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Kaotan v Kee [2011] KIHC 42; Civil Case 131 of 2011 (18 November 2011)

IN THE HIGH COURT OF KIRIBATI 2011

CIVIL CASE NO. 131 OF 2011

BETWEEN

BEIARITI KAOTAN
BOOATA KAOTAN
ERIM KAOTAN
APPLICANTS

AND

JUNIOR KUM KEE MT MM
1ST RESPONDENT

NEI TAABENE KAOTAN
2ND RESPONDENT

ATTORNEY GENERAL IRO MAGISTRATES' COURT OF SOUTH TARAWA
3RD RESPONDENT

Before: Hon Chief Justice Sir John Muria

18 November 2011

Mr Raweita Beniata for Applicants
Mr Mantaia Kaongotao for Respondent

JUDGMENT

Muria CJ: By their application filed on 25 August 2010, the applicants seek the following orders:

1. An order of certiorari removing the said decision of the 3rd respondent into this Court for the purpose of it being quashed;
   
2. An order quashing the said decision of the 3rd respondent;
   
3. An order quashing subsequent decisions of the Lands Court made in reliance on the decision in Case No. BA 73/91;
   
4. Such further order or orders which this Honourable Court may deem just;
   
5. Costs.
   

The applicants also sought leave to bring judicial review proceedings. However at the haring, Mr Beniata of Counsel for the applicants did not ask for leave, but instead proceeded straight into the substantive arguments for the abovementioned orders.

Mr Kaongotao of Counsel for the first respondent raised no objection to the manner in which the applicants have brought their case to the Court.

Requirement of Leave

The Rules – O.61 r.2 – is mandatory. It starts with the words "No application" shall be made for an order of mandamus, prohibition or certiorari unless the words of rule 2(1). It states:

"(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this Rule".

There is no ambiguity in the language of the above provision. The words used in that provision are clear and unequivocal. No application shall be made unless leave has been granted. The making of an application for certiorari is subject to leave being first granted to do so.

When the Court intimated to Counsel that leave was required, Mr Beniata stated that he assumed that when he was making the submission on the question of delay, it was for the purpose of seeking leave. The difficulty in accepting Counsel's suggestion lies in three main hurdles that the applicants face. First, Counsel has never indicated that he was seeking leave in the first place. From the start to finish, the submission by Counsel was all for the grant of the substantive order of certiorari.

Secondly, the manner in which the applicants bring their case to the Court is a clear flouting of the rules which mandatorily required leave being first granted before seeking the order they now seek. Without leave being first granted the applicants cannot stand before the Court and ask for an order of certiorari.

Thirdly, the grounds for seeking leave and the principles applicable for grant of leave are not the same as those to be advanced for seeking the substantive order of certiorari. They are two distinct proceedings and involved two different considerations altogether. The purposes of seeking leave are first, to ensure that frivolous, vexations or hopeless applications are eliminated and, secondly, the applicants will only be allowed to proceed with their substantive application for certiorari, if the Court is satisfied that they have a case merit further consideration.

The fourth hurdle which the present applicant faces is the fact that he was more than 20 years out of time allowed by the rules before bringing a complaint against the 1991 decision. Not only that the applicants needed leave as required by O.61 r.2, they also needed permission to bring their application for leave outside the six month time limit allowed in O.61 r.3. The Court's power to enlarge time is contained in O. 64 r.5: see Toaia Tenangibo & Others –v- Matou Tabora mt mm and Others (11 April 2011) High Court of Kiribati Civil Case No. 1/2011. The applicants never took any steps to comply with O.61 r.3.

The hurdles faced by the applicants in the present case are insurmountable. Not only that they demonstrate the clearest picture of parties coming before the Court in complete disregard for the rules of Court.

Mr Kaongotao of Counsel for the respondents n this case made no attempt to raise any objection at all. I find it startling also is the fact that Counsel for the opposing parties have never or rarely made or raised objection, in writing or in Court, for non-compliance with the rules of Court or for non-compliance with Court orders and directions. The sooner we remedy this situation the better.

The applicants should have never been allowed to procee4d further in this matter since they have failed to comply with the rules as mentioned above. However, the Court had indicated that since Counsel for the applicants had made his submissions without any objection by Counsel for respondents, it would consider the issues of leave and whether certiorari should be granted together.

Having considered the issue of leave and in the light of what I have stated above, clearly leave ought not to be granted, and it is hereby refused. Leave having been refused, I need not deal with the substantive issue of whether certiorari should be granted or not. The application for the order of certiorari is therefore refused.

However, even if leave were granted, I would have no hesitation in refusing the application for certiorari, not only for the reasons stated in this judgment, but also because it is inconceivable to wait 19 years before the applicants come to the Court to complain about "procedural fairness" in case BA 73/91. The applicants waited 19 years to complain about fairness in the procedure before the Court in BA 73/91. The first respondent's father to whom the land was sold by the second respondent, had since died. The second respondent is still alive and is the sister of the applicants. There is absolutely nothing to prevent the applicants from challenging the decision during the 19 years. The applicants would have linked the Court to believe that they did not know about the BA 73/91 case until the 2010 eviction case No. 33/2010. I do not accept such suggestion. It is implausible and it is inconceivable in the circumstances of this case for such a suggestion to have any merit.

As I have said, this application is refused.

On the question of costs, the circumstances and the manner in which it is brought before the Court do not justify any order for costs to be made. Each party should bear its own costs.

Dated the 13 day of November 2011

SIR JOHN MURIA
Chief Justice