Home | Databases | WorldLII | Search | Feedback High Court of Kiribati

Bataua v Development Bank of Kiribati [2011] KIHC 69; Civil Appeal 43 of 2010 (25 November 2011)

IN THE HIGH COURT OF KIRIBATI
HELD AT BETIO
REPUBLIC OF KIRIBATI

CIVIL JURISDICTION

HIGH COURT CIVIL APPEAL 43 OF 2010

BETWEEN:

TEEWATA BATAUA
APPELLANT

AND:

DEVELOPMENT BANK OF KIRIBATI
RESPONDENT

FOR APPELLANT: ABUNABA TAKABWEBWE
FOR RESPONDENT: BOTIKA MAITINNARA
Date of Hearing: 25 November 2011

JUDGMENT

This is an appeal against the decision of the Magistrates' Court in Bairiki in Civil Case No 303/09. There are three grounds of appeal namely:

1. The Magistrate erred in law in ordering the amount that the appellant should pay per month for his outstanding loan with DBK without first assessing the means of the appellant to pay his debt, and
   
2. The Magistrate erred in law and in fact in failing to state the amount that should be paid by the appellant, and
   
3. The Magistrates erred in law by making a decision which is in violation of the principles of natural justice.
   

Out of time

Since the appeal was just filed on 14 December 2010, almost 13 months after the decision was delivered, the issue of out of time is to be considered first. As a rule, the appellant is given three months from the date of the judgment within which he/she is allowed to file his/her appeal.
Counsel for the appellant submitted two grounds to support their reason for the delay. First, that the appellant was not present at both the two proceedings on the 30 October 2009 when the matter was heard and later on 15 March 2010 when the enforcement of the judgment was heard. Second, that he did not know that there is a time limit to file an appeal.

Counsel for the respondent objected to these reasons. She argued that at both proceedings the Single Magistrate was satisfied that service on the appellant was done properly. She further argued that ignorance of the law is no excuse. The appellant knew about the Court's decision against him when he was served with the summons for enforcement in February 2010. However convincing this argument is I decided to hear the appellant's side for his appeal. I told both counsels that I will continue to hear the substantive arguments on the appeal and that I will reserve my judgment on the out of time issue.

Now after considering submissions from both sides on the out of time issue I decide to grant the extension of time for the appeal to be filed to the 14 December 2010.

The Appeal

Counsel for the appellant submitted that the Magistrate Court, before ruling that the appellant should pay $94 monthly as repayment of his debt, it should have examined first the appellant's means of payment, whether or not the appellant has the means to pay the judgment debt. This was not done therefore the Magistrate's decision should be set aside. Counsel referred this Court to Rule 25(1) of the Magistrates' Courts Rules as authority to this argument. Rule 25(1) reads as follows;

" Upon a judgment of a magistrates' court for any sum of money such court may-

(a) Order the sum to be paid forthwith, and in default of payment order that the defendant be imprisoned; or

(b) Order the sum to be paid by installments and in default of payment of any installment order that the defendant be imprisoned;

Provided that any imprisonment ordered under this regulation shall not exceed the following scale.........

Provided further that no order of imprisonment under this regulation shall be made unless it is proved to the satisfaction of the court that the person making default has, or has had since the date of the judgment, the means to pay the debt but refuses or neglects to do so."

Counsel for the respondent argued that there is nothing in the Magistrate Court Ordinance (MCO) that states the requirement that the magistrate court should assess the means of the judgment debtor first before giving its order on payment. In fact the magistrate court can make its order on payment immediately after the hearing. She referred this Court to Rule 21 and 23 of the MCO to support this argument.

Rule 21 reads as follows;

"On completion of the hearing by a magistrates' court it shall give judgment either immediately or after taking time for reflection by making such order in the matter as in the nature of the case seems just."

Looking at the wording of this rule, it does not properly support Counsel's argument. To my understanding this rule deals with the Court's timing in delivering its judgment, that is, judgment can be delivered immediately or reserved.

Rule 23 is more appropriate to this argument. It states as follows;

"If a defendant does not appear on the day named in the writ of summons for the hearing thereof, the court may, upon proof that the same has been served and the plaintiff proving to the satisfaction of such court the claim sought to be enforced, make an order upon such writ of summons as the nature of the case demands....."

The above rule gives the power to a Magistrate Court to make an order on payment, in the absence of the defendant upon proof that service of the summon on the defendant has been effected properly. This rule falls in line with Counsel's alternative argument that if there is a requirement for the assessment of the judgment debtor's means of payment, the appellant has lost this chance when he chose not to attend the Court hearings. He was properly served for the two proceedings but did not bother to turn up. He could not come back to the court now and claim this right.

I agree with this argument. The magistrate court was satisfied that the appellant was properly served for the two proceedings but failed to turn up. The Magistrate Court is entitled to make an order on payment without his presence.

For ground two, Counsel for the appellant submitted that the Magistrate Court failed to state the amount that should be paid by the appellant. Counsel for the respondent argued that this ground be dropped as there was an amount stated in the judgment, that is $94 per month. I agree with this argument. The amount was there.

Natural justice was also raised as a third ground of appeal. Counsel for the appellant submitted that the principles of natural justice were violated when the Magistrate Court failed to assess first the means of the appellant in paying this debt before making its order. I will also reject this argument for the same reasons that I have mentioned above. The appellant has chosen not to turn up to the magistrate court hearings therefore he cannot complain now that his means to pay should be assessed first.

The appeal, is therefore, dismissed.

Cost to the respondent to be agreed or taxed.

TETIRO M SEMILOTA
COMMISSIONER