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Tinganga v Baoro [2010] KIHC 13; Civil Case 101 of 2009 (3 February 2010)

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

High Court Civil Case 101 of 2009

BETWEEN:

TERORATI TINGANGA
Applicant

AND:

KAURE BAORO
NAMAKAINA RUAIA & FAMILY
TTORNEY GENERAL IRO
MAGISTRATES’ COURT
Respondents

For the Applicant: Mr Raweita Beniata
For the Respondents: Ms Maere Kirata
Attorney General to abide decision of the Court

Date of Hearing: 3 February 2010

JUDGMENT
(Ex Tempore)

In HCCC 101/09 I granted an application for review and quashed decisions made in the Magistrates’ Court in CN 621/08 and RE TM 44/06 but gave the respondents three months within which to apply. They applied after three months and two days. In the circumstances because the responsibility for lateness falls on the applicant’s lawyer I overlook the two days of lateness and allow the application.

The applicants are defending a decision of the Single Magistrate to find fraud proved in 1907. To prove fraud after more than 100 years is an almost impossible task. Ms Kirata says the present respondents, Mr Beniata’s clients came to Court and admitted their ancestor had committed fraud. Mr Beniata denies this. There is no Court minute to that effect. In any case I doubt whether such an acknowledgment would amount to strict proof even if the acknowledgment were made. The Single Magistrate’s decision cannot stand.

Apart from that the applicants have to contend with the principle of certainty of title. When rights have been established for 100 years and more the Court would be most unwilling to disturb them.

The applicants will be given another chance but only on condition that they pay into Court as security the sum of $500.00.

Upon payment into Court of $500 the case will be remitted for rehearing by another Single Magistrate. For the present applicants to suceed the Single Magistrate must find fraud in 1907 strictly proved after a hearing of which all parties have had notice and after hearing evidence from all parties. The Single Magistrate must also take into account the principle of certainty of title.

Five hundred dollars must be paid into Court within one month. Otherwise the application will be automatically refused.

The $250.00 already paid into Court by the applicants to abide any future decision but if the further $500 is not paid into Court within one month the present respondents to have the $250 as their costs.

THE HON ROBIN MILLHOUSE QC
Chief Justice