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Maio v Attorney General iro Ministry of Labour and Human Resources Development [2013] KIHC 21; Civil Case 24-13 (20 May 2013)

IN THE HIGH COURT OF KIRIBATI 2013

CIVIL CASE NO. 24 OF 2013

BETWEEN

[WAUERI MAIO
APPLICANT

[AND

[ATTORNEY GENERAL IRO MINISTRYOF
[LABOUR & HUMAN RESOURCES
[DEVELOPMENT
RESPONDENT

Before: Hon Chief Justice Sir John Muria

20 May 2013

Mr Raweita Beniata for Applicant
Mr Moon Mweretaka for Respondent

JUDGMENT

Muria CJ: This is an application by the applicant for an order to hold the respondent in contempt of court for failing to comply with the decision of the Court of Appeal in this matter.

BACKGROUND

The applicant, Waueri Maio, was dismissed from the Fisheries Training Centre (FTC) by the FTC Management on 26 January 2010. He applied to the High Court to quash the FTC Management's decision on 7 June 2012. On 18 June 2012 the High Court refused to quash the decision of the FTC Management. On appeal to the Court of Appeal, the appeal was allowed. The decision of the FTC Management dismissing the applicant was quashed.

THE EVENTS AFTER THE COURT OF APPEAL DECISION

The decision of the Court of Appeal is in the following terms:

"The appeal is allowed. The decision of the FTC dismissing the appellant from hearing programme is quashed.

The appellant is entitled to cost in this Court and in the Court below together with disbursement. All are to be fixed by the Registrar".

Following the decision of the Court of Appeal, Mr Beniata of the People's Lawyers Office and the lawyer for the applicant, wrote to the respondent on 22 October 2012, referring to the decision of the Court of Appeal on the matter and asking the respondent to comply with the decision of the Court of Appeal. The letter also asked that the applicant "be allowed to start with the school as a member of the new intakes for the year 2013 without any obstruction".

Mr Mweretaka of the Office of the Attorney General and the lawyer for the respondent replied to the applicant's letter on 31 December 2012 accepting the decision of the Court of Appeal but rejecting the suggestion that the Court of Appeal decision required the respondent to reinstate the applicant to FTC. The body of the letter reads:

"We do respect the decision of the Court of Appeal and we accept that our decision to dismiss your client is now quashed. However the judgment is clear and straight forward, and there is nothing in particular to cause us to reinstate your client. In fact the judgment only specifically stated that our decision to dismiss our client from hearing programme is quashed and nothing else. In that respect we therefore unable to reinstate your client to the 2013 intake as you demand in your letter".

The applicant had not been reinstated since.

The application for an order of contempt of court against the respondent was filed in this Court on 31 December 2012. The ground relied upon is that:

"The Respondent failed to abide by the decision of the Court in Court of Appeal 8 of 2012 –

The applicant has not been accepted back to continue his studies at the Fisheries and Training Centre (FTC) despite the Court of Appeal quashing the decision to dismiss him from the FTC program".

The application is supported by the affidavit of Nancy Walker of the Office of the People's Lawyer and then Counsel for the applicant. The respondent did not file any affidavit in response and simply relied on their submission.

REQUIREMENTS OF THE RULES

At the commencement of the hearing, I asked Counsel for the applicant if the applicant needed to do something else before proceeding with the matter. Mr Beniata stated that there was nothing else required of the applicant to do and that he asked to proceed with the submission on behalf of the applicant. The Court asked Mr Mweretaka if the respondent has any application to make or needed to do anything before the matter is proceeded with further. Mr Mweretake of Counsel for the respondent likewise stated that there was nothing else that the respondent was required to do and that he also wished to proceed with the submission on behalf of the respondent.

I feel that this Court should refuse to proceed further with this matter. Both Counsel were unable to gauge the cue from the Court that something is clearly wrong with the application. There is the obvious lack of appreciation of the requirements of the Rules of Court with regard to bringing contempt of Court proceedings. The Court does not give advice to parties as to how they should conduct their cases. The parties are expected to follow Rules, especially where they are legally represented.

Contempt proceedings are governed by O.61 of the High Court (Civil Procedure) Rules. Rule 21 states:

(1) The procedure in applications for attachment for contempt of court in the cases to which this Rule applies shall be the same as in applications for an order of mandamus and Rules 2, 4, 5 and 6 of this Order shall apply accordingly to applications for attachment, so far as they are applicable:

Provided that the issue of the writ of attachment shall not be ordered by a Judge in Chambers, and the notice of motion shall be personally served unless the Court dispenses with such service.

(2) This Rule applies to cases where the contempt is committed –

• (a) in connection with proceedings to which this Order relates;
  
• (b) in connection with any proceedings in Court, except where the contempt is committed in facie curiae or consists of disobedience to an order of the Court;
  
• (c) in connection with proceedings in an inferior court".
  

First, a simple reading of the Rule shows that an order sought to be enforced in this Court by attachment for contempt of court must be the order of the High Court or an order of an inferior court. The Order which the applicant seeks to enforce by way of attachment for contempt in this case is the order of the Court of Appeal. The applicant has come to the wrong venue.

Secondly, Rule 6 of the Court of Appeal Rules provides that the High Court Rules apply to proceedings in the Court of Appeal in civil causes or matters. The Court of Appeal will apply O.61 r.21 when considering a contempt of court proceedings in respect of its orders, but leave will still have to be obtained first, except for contempt in facie curiae.

The applicant will have to bring his application before the Court of Appeal, seeking leave of that Court first, to issue contempt of court proceedings against its order.

In Court, Mr Mweretaka stated that the respondent is open to considering giving an opportunity to the applicant to have him attend FTC if he applies. Without prejudice to the applicant's right to pursue his claim of contempt of court, I would have thought that the end result and the purpose of his case could be achieved with the offer indicated by Counsel for the respondent. That of course is a matter for the applicant.

The application in this case must be struck out with costs.

Dated the 24th day of May 2013

SIR JOHN MURIA
Chief Justice