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Uriam v Uriam [2004] KICA 16; Land Appeal 02 of 2004 (23 August 2004)

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

Land Appeal No 2 of 2004

BETWEEN

TEBAU URIAM
KABUREREI URIAM
TABURONGO URIAM
APPELLANTS

AND

BOREREI URIAM
RESPONDENTS

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Taoing Taoaba for appellant
Banera Berina for respondent

Date of Hearing: 20 August 2004
Date of Judgment: 23 August 2004

JUDGMENT OF THE COURT

Introduction

[1] The appellant applied by notice of motion dated 23 September 2003 for an order that the decision of the Single Magistrate of 9 February 1999 in land case 126/99 be reviewed, that the decision be quashed and that the appellants be registered as owners of Nei 690a1/1 at Bangantebure (the land) as well as the respondent.

[2] By its ex tempore judgment delivered on 1 April 2004, the High Court sitting in its land jurisdiction refused the application for review. The appellants have appealed against that decision.

Background

[3] The appellants and the respondent are brothers. On 21 July 1976 their father was registered as the owner of the land, having purchased it from the previous landowner.

[4] The respondent claimed against his father in case no 834 that the land should be transferred to him as he claimed that it had been purchased with his money. That application was refused. There was no appeal from that decision.

[5] The father died in 1995. The respondent applied to the Court to have the land registered in his name. The application was brought ex parte, without the knowledge of the appellants. On 9 February 1999 in case no 126/99 the Single Magistrate granted that application.

[6] The appellants received from the respondent a letter dated 19 September 2000 which informed them that the respondent was now the owner of the land. On 5 February 2001, after receiving legal advice from the office of the People's Lawyer, the appellants filed an appeal against the decision in case no 126/99. That appeal came before the High Court on 5 May 2003. It was dismissed on the basis that, as the appellants were not parties to case no 126/99, they had no right to appeal that decision. The Court suggested to counsel for the appellants that she consider taking fresh proceedings for review

[7] By letter dated 7 September 2003 addressed to the High Court counsel for the appellants requested that the matter be referred to the High Court for review. This was followed by a formal notice of motion dated 23 September 2003 seeking orders that the decision in case no 126/99 be quashed and that the applicants be registered as owners of the land together with the respondent.

The judgment in the High Court

[8] The judgment in the High Court commenced by noting that it concerned an application for review. It referred to earlier decisions including that of the High Court of 5 May 2003. The Court concluded that its judgment must be the same as it was in that decision, namely to refuse the application. It repeated what it had said previously namely that the Maneaba ni Maungatabu may wish to consider whether there should be changes to the law to enable applications such as the present to be determined by the Court.

[9] Although the judgment referred to an application for review, it did not deal with the application on that basis. The Court appears to have considered that the matter before it was an attempt to appeal the decision in case no 126/99, which was what the Court determined in its decision of 5 May 2003. However, unlike an appeal, an application can be brought to the Court to review a decision to which the applicant was not a party. This aspect was not considered by the High Court.

Conclusion

[10] Counsel for the appellant accepted that the appellant's application to review was brought under s 81 of the Magistrates' Courts Ordinance. As such, it could not succeed because the Court could not exercise any of the powers conferred by that section after the expiration of twelve months from the judgment the subject of the application to review. There is no power to extend that time.

[11] 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 s 81 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.

[12] If the appellants were to apply for an order extending the time to apply for leave to issue writs 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.

Result

[13] For reasons that differ from those of the High Court, we conclude that the application for review before it was correctly dismissed. Accordingly, the appeal is dismissed. The respondent is entitled to costs to be taxed if not agreed.

Hardie Boys JA
Tompkins JA
Fisher JA