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Tangko v Temmae [2023] KIHC 3; Miscellaneous Application 62 of 2022 (21 February 2023)

IN THE HIGH COURT OF KIRIBATI

MISCELLANEOUS APPLICATION 62 OF 2022 arising out of
HIGH COURT CIVIL CASE 44 OF 2013

BETWEEN:
KARUAKI TANGKO
Applicant

AND:
ARAWAIA TEMMAE
Respondent

Date of Hearing: 7 FEBRUARY 2023
Date of Judgment: 21 FEBRUARY 2023

Appearances: Ms Botika Maitinnara for the Applicant
Ms Kiata Kabure for the Respondent

JUDGMENT

A brief fact of the case;

This is an application to set aside the judgment entered against the applicant on the 30^th May 2022 and the subsequent Writ of Fieri Facias dated the 9^th September 2022.

The hearing was conducted on the 19^th of May 2022 and the Notice of Hearing was served to Ms Kirata, the former lawyer of the applicant. Ms Kirata was replaced by Ms Maitinnara in July 2019. In the absence of Ms Kirata and after proving service of the Notice of Hearing, the Court went ahead to hear the case.

On 30^th May 2022, the Court issued its judgment against the applicant. Ms Kirata was named as counsel for Karuaki Tangko, the applicant in this present miscellaneous application. Mr Tangko was not aware of this judgment. On the 9^th of September that same year, the Writ of Fieri Facias was signed and served to the applicant (Mr Tangko) on the 24^th of September 2022. That was when he became aware of the judgment against him. On 13^th October 2022, Mr Tangko filed his application to set aside the judgment and writ of fifae.

On 23^rd November 2022, I granted an interim order to stay the execution of the judgment and the Writ of Fifae pending the hearing of the substantive application. Further, on the 1^st December 2022, I issued another interim Order to release the minibus that was seized from the Writ of Fifae which I had previously stayed its execution.

The Law;

Order 13 rule 8 of the High Court Civil Procedure Rules 1964 states as follows;

“Where judgment is entered pursuant to any of the proceeding rules of this Order, it shall be lawful for the court to set aside or vary such judgment upon such terms as may be just”

Supporting case authorities cited are listed here;
Waysang Kum Kee v Abamakoro Trading Co Ltd [2001] KICA 9
Obetaia v Kirata [2002] KIHC; MIscellanous Application 19 of 2022
Moel Trading Co Ltd v King Holdings Ltd [2019] KIHC 60; Miscellaneous Application 51 of 2019

Analysis;

The crux of the applicant’s case is that neither he nor his lawyer, Ms Maitinnara, was informed of the hearing date. As stated above, on the 1^st of July 2019 Ms Maitinnara appeared for Mr Tangko and she informed the Court that she took over the case from Ms Kirata. She was asked to file the Notice of Change of Advocate but she never did. When the case was called again on 25 March 2022, the Court noted that Ms Kirata had notice of the hearing but she did not turn up and the Court set down a trial date for the 21^st April 2022. Ms Kirata and Maitinnara were served with the Notice of Hearing for the 21^st of April 2022. I was told that nothing happened on that date as the presiding judge was sick. Both Ms Kirata nor Ms Maitinnara did not turn up. The hearing date was again fixed for the second time which was the 19^th of May 2022, only Ms Kirata was notified but she did not appear.

The respondent submitted that although Ms Maitinnara was not served with the Notice of Hearing, she must have spotted the case in the list sent by email to all lawyers. There was no evidence to show that this email was sent therefore I must disregard this argument.

The fact that Ms Maitinnara did not file the Notice of Change of Advocate must have contributed to the misunderstanding by the court registry clerks when deciding whom to serve with the Notice of Hearing. However, Ms Maitinnara must not be fully blamed as she did inform the Court at the hearing on the 1^st of July 2019 that she had taken over the case from Ms Kirata and she was served with the notice of hearing for the 21^st of April 2022 after that verbal confirmation.

One of the conditions when deciding to set aside the judgment is to consider whether or not the defendant has a substantial defence. I have read the applicant’s defence and I believe that there is a substantial defence. Counsel for the respondent also submitted that they did not dispute that the applicant has a substantial defence but they argued that there was no affidavit to support their defence. Counsel for the applicant responded that they could have provided the evidence at the trial through examination had they been given the chance to do so. I agree.

However, I also wanted to express the importance of complying with the Court Directions, in this case, evidence by affidavit was ordered by the court. The first Order on Directions was issued on the 30^th of October 2013, Counsels involved were Ms Kabure and Ms Kirata. The second Order on Directions was issued on 25^th March 2022 and only Ms Kabure for the plaintiff or respondent in the present application appeared. The second Order was specifically made for the defendant or applicant in this present case to comply with. Counsel for the applicant did not know of the existence of this second Order hence their failure to comply. However, she must have been aware of the first Order when she came on board in 2019 but they also did not comply with these Directions.

Counsel for the Respondent referred this Court to the case of Aribeta Obetaia T/A KAS Wheels Agent Service v Rev Baranite Kirata, Trustee for Kiribati Protestant Church [2022] KIHC 27; Miscellaneous Application 19 of 2022, to support their argument that the mistake of the lawyer should not be taken as an excuse as it is a matter between the lawyer and the client. That judgment was mine therefore I am very familiar with that case. In that case, I found that there was no substantial defence which was why I refused the application to set aside the default judgment. The difference between that case and this case is that in this case there is a substantial defence. Also, the lawyer in this present case could not be fully blamed for not filing the Notice of Change of Advocate as she did verbally inform the court of her taking over the case and she was acknowledged when she was served with the Notice of Hearing for the 21^st April.

Counsel for the respondent also submitted that her client will be prejudiced if the application is allowed as he will not enjoy the fruit of his judgment. On the other hand, the applicant argued that the respondent did not explain the prejudice as he did not provide his affidavit in response.

As per the natural justice principle, I feel that the applicant should be given a chance to be heard in court especially when he has a substantial defence. He was not represented in court when the case was heard as neither he nor his lawyer, Ms Maitinnara, was served with the notice of hearing.

Following the caselaw of Moel Trading Co Ltd v King Holdings Ltd, the respondent asked that the applicant pays into the court the amount claimed as a condition when setting aside the judgment and writ of fifae. However, I agree with Counsel for the applicant that the circumstances of the parties in that case and this present case are very different. In that case, the parties are two big companies and as stated by Counsel for the applicant her client has no means to provide the full amount claimed, therefore I decide not to impose this condition. However, I will require that this case be listed for re-hearing as soon as possible.

Orders;

In light of the above, I make the following Orders;

- That the application to set aside the judgment dated the 30^th May 2022 is granted.
- That the application to set aside the Writ of Fieri Facias dated 9^th September 2022 is granted.
- There will be no order as to cost as the applicant partly contributed to the mistake when they failed to file the Notice of Change of Advocate.
- For the sake of simplicity during the hearing, the defendant or applicant in this present application must file and serve his evidence by affidavit before the closing of business on the 27^th of February, to disclose any discoveries and to file his issues before the end of business day of 6 March.
- Re-hearing is listed on Tuesday 14^th March at 2pm.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice