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Robert Mark Ltd v William [2011] KIHC 41; Civil Case 203 of 2009 (31 October 2011)

IN THE HIGH COURT OF KIRIBATI 2011

CIVIL CASE NO. 203 OF 2009

BETWEEN

ROBERT MARK LIMITED
APPLICANT

AND

TEBWEA WILLIAM T/A MELESIA TRADING
RESPONDENT

Before: Hon Chief Justice Sir John Muria

9 September 2011

Ms Botika Maitinnara for Applicant
Ms Taoing Taoaba for Respondent

JUDGMENT

1. Muria CJ. By its application dated 24th January 2011 the applicant seeks basically two orders, namely, to have the second named respondent joined as a party and to enforce the judgment against the first respondent entered on 28th June 2010, against the second respondent by sale of two lands belonging to the second respondent.
   
2. Briefly, the background of this case is that the first defendant, now respondent, trading as Melesia Trading from premises in Eita, Tarawa, Kiribati, imported goods from the plaintiff, now applicant, company in New Zealand. The defendant defaulted in payment for the goods ordered and the plaintiff took out proceedings in the High Court Civil Case No. 203 of 2009 against the defendant claiming the sum of $95,024.85 together with 5% interest and costs.
   
3. Following a trial on 28th June 2010, this Court made an order on 30th June 2010 in favour of the plaintiff in the sum of $77,091.10 with costs. The plaintiff have been making attempts to get its money from the defendant but have not been successful. Enforcement proceedings were taken against the defendant. It appears that the judgment has not yet been satisfied and hence the present application.
   
4. Although Ms Maitinnara of Counsel for applicant did not refer to the rule applicable in such a case as this, rule 25 of O.45 of the High Court (Civil Procedure) Rules does allow enforcement of judgment or order against a non-party in a cause or matter. Rule 25 of O.45 provides as follows:
   

"25. Any person not being a party to a cause or matter, who obtains any order or in whose favour any order is made, shall be entitled to enforce obedience to such order by the same process as if he were a party to such cause or matter; and any person not being a party to a cause or matter, against whom obedience to any judgment or order may be enforced, shall be liable to the same process for enforcing obedience to such judgment or order as if he were a party to such cause or matter".

5. However the application of the rule is obviously very limited. This is because for a judgment to be enforced against a person who is not a party to the case, it has to be established that such a person is as liable as if he were made a party to the case. Put another way, the liability of the non-party is an essential element to be established before an order to enforce a judgment is made against him. The burden is always on the applicant who seeks to enforce the judgment against a non-party to establish, on the evidence before the Court, the liability of such a non-party. Where evidence demonstrates the liability of a non-party, r.25 of O.45 empowers the Court to permit enforcement of a judgment or order against such a non-party.
   
6. In the present case, the finding of facts by the Court at the trial clearly established that the defendant's brother, Mackenzie was not responsible for any part of the defendant's debt to the plaintiff. The Court found that the attempt by the defendant to bring her brother into the matter was simply "to obfuscate the issues". It was further found by the Court that all that he did was to lodge the orders for her in 2008 "but that is as far as he went".
   
7. The submission by Ms Maitinnara of Counsel for the plaintiff that Mr Mackenzie was the one responsible for the debt in this case is obviously not so. Again, Counsel further suggested that the defendant sent money to her brother, Mr Mackenzie is also not correct. I think it is worth reminding Counsel that both assertions now made were plainly contrary to the clear findings of facts by the Court at the trial on 28th June 2010, in particular, at page 2 of the judgment of the Court delivered on 30th June 2010. Both counsel now before the Court were also present and acting for their respective clients at the hearing in June 2010. It is therefore most improper for Counsel to now assert that the defendant's brother was responsible for the defendant's debt and that the defendant sent payments to her brother when the Court had already found that none of such things happened. The truth is as Ms Taoaba submitted that there was no connection between the defendant and her brother in her business.
   
8. The foregoing circumstances therefore make it inappropriate to order the enforcement of the judgment concern against the second respondent, Mackenzie Kaiaman in this case. For the same reasons, it would not be proper to join the second respondent as a party for the purpose of enforcement of the said judgment against him.
   
9. The application is dismissed with costs to be taxed, if not agreed.
   

Dated the 31st day of October 2011

SIR JOHN MURIA
Chief Justice