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Ekeieta v Konoua [2013] KIHC 31; Civil Appeal 09.2012 (29 August 2013)

IN THE HIGH COURT OF KIRIBATI 2013

CIVIL APPEAL NO. 9 OF 2012

BETWEEN

TEBUAKA EKEIETA FOR VILLAGE BANK, ABAOKORO

APPELLANT

AND

TABOKAI KANOUA
RESPONDENT

Before: Hon Chief Justice Sir John Muria

29 August 2013

Ms Botika Maitinnara for Appellant
Mr Raweita Beniata for Respondent

JUDGMENT

Muria CJ: This is an appeal by the appellant against the decision of the Magistrates' Court in North Tarawa in CN 165/11 made on 24 November 2011. The grounds of appeal are:

1. The Magistrates' Court erred in law in over-ruling its own decision;
   
2. The Magistrates' Court erred in law and in fact in over-ruling its own decision based on a fraud Court Minutes.
   

The thrust of the appellant's complaint is that the Magistrates' Court was wrong to rehear the case having already decided the matter on 24 April 2008 in CN 20/08.

The brief background to the case is that on 24 April 2008, the case between the appellant and respondent, CN 20/08 came before the Magistrates' Court in North Tarawa. The case involved a claim by the appellant against the respondent for an outstanding loan of $338.96. When the case was called, the respondent failed to turn up. Only the appellant was present. The Magistrates' Court made an order that the respondent shall pay $50.00 each pay day until the full amount was paid together with service fee of $5.00, plus $12.85.

The respondent did not clear the outstanding amount as ordered by the Magistrates' Court. Three years later, the respondent still did not pay as ordered by the Court and so the appellant brought proceedings in CN 165/11 to enforce the order of the Court made in CN 20/08.

At the hearing of CN 165/11 on 24 November 2011, the respondent, although served with the enforcement summons, did not turn up. His Counsel however appeared for him. In the course of the hearing, Counsel for the respondent asked the Court to reopen CN 20/08 since the respondent was not present at the hearing in CN 20/08. The Magistrates' Court agreed to the request on behalf of the respondent to reopen CN 20/08 and the Court did not proceed with the enforcement proceedings.

Naturally, the appellant was not happy and hence, this appeal.

The first ground of appeal complains that the Magistrates' Court was wrong to reopen the CN 20/08. It is argued that the Magistrates' Court did not have the power to reopen CN 20/08. The only avenue available to the respondent was to appeal the decision.

On the other hand Counsel for the respondent submitted that the judgment made on CN 20/08 was a default judgment and as such the Magistrates' Court has power to reopen the case. Counsel for the respondent relied on O.13, r.8 and O.29, r.12 of the High Court (Civil Procedure) Rules 1964.

The first thing that needs to be said is that O.13 and O.29 of the High Court (Civil Procedure) Rules concern civil proceedings in the High Court. They do not apply to civil proceedings in the Magistrates' Court. The applicable legislative provisions for civil proceedings in the Magistrates' Court are the Magistrates' Court Ordinance and the Magistrates' Court Rules. The argument that O.13 r.8 and O.29 r.12 of the High Court (Civil Procedure) Rules can found jurisdiction for the Magistrates' Court to reopen a case is, with respect, fallacious. There is no provision in the Magistrates Court Ordinance or the Magistrates' Court Rules for a Magistrates' Court to adopt and apply High Court Rules where there are no provisions in the Magistrates' Court Ordinance or Magistrates' Court Rules on a particular matter.

The Magistrates' Court Ordinance and Magistrates' Court Rules do not provide specific provisions for reopening or setting aside a default judgment. However, section 43 of the Magistrates' Court Ordinance provides that the jurisdiction of the Magistrates' Courts can be exercised "in substantial conformity with the rules and practice for the time being observed in England in county courts and courts of summary jurisdiction" in the absence of any provisions in the Magistrates' Court Ordinance or any other law in Kiribati.

The English County Court Rules do provide the County Court with jurisdiction to set aside judgments obtained by default. See Part 13 of the English County Court Rules. Thus the Magistrates' Court has jurisdiction to set aside default judgments.

The judgment entered against the respondent in this case in CN 20/08 was a judgment made in default of his appearance at the hearing. The Magistrates' Court has power to set aside such judgment. The principle is that unless and until the merit of the case has been decided, the Court retains the power to set aside decisions made because of some technical or procedural failure on the part of the party against whom the default judgment was obtained. The power of the Court is, however, discretionary and must be exercised judiciously.

Having found that the Magistrates' Court has the power to set aside its judgment obtained by default in CN 20/08, the next issue to be determined is whether the Magistrates' Court properly exercised its discretion in CN 165/11 to set aside its decision in CN 20/08 and allowed it to be reopened. This entails the respondent to satisfy the Court with a good reason why he did not turn up at the hearing. In addition, the respondent must show that he acted promptly in applying to set aside the judgment. A reasonable time period in this regard is normally 14 days. Thirdly, the respondent would have to show that he had a reasonable prospect of success at the hearing.

In the present case, the record shows that when CN 165/11 (which was an enforcement hearing) was heard, Counsel for the respondent simply requested the Magistrates' Court to reopen CN 20/08 because the respondent was said not to have been aware of the case. The Magistrates' Court accepted the respondent's request and ordered CN 20/08 to be reopened.

Although the Magistrates' Court had the power to set aside the default judgment in CN 20/08, in my judgment, the Magistrates' Court properly exercising its discretion should not have allowed its judgment in CN 20/08 to be set aside and reopen the case. In the first place, the Court minutes showed that the writ of summons was served on the respondent in his office. He signed it. Writ of summons in the Magistrates' Court have the venue, the date and time of hearing inserted in them. There is sufficient evidence to show that the respondent was served with the Court papers in this case. The Magistrates' Court was wrong to accept the suggestion that the respondent was not served in this case to attend CN 20/08.

Secondly, the default judgment was made on 24 April 2008. The request to set aside that judgment and reopen the CN 20/08 was made to the Court on 24 November 2011, some three and a half years later. By any stretch of imagination, that can hardly be regarded as a prompt application by the respondent. There was no explanation for the delay. The Magistrates' Court failed to take that into consideration in exercising its power in this case.

Thirdly, no evidence to even suggest that the respondent would have had a reasonable prospect of success at the hearing if the matter were to be reopened.

COURT MINUTES

There were two versions of the Court Minutes of the hearing in CN 20/08 on 24 April 2008. One version shows that the appellant gave evidence as to service of the writ of summons on the respondent. The Court accepted that the summons was served. The second version was very brief and did not have as much details as the first version nor did it have the evidence of service recorded in it.

There was a claim that the second version (shorter version) was fraudulently made. There was no evidence of fraud to support that claim. However, whether the shorter version of the Court Minutes was fraudulently made or not, it is irrelevant to the issue as to whether or not the Magistrates' Court properly exercised its discretion in this case. In any case, this Court would prefer to accept the first version of the Magistrates' Court Minutes which show that the respondent gave evidence as to proof of service on the respondent.

This is a case which clearly shows that the Magistrates' Court had wrongly exercised its power when it set aside its decision in CN 20/08 and reopen it to be reheard. The decision of the Magistrates' Court of North Tarawa in CN 165/11 ordering CN 20/08 to be reopened is set aside.

ORDER: 1. Allowed;

2 Decision of the Magistrates' Court North Tarawa in CN 165/11 ordering the reopening of CN 20/08 is set aside;

3. Costs to the appellant to be taxed if not agreed.

Dated the 8th day of November 2013

SIR JOHN MURIA
Chief Justice