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Tinaua v Tourake [2013] KIHC 34; Civil Appeal 01.2011 (5 November 2013)

IN THE HIGH COURT OF KIRIBATI 2013

CIVIL APPEAL NO. 1 OF 2011

BETWEEN

KARUAUA TINAUA
APPELLANT

AND

BWEBWE TOURAKE
RESPONDENT

Before: Hon Chief Justice Sir John Muria

5 November 2013

Ms Arian Arintetaake for Appellant
Ms Maere Kirata for Respondent

JUDGMENT

Muria CJ: By her Amended Notice of Appeal the appellant raised two grounds namely:

1. The Magistrates' Court erred in law in proceeding with case CN 392/10 without the appellant and her counsel even when the appellant has informed the Court that her counsel was having an High Court case that same day;
   
2. The Magistrates' Court erred in law in purporting to give judgment without hearing the appellant's side.
   

The case arose out of remarks made by the appellant in public to the effect that the respondent had illicit sexual intercourse with one Nei Bangkengke. The remarks were made repeatedly on or about 17 September 2010.

The case came before the Court on 13 October 2010. The Court Minutes show that both respondent and appellant were present. The appellant requested a lawyer and the adjournment was granted to enable the appellant to find a lawyer. The Court then fixed the hearing date to 27 October 2010 at 2.00 pm.

On 27 October 2010 the case was called. The respondent was present. Neither the appellant nor her lawyer, if she has one, was present. The Court, after having been satisfied of proof of service on the appellant, proceeded with the hearing of the case.

There was no evidence before the Court that the appellant had a lawyer. There was no evidence that, if she had a lawyer, the lawyer was busy in the High Court. There was no evidence that the appellant told the Court Clerk that she had a lawyer and that the lawyer was busy in the High Court.

It is clear that what she stated in her affidavit in support of her appeal were not supported by the Court minutes. The fact of the matter is that the appellant knew of the hearing on 27 October 2010. She failed to turn up nor her lawyer, if she had one. There was no explanation for her absence or her lawyer's absence, if she had one.

The Magistrates' Court was correct to proceed with the case.

The Magistrates' Court decision is affirmed. The appeal is dismissed with costs to be taxed, if not agreed.

Dated the 5th day of November 2013

SIR JOHN MURIA
Chief Justice