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High Court of Kiribati |
IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction
(South Tarawa)
MISCELLANEOUS APPLICATION 2025-02851
&
MISCELLANEOUS APPLICATION 2024-04595
(Arising out of HIGH COURT CIVIL NO: 20 of 2021)
BETWEEN
ATTORNEY GENERAL (iro MARAKEI ISLAND COUNCIL & KIRIBATI POLICE SERVICE) ___________________ Applicants
AND
MOTE RUI ITINNAIBO ________________________ Respondent
Date of Hearing: 24 March 2025
Appearances: Mr Nenebati Tawita Tainimaki for the Applicants
Mr Banuera Berina for the Respondent
RULING
AMTEN, J. – This is an application to amend the statement of defence. Counsel for the applicants, Mr Nenebati Tainimaki (“Nenebati”) applied for leave to amend his statement of defence. Counsel for the respondent, Mr Banuera Berina (“Mr Banuera) opposed the application.
Mr. Nenebati indicated that he is unfamiliar with the case, and upon reviewing it, he discovered significant issues that were omitted from their original statement of defence. These critical matters stem from the respondent’s (plaintiff in the main suit) claim and the affidavit provided by Tioti Tebwebwe. He contended that failing to include these issues would result in prejudice against them. He referenced Order 30 rule 6 in support of his argument.
Mr. Banuera contended that the application is futile. He asserted that the amendment being sought is already included in their original statement of defence. Since the trial has not commenced, he argued that Rule 1 is applicable rather than Rule 6, which the applicants are invoking. Additionally, he stated that an amendment can only be granted if it serves to clarify the actual issue in dispute between the parties. He maintained that the proposed defense mirrors the original defense, indicating that there is no new information that would justify a ruling.
For ease of reference, I set out the said rules in their entirely. Order 30 r.1 provides:
“The Court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings, in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.”
Order 30 r.6 provides:
“In all cases not provided for by the preceding Rules of this Order, application for leave to amend may be made by either party to the Court at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise as may be just.”
The application of these two Rules varies significantly. Rule 1 can be implemented at any point in the proceedings without the need for permission. It involves two criteria: 1) the court may permit an amendment, but only under conditions deemed fair, and 2) the proposed amendment is essential for resolving the actual issues in dispute between the parties. Conversely, Rule 6 necessitates obtaining permission and is applicable during the trial phase. Once permission is granted, the focus shifts to considerations of cost or the fairness of the situation.
In my opinion, the aforementioned Rules seek to establish that the court ought to evaluate the substantive aspects of a case presented to it and should permit any amendments deemed necessary to address the genuine issues in dispute between the parties, as long as no irreparable injustice arises.
I have difficulties in trying to find the relevant authorities on this matter in Kiribati, so I have to look elsewhere. The authorities that would be mentioned later including that which Mr Berina submitted are persuasive, and shall form the basis of this ruling.
The Supreme Court of India in the case of South Konkan Distilleries v. Prabhakar Gajanan Naik[1], held that the court should adopt a very permissive approach when considering requests for amendments to pleadings if the court believes that the applicant may experience irreparable harm and damage. The court retains the discretion to permit an amendment if it determines that doing so will genuinely serve the interests of justice and help prevent additional litigation.
In a leading case of Cooper v. Smith[2], the object underlying the amendment of pleadings has been laid down by Bowen, L.J. in the following words:
“It is well-established principle that the object of courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights.....I know of no kind of error or mistake which is fraudulent or intended to overreach, the court ought not to correct it if it can be done without injustice to the other party, courts don't exist for the sake of discipline but for the purpose of deciding matters in controversy and I don't regard such amendment as a matter of favour or grace.....it seems to me that as soon as it appeals that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it correct if it can be done without injustice as anything else in case is a matter of right.”
In granting the amendments in pleadings, the Bombay High Court in the case of Kisandas v. Vithoba[3], made this observation:
"All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to another side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties."
In Nigeria, the significance of the amendment of pleadings was explained in Okoli v. Ajose[4], in the following words:
“The object of the amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis of the true state of the facts or the true relief or remedy which the parties really and finally intend to rely on or to claim .... Sometimes the litigant may find it necessary to revise his own pleading to re-state or re-frame his case, before the action proceeds to trial, in order to bring out the real question in controversy between the parties.”
In order to permit amendments in accordance with the Rules, the court must carefully consider the facts and circumstances of each individual case, following a hearing with both parties regarding the application. This indicates that the power to grant an amendment is entirely at the court's discretion to ensure the fair administration of justice.
Lord Keith of Kinkel discussed the principles of amendment of pleading in Ketteman and others v Hansel Properties Ltd[5] in this manner:
"whether or not a proposed amendment should be allowed is a matter within the discretion of the judge dealing with the application, but the discretion is one that falls to be exercised in accordance with well-settled principles. In his interlocutory judgment of 10 December 1982, allowing the proposed amendment, Judge Hayman set out and quoted at some length from the classical authorities on this topic. The rule is that amendment should be allowed if necessary to enable the true issues in controversy between the parties to be resolved, and if allowance would not result in injustice to the other party not capable of being compensated by an award of costs. In Clarapade & Co v Commercial Union (1883) 32 WR 262 a 263 Brett MR said;
The rule of conduct of the court in such a case is that, however negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by cost; but if the amendment will put them into such a position that they must be injured it ought not to be made".
