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Kiribati Provident Fund v Leadership Commission [2023] KIHC 49; Civil Appeal 4 of 2020 (22 December 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL APPEAL 4 OF 2020

BETWEEN:
KIRIBATI PROVIDENT FUND
Appellant

AND: LEADERSHIP COMMISSION
Respondent

Date of Hearing: 21 NOVEMBER 2023
Date of Judgment: 22 DECEMBER 2023

Appearances: Ms. Kiata Kabure for the Appellant
Ms. Pauline Beiatau for the Respondent

J U D G M E N T

Brief fact of the case;

1. This is an appeal against the decision of the Leadership Commission in case number 16/05DEC 18, delivered on 25 June 2019.
   
2. In 16/05DEC 18, the Commission considered the complaint of one Biribo Tongabiri against the Appellant (KPF) for a) the alleged false and incorrect withdrawal of KPF savings in 1986 and 2001 of $1328.76 b) KPF refusing complainant access to withdrawal documents; and c) alleged inaccurate and improper recording and maintenance of customers account and alleged manipulation of personal records on file by KPF. The Commission issued a decision in favour of the complainant. The KPF is unhappy with the decision, hence this appeal.
   

Grounds of Appeal;

3. Two grounds of appeal filed as listed below;
   
   1. The Commission erred in law in dealing with the case that took place before the Leaders Code of Conduct Act was enacted contrary to section 12 of the Leader Code of Conduct 2016.
      
   2. The Commission erred in law in overruling the decision of the Magistrate Court with this case and dismissed it due to the Limitation Act.
      

Analysis

4. The Appellant complained that the matters complained of existed before the birth of the Leadership Commission. The Leaders Code of Conduct Act was enacted in 2016, and section 12 provides that the Code applies to all actions and omissions that occurred after it took effect. The actions complained of happened in 1986 and 2001, way before the enactment of the Act; therefore, the Leadership Commission has no jurisdiction to consider these matters.
   
5. Submissions for the Respondent indicated that the action complained of was the refusal of the Appellant to disclose the relevant document to the complainant, and such action continued after the Leaders Code of Conduct Act came into force.
   
6. The Appellant also submitted that the Commission had acted as an appellate court when it considered the complaint of Biribo, which had been ruled out by the magistrate court in 2008 as being statute barred by the Limitation Act.
   
7. In reply, the Respondent stated that the issue before the Leadership Commission was about the action of the Appellant in refusing to disclose the documents to the complainant, it was not the same as the issue before the Magistrate Court, which was about the unauthorised withdrawals in 1986 and 2001.
   
8. Counsel for the Respondent also submitted an important point that this Court should not entertain this appeal as it was filed out of time pursuant to section 18(4) of the Leaders Code of Conduct Act 2016, which states the following;
   

Section 18(4)

1. A person named in a decision or order made under this Code may appeal to the High Court. The High Court may dismiss the appeal summarily without hearing it or, after hearing the appeal, make an order upholding, quashing, or varying the order or decision.
2. Appeals against a decision or order are deemed exhausted after two months from the date the decision or order was made.
   

9. The decision was issued on 25 June 2019 and the appeal was filed on 17 August 2020, a delay of almost one year. The letter of the Secretary to the Cabinet sent to the Appellant (KPF) that attached this decision of the Leadership Commission was received by the Appellant on 25 May 2020, which means that the appeal was still out of time by almost one month as the appeal was filed on 17 August 2020.
10. The Appellant, through Counsel, argued that the delay was only twenty-two days and the point to be determined is crucial. Counsel for the Respondent submitted, and I agree, that this Court has no jurisdiction to hear the appeal as the Act does not give the Court the power to extend this period. In the premises, the appeal should be dismissed without being heard.
    
11. On the other hand, even if the appeal had been filed within time, this Court would still have to dismiss it, only in relation to the second complaint that deals with the action of the KPF in refusing to provide the relevant documents to Biribo Tongabiri as this action continued until the Act came into force, therefore this could be regarded as within time. The first and third matters complained of would be treated as statute-barred as they concern actions that happened before the Act in 1986 and 2001.
    

Summary;

12. The appeal is out of time and therefore dismissed.
    
13. Cost to the Respondent to be agreed or taxed.
    

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice