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Kautabea v Auea [2019] KIHC 68; Civil Case 76 of 2013 (16 August 2019)

IN THE HIGH COURT OF KIRIBATI 2019

HIGH COURT CIVIL CASE 76 OF 2013

[TEUEA KAUTABEA FOR HERSELF AND FOR
[BROTHERS AND SISTERS APPLICANTS
[
BETWEEN [AND
[
[MATAO AUEA
[ISSUES OF TEUTU & MATARENA MTMM
[SINGLE MAGISTRATE RESPONDENTS

Before: The Hon Chief Justice Sir John Muria

14 August 2019

Ms Batitea Tekanito for the Applicants
Mr Banuera Berina for the First Respondents

JUDGMENT

Muria, CJ: This is an application to restore the application for judicial review filed by the applicant on 22 October 2013 and which was struck out on
31 March 2017. The application for judicial review was to challenge the decision of the Magistrates’ Court given on 17 May 2011 in case BaiLan 491/11.

Brief background

2. The case in the Magistrates’ Court in BaiLan 491/11 was concerned with the registration of the respondents over the land Tannakonimatang 787a following the death of the deceased Tiataai. The applicant in this case was not a party to the case in BaiLan 491/11.

3. Having heard the respondents, and with the consent of others who were present, namely Maritina and Matarena, the Single Magistrate granted the application registering the present respondents as owners of the land Tannakonimatang 787a on 17 May 2011. As I mentioned earlier, the present applicant was not a party and was not served with any notice of the hearing of BaiLan 491/11.

Application for Judicial Review

4. The application for judicial review was filed on 22 October 2013 which was more than two (2) years later after the Magistrates’ Court’s decision was given. In the same application, the applicant also sought extension of time to bring the application for judicial review.

5. On 18 August 2014, the matter came before his Honour Justice Zehurikize. His Honour heard the matter and gave extension of time, as well as leave to issue certiorari proceedings to the applicant.

6. On 3 September 2014 the applicant filed a Notice of Motion, seeking an order of certiorari to quash the decision of the Magistrates’ Court given on
17 May 2011. No action had been taken to progress the case since
September 2014.

7. About 2½ years later on 31 March 2017 the case file in the matter was brought before His Honour Justice Zehurikize, as an inactive matter, for striking out. The case was struck out for two reasons.

8. First, the application for certiorari was filed but its supporting affidavit was not sworn. As such it was not supported by evidence. As His Honour noted “the application which is supposed to be founded on evidence is just naked. It is not clothed with any evidence”.

9. Secondly, having filed the application, the applicant had not served the respondents, even after more than 2½ years. There was no evidence of any attempt to serve the respondents at all. His Honour noted: “Having filed the application, the applicant simply abandoned it”.

10. Ms Tekanito submitted that the case should be restored to the list because the merits of the case has not yet been decided by the Court. That argument
pre-supposes that the application for certiorari filed on 3 September 2014 merited to be considered by the Court.

11. Unfortunately, in the first place, the application had no merit that the Court could consider. No basis could be shown upon which the Court could consider it. The basis of the application was supposed to be found in the supporting affidavit which was unsworn. So there was no evidence to ground the application and the Court could not proceed to consider any merit in the application.

12. Mr Berina submitted that the application lack evidence to support it and as such it was non-starter right from the beginning. I agree.

13. I need also to mention that having been granted extension of time and leave, the proper procedure to follow should be to file an Originating Summons or Originating process as required by Order 61 r4 of the High Court (Civil Procedure) Rules, supported by a sworn affidavit. That was not what the applicant did in this case.

14. For the above reasons, the application was properly struck out by this Court on 31 March 2017. I see no reason at all to allow it to be restored to the list.

15. The application by the applicant is dismissed with costs to be taxed, if not agreed.

Dated the 16^th day of August 2019

SIR JOHN MURIA
Chief Justice