In Ganesh Trading Co. v. Moji Ram[6], the Supreme Court of India observed that:
"(p)rocedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give each side intimation of the case of the other so that it may be met to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation or particular must take."
The principle of amending pleadings, as established by the aforementioned authorities, aims to ensure that the core issues of a case are properly addressed and that justice is achieved. However, such amendments must not disadvantage the opposing party and should be permitted at any stage of the proceedings, as long as they are essential for resolving the actual dispute. Courts are encouraged to adopt a flexible stance when evaluating requests for amendments, emphasizing the importance of addressing substantive issues rather than getting bogged down by technicalities. The primary goal should be to ensure that the court considers the true facts and the genuine relief or remedy sought by the parties. At any point during the proceedings, the Court may allow either party to alter or amend their pleadings in a manner deemed fair and appropriate. All modifications should focus on the authentic issues in dispute between the parties.
Returning to the matter at hand, the amendment requested by Mr. Nenebati is made after the closure of pleadings. The Order on Directions has been adhered to, with the exception of the request for a hearing date. The only remaining task is to schedule this hearing date. In light of these circumstances, I am of the opinion that the applicable rule is Rule 1. While obtaining leave is not a requirement for this Rule, the court must still assess whether the amendment should be permitted. The fundamental criterion for allowing the amendment is that it must be necessary to resolve the fundamental issues in dispute, as long as the respondent do not face irreparable harm. If they do face such harm and if the respondent can be adequately compensated through costs, then the amendment should be permitted.
On November 4, 2021, Mr. Monoo Mweretaka, who was the defendants' counsel at the time, submitted a statement of defence, which constituted the original defence. Subsequently, on June 6, 2024, the current counsel filed an amended defence. This was followed by another amended defence submitted by the same counsel on September 12, 2024.
When comparing the initial and proposed defence (dated 12 September 2024), the sole distinction lies in the origin of the curfew order. The initial defence indicated in paragraph 7 that the order was issued by the Government, whereas the proposed defence claims it was issued by the Marakei Island Council. In evaluating the first test, I must consider whether this amendment is crucial for resolving the genuine disputes between the parties. Mr. Banuera highlighted that a key issue is the validity of the curfew order, asserting that the source or origin of the said order is not a critical factor. I paused at this point as my viewpoint appears to diverge from that of counsel; however, I observed that the respondent has not requested any details regarding the source or origin of the aforementioned order. In essence, they do not seem to be interested in who issued the order. Mr. Berina is correct. Nevertheless, the applicants are insistent that identifying the source of the order is crucial. Given that this forms part of their defence, and they have provided an affidavit in support, I shall grant them the opportunity, not as a matter of law but out of sheer grace. Understandably, it is their case, and they are entitled to manage it as they see fit, provided they remain within the confines of the law.
Having fulfilled the first requirement of the test, the applicants are now tasked with demonstrating that no irreparable harm would befall the respondent. Furthermore, if such harm does exist, they must prove that it can be adequately addressed through financial compensation. I must confess that I find no evidence in Mr. Nenebati's submission to support this assertion, nor is there any indication that costs would sufficiently mitigate such harm. His argument merely states that the respondent would not suffer any prejudice. I could conclude here and reject the application, as it is his responsibility to convince this court of the contrary; however, I cannot overlook the remarks made by Bowen, L.J. in Cooper v. Smith (supra) when he stated:
“It is well-established principle that the object of courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights..... courts don't exist for the sake of discipline but for the purpose of deciding matters in controversy and I don't regard such amendment as a matter of favour or grace.....”
Costs may be awarded to reimburse the respondent for his inconveniences. Mr. Banuera acknowledged that he would accept costs if the amendment application is approved, and he provided a detailed breakdown of his expenses amounting to $1,020.00. Mr. Nenebati consented to the costs but proposed a standard fee of $150.00, stating he would provide the relevant authority to support his standard cost claim; however, he did not follow through. In the case of Attorney General v Waymars Trading Company Ltd[7], the Commissioner permitted an amendment to the statement of claim on the condition that the applicant pays costs of $150, which is a typical rate in similar cases. I hope this is the authority Mr. Nenebati was referring to. Considering the arguments presented by counsel, I believe that this standard rate, if indeed it is the prevailing rate, is insufficient given the specifics of this case. It appears too low to me. Any party requesting the court's indulgence must cover costs that are commensurate with the particulars of their situation.
In the pursuit of justice, I grant the application for amendment and also award costs to Mr. Banuera, albeit reduced to $890.00. It is unnecessary for the respondent to travel to Tarawa on two occasions; consequently, I subtracted $130.00 from the original cost.
Order and Direction:
Dated this 3rd day of April 2025.
.............................................
HON JUSTICE A. T. AMTEN
PUISNE JUDGE
[1] AIR 2009 SC 1177
[2] (1884) 29 Ch D 700
[3] ILR (1909) 33 Bom 644
[4] [1994] 8 N.W.L.R. 300 at page 312
[5] (1988) 1 All ER 38
[6] AIR 1978 SC 484
[7] [2013] KIHC 10; High Court Civil Case 170 of 2011 (16 April 2013)
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