the Constitution Act and the proper inference to be drawn as to Parliamentary intentions.

10. Mr. Berina has not persuaded us to take a different view.

11. The second ground of appeal is that the appellant’s registered title is indefeasible, and therefore cannot be defeated by a High Court order quashing the Magistrates’ Court order that confirmed the title. It can be defeated only by a successful appeal.

12. In advancing this submission, Mr. Berina emphasised the distinct and separate nature of land law in Kiribati. As he pointed out, the High Court does not have original jurisdiction in land matters, for these are solely within the jurisdiction of the Magistrates’ Courts, while in its appellate jurisdiction the Judge does not sit alone as in civil appeals, but must sit with at least two Magistrates. This means, he contended, that lands cases are neither civil nor criminal, but in a class of their own. Therefore, section 89 of the Constitution, which confers on the High Court "jurisdiction to supervise any civil or criminal proceedings before any subordinate Court" does not apply to lands cases. 

13. We cannot accept this argument. While it is the case that the Magistrates’ Court Ordinance deals separately with land causes and matters, it is also true that the Court of Appeal Act does not. Under that Act, appeals in land cases (which are provided for by section 10(1)(b)) are treated as civil cases, the only distinction the statute draws being between civil cases and criminal cases. That simply confirms our view that there are but two classes of case, civil and criminal, and that land cases are no more than a division of civil cases for which separate provision is made, and not a distinct class. 

14. We add that the prerogative writs are an inheritance from the common law, and have a most important role to play in the administration of justice. Their scope and effectiveness are therefore to be excluded or limited only by clear and express statutory provision. There is no such provision in Kiribati.

15 This conclusion is not inconsistent with the indefeasibility of title conferred by section 4 of the Native Lands Ordinance. Indefeasibility is a principle designed to protect a registered proprietor against adverse claims of which he did not have notice; and, in consequence, to protect a bona fide purchaser from the registered proprietor from any flaw in the latter’s title of which he, the purchaser, did not have notice. In a case such as the present, an order quashing the decision of a Magistrates’ Court destroys the very basis on which the title is founded, and without which it could not have been created. It is a consequence of the registered owner’s own acts or defaults, of which he obviously had notice. He cannot rely on indefeasibility in those circumstances. 

16. It follows that the appeal must be, and it is, dismissed. The appellant must pay the respondents’ costs, in an amount to taxed unless the parties can agree upon it.

Hardie Boys JA
Tompkins JA
Fisher JA