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Tiara v Bare [2010] KIHC 18; Civil Case 168 of 2009 (8 February 2010)

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

High Court Civil Case 168 of 2009

BETWEEN:

TINA TIARA
TABOO TIARA MT MM
PLAINTIFFS

AND:

BATERIKI BARE
DEFENDANT

For the Plaintiffs: Mr Michael Takabwebwe
For the Defendant: Mr Banuera Berina

Date of Hearing: 8 February 2010

JUDGMENT

Application by the defendant for an order to strike out plaintiffs’ action upon the ground that the claim is an abuse of process, the matter having been determined in HCLA 38/06, HCCC 162/08 and HCCC 112/09.

The plaintiffs’ claim made by writ dated 22 September 2009 is an application "to have the judgment in HCLR 16/04 set aside on the ground that it has been obtained by fraud".

Put another way, the proceedings are an invitation to the Court to review the decision in HCLR 16/04. The decision:-

Ms Maitinnara concedes the review. Mr Berina asks that the decision of the Single Magistrate on 26 June 2004 be quashed and the case returned to the Magistrates’ Court for rehearing. All persons interested in the land plot 742A at Ambo, including the applicant Bateriki Baree be notified of the new hearing and given an opportunity to be present and to be heard.

Order accordingly.

The Statement of Claim contains a number of allegations summed up in paragraph 20 and in the prayer for relief:

As the result of the fraudulent and false representation made by the Defendant in High Court Land Review 16 of 2004, on 26 June 2004, that CN TM 20/04 was a case in which the boundary determination of land Bikennuka 742a was carried out, whereas in fact it was not a boundary determination case but a division or distribution of the said land into five (5) equal shares or subdivisions amongst the five siblings including the Plaintiffs, the High Court quashed the decision in CN TM 20/04 and returned to the Magistrates’ Court for rehearing.

WHEREFORE the Plaintiffs apply to have the judgment in High Court Land Review 16 of 2004 set aside on the ground that it has been obtained by fraud.

The High Court will review its own decision if the party applying for review is able to bring forward fresh evidence which could not have been known to it at the time of the original hearing or if the party can prove, strictly, fraud in the obtaining of the decision. Here the plaintiff is to rely on fraud.

Mr Takabwebwe addressed the Court in opposition to the application, indicating the facts upon which he relied to prove fraud. He also cited the decision of the Court of Appeal in Tominiko Titanri and Others v Ioane Iererua and Others (CA 16/09) in which the circumstances were somewhat similar. Neither his submissions nor the allegations in the Statement of Claim nor Tominiko Titanri’s case persuaded me against the application.

The High Court should not review the decision in HCLR 16/04.

The application is allowed. Order striking out the action.

THE HON ROBIN MILLHOUSE QC
Chief Justice