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Tenangibo v Tabora [2011] KIHC 11; Civil Case 01 of 2011 (12 April 2011)

IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction

Held at Betio
Republic of Kiribati

High Court Civil Case 1 of 2011

Between:

Toaia Tenangibo & Others
Plaintiffs

And:

Matou Tabora mt mm & Others
Defendants

BEFORE: HON SIR JOHN MURIA CJ

For the Plaintiffs: Ms Batitea Tekanito
For the Defendants: Ms Elsie Karakaua

Date of Hearing: 11 April 2011

JUDGMENT

This application was heard in Chambers with only Counsel for applicants present. In view of the reasons I give in this ruling, I adjourned to open Court for judgment.

This matter had been before a Single Magistrate and in this Court (in its Land Jurisdiction) once. It is again before this Court.

In the Magistrate's Court, the Single Magistrate decided the matter should be put before the High Court by way of proceedings of certiorari. An appeal to the High Court in HCLA 25/09 was brought by the appellant. The High Court agreed with the decision (advice) of the Single Magistrate.

The applicants now seek leave to issue proceedings by way of certiorari against the decision of Lands Commissioner's Court made in
28 January 1948, Case No. 101/48.

Generally, I would have refused leave in this matter in the light of Order 61 r3 of the High Court (Civil Procedure) Rules 1964. That rule provides:

"3. Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any written law; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired".

The purpose of that rule is to provide a degree of certainty in Court proceedings so that parties may be able to regulate their affairs and businesses on the basis of that, if no challenge is made against the Court decision, no proceedings are likely to be allowed to be brought against that decision. Consequently, in my view, any application for Leave under Order 61, r2 on the grounds of error of law or procedural error is unlikely to succeed against a decision made more than six months, let alone, a decision made more than 60 years ago.

In the present case, the only ground that persuades the Court to decide otherwise is the third ground in support of the application, namely, fraud. The allegation is that the 1948 decision by the Lands Commissioner was tainted with fraud.

Fraud, if established, vitiates all that lie in its path. If a decision is obtained by fraud, it becomes a nullity and it must go. The Court of Appeal made it clear in Tato Kaburoro v Abamakoro Trading Ltd (20 August 2008) Court of Appeal, Civil Appeal 10/2008.

A party seeking to rely on fraud has a heavy task to do and would be well advised to take heed of the matters set out in Bukaineti and Anor v Tekimwa, (30 July 2008) Land Appeal No. 5 of 2007, by the Court of Appeal.

In the circumstances of this case, I feel I can exercise the Court's general power to enlarge time under Order 64 r5 of the High Court (Civil Procedure) Rules in favour of the applicants. That being the case, I further exercise the Court's discretion, and grant the applicants leave to apply for an order of certiorari as sought in the application.

Order accordingly.

Dated the 12th day of April 2011

SIR JOHN MURIA
Chief Justice