Mekaio v Mekaio [1997] KICA 18; Civil Appeal 04 of 1996 (25 March 1997)

IN THE COURT OF APPEAL OF KIRIBATI
CIVIL JURISDICTION

CIVIL APPEAL NO. 4 OF 1996

BETWEEN

KAUABANGA MEKAIO
Appellant

AND

TIMEON MEKAIO
Respondent

Date of Hearing: 19 March 1997
Delivery of judgment: 25 March 1997

Mr B Berina for the Appellant
Respondent in person

JUDGMENT OF THE COURT
(Gibbs V.P, Connolly and Ryan JJ.A)

The appellant and the respondent are brothers. In 1991 the respondent obtained judgment against the appellant in the Betio Magistrates' Court for $900 plus costs of $80. The present proceedings were brought before another magistrate at Betio in 1996 to enforce compliance with the order. Similar proceedings had been brought against the apellant on previous occasions and the appellant had been imprisoned in default of payment. In the present proceedings the magistrate ordered that the appellant pay $50 each week until the amount owed (described as $900+ court fee) was cleared in default two weeks' imprisonment starting from August 1996.

From this order all was brought to the High Court. The learned Commissioner who heard the case found that the appellant did not have the liquid assets to enable him to comply with the Court Order. The evidence Supported this finding. it showed that the appellant was unemployed and had no money and was supported by a daughter. However, the Commissioner further found that the appellant had an interest in five lands which were jointly owned with the respondent and other brothers and sisters. The appellant said in evidence that lie agreed that the respondent could have his share in these lands to the extent of $900 if lie <got a distribution and the respondent said that lie was content with that arrangement The learned Commissioner noted this undertaking and allowed the appeal to the extent that the $50 per month ordered by the Court below was reduced to $5 per Month with liberty to the respondent to apply to the Magistrates' Court at any time to revise that figure. Payment was to begin on 1 October 1996, and the Commissioner ordered that the period of imprisonment in default of payment should be, seven days.

From this decision the present appeal is brought.

Power to order imprisonment in default of payment of a judgment debt created by a judgment of a Magistrates' Court is given by Rule 25 of the Magistrates' Court Rules which provides as follows:

"(1) 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 instalments and in default of the payment of any instalment order that the defendant be imprisoned,

Provided that any imprisonment ordered by this regulation shall riot 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.

(2) For the avoidance of any possible doubts, it is declared that the undergoing of any period of imprisonment ordered under this rule for the nonpayment of any debt shall riot extinguish that debt".

The appellant has already been imprisoned under the order rnade in these proceedings, but if the Commissioner's order remains in force the appellant may again be imprisoned for failure to pay further instalments. Paragraph (b) of subregulation (1) suggests that the order of imprisonment may relate to any future instalment, but the concluding proviso to that subsection makes it clear that no such order may be made unless it is proved that the debtor has, or has had since the date of the judgment, the means to pay the debt, that is, the means to pay the whole judgment debt, albeit by instalments.

In the present case it was not proved that the appellant had, or has had, the means to pay the debt but refused or neglected to do so. It would riot be sufficient to show that his children had the necessary means, even though children may customarily owe duties to their parents. The regulation is concerned with the means of the debtor, not those of his children. The fact that he is the co-owner of lands which cannot be distributed without the co-operation of others, including the respondent, does not establish that he had the means to pay and neglected or refused to do so.

The court understands the feelings of the respondent, who has made many efforts to secure, of his debt . the respondent's remedy is to try to about the distrib of the jointly owned lands, a distribution to which the appellant has consented Whether or not that remedy is likely to be effective the court cannot allow this order to stand, since the the condition for making it, which the regulations has not been fulfilled.

The order forof the instalments was made as ancillary to the order for imprisonment and it also must be set aside.

The appeal is allowed, and the order of the Commissioner is set aside. In lieu thereof it is ordered that the appeal from the magistrate be allowed and that the magistrate's decision be set aside.

SIGNED BY
Gibbs V.P, Connolly and Ryan JJ.A