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Tekabwara v Tebuto [2019] KIHC 124; Miscellaneous Application 147 of 2019 (2 December 2019)

IN THE HIGH COURT OF KIRIBATI 2019

MISCELLANEOUS APPLICATION NO. 147 OF 2019
(ARISING FROM HIGH COURT CIVIL CASE NO. 25 OF 2019)

[BARANIKO TEKABWARA FOR HIMSELF
[AND FOR THE TOKATARAWA ASSOCIATION APPLICANT
[
BETWEEN [AND
[
[TIOTI TEBUTO AS CHAIRMAN OF
[TOKATARAWA ASSOCIATION RESPONDENT

Before: The Hon Chief Justice Sir John Muria

2 December 2019

Ms Batitea Tekanito for Applicant
Mr Banuera Berina for Respondent

JUDGMENT

Muria, CJ: This application seeks an order to revoke the interlocutory order made by the Commissioner of the High Court on 18 April 2018 which order was made with the consent of both parties. The original terms of the interlocutory order as made by the Magistrates’ Court are:

“Having considered the applicants’ application which is not opposed by the Defendants, the court hereby grant it and confirm that:

1. Every property of the Tokatarawa Unimwane Association such as a truck TC 1921 and TC 1920 will remain as they are, not to be used by anyone.
2. Tokatarawa maneaba. It will remain as it is without anyone using it for any purpose whether to host a meeting, party bingo or for service.
   
3. The Court consider it proper that the office bearers namely
   Tioti Tebuto Kaiuea Tataua Tabuke and Bantarawa Ietimeta and her family and Tebaiuea Biribo Baraniko Kabaki and Mataneai from the other side are the only authorized persons to reside in the maneaba, no one is allowed to dwell in the maneaba apart from the above named individuals.
   
4. Any undertakings such as digging, planting or renovation to the toilet owned by Tokatarawa are forbidden.
   

The Court hereby orders you the OCS for Bairiki Police and your Police Officers to assist to see that the orders are complied and that only the above named individuals are authorized to reside in the maneaba.

Failure to comply is a contempt of Court order which warrant imprisonment of the perpetrators”.

2. The High Court amended the Magistrates’ Court order by adding in paragraph 3 the following names: Matang Kabwebwenibeia and spouse
Tairoro Ruteru and spouse, and
Borauea Tiareti and spouse
after the names of Tebaiuea Biribo, Baraniko, Kabaki and Mataneai.

3. The order also named those who are allowed to reside in the Tokatarawa Association Maneaba. There is to be restrictions on the use of the Maneaba namely, not to use it for any purpose whether hosting a meeting, party, bingo or for service, as stated in the order.

4. The complaint by the applicants in this case is that in October 2019 the respondents permitted the players in the North Tarawa Team for the Terunga Games to use the Maneaba, following a request from the Ministry of Women Youth and Sport. The applicants say that the action of the respondents was in breach of the order of the Magistrates’ Court as amended by the High Court on 18 April 2019. See paragraphs 5-9 of the affidavit of Baraniko Tekabwara.

5. The respondents did not deny that the fact that the Team members from North Tarawa used the Maneaba during the Terunga Games. The respondents said that the Members of the North Tarawa have already left at the end of the Games.

6. It is further submitted by Mr Berina on behalf of the respondents that the applicants consented to the young people from the North Tarawa Team to use the Maneaba during the Terunga Games. If the complainants were so desirous of preventing a breach of the Order, they could have taken steps to enforce the Order as permitted by the penalty clause in the Order. They did not do so. They knew the young people from the North Tarawa Team were using the Maneaba.

7. Having heard Counsel for both parties and having read the affidavit of Baraniko Tekabwara, I feel that there is force in the respondents’ argument. The respondents were aware of the North Tarawa Team using the Maneaba during the period of the Terunga Games. No steps have been taken to prevent the Team from occupying and using the Maneaba during the Terunga Games as provided for in the penalty clause in the Order. That clause states:

“That the Officer Commanding of Bairiki Police Station is hereby ordered to enforce the Order of the Single Magistrate dated
10^th April 2018 as amended herein forthwith”.

8. Clause 13 of the affidavit of Baraniko Tekabwara, plainly confirms the respondents’ argument that the applicants consented to the use of the Maneaba by the North Tarawa Team during the Terunga Games. Baraniko Tekabwara deposed to in paragraph 13 of his affidavit as follows:

“13. We did not intend to remove the occupants from the said maneaba as they are the occupants from North Tarawa and North Tarawa is one of the member constituents to the Association. That is why we sought for the release of the order”.

9. The applicants cannot have their cake and eat it. Either they stick to the terms of the Order and have it enforced by preventing its breach, but they cannot consent to its breach and then ask for indulgence by coming to this Court seeking assistance to revoke the very order that they consented to its breach. This is a clear abuse of the Court process. The applicants cannot benefit from its participation in non-compliance of the Order.

10. The principle that a person ought not to be allowed to benefit from his wrongdoing because the defence of ex turpi causa will prevent him from doing so. The principle is well settled as far back as 1700s when in Holman –v- Johnson [1775] EngR 58; (1775) 1 Cowp. 341, 343; [1775] EngR 58; 98 ER 1120, 1121, Lord Mansfield said:

“The principle of public policy is this; ex dolo malo non oritur action. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causâ, or the transgression of a positive law of this country, there the court says he has no right to be assisted”.

11. The applicant’s wrongdoing in this case that they consented to the breach of the Order of the Courts. They cannot come to this Court and ask for help so that they can have the benefit of their wrongdoing.

12. The Magistrates’ Court’s Order as amended by the High Court on
18 April 2018, must continue to remain in force until the substantive case between the parties is determined by the Court.

13. The application by the applicants is refused with costs to be taxed if not agreed.

ORDER: 1. Application refused.
2. Costs to the respondents to be taxed if not agreed.

Dated the 3^rd day of December 2019

SIR JOHN MURIA
Chief Justice