Fakaua v Kwong [1979] KIHC 19; 1979 KILR 63 (30 May 1979)

[1979] KIHC 19; [1979] KILR 63

HIGH COURT OF THE GILBERT ISLANDS

Civil Appeal No 34 of 1979

SULIA FAKAUA

v

OTEN KWONG

(O'BRIEN QUINN C.J.)

Betio: 30th May 1979

Civil appeal - defendant properly notified - defendant failed to attend Court or notify court - case heard in absence of defendant - appeal out of time - appeal dismissed.

The appellant had been served with a Writ of Summons to attend the Magistrates' Court, Betio, but failed to attend Court or to notify the Court that she could not attend, and the Magistrates' Court heard the case in her absence. She appealed on the ground that she had not given an opportunity of being heard. The case was heard on 23rd February 1979 and the appellant did not appeal until 7th May 1979.

HELD: (1) That as the appellant could easily have informed the Court that she could not attend and as she ignored the Court, She must suffer the consequences of her lack of action;

(2) That as the appeal was, in any event, two months out of time as well as not having any merit, it would be dismissed.

Authorities referred to:-

Beia Ruaia v Nataua Taniera, High Court Civil Appeal No 8 of 1979 (unreported).

O'BRIEN QUINN C.J.:-

This is an appeal against the decision of the Magistrates' Court for the Betio Magisterial District given on 23rd February 1979 in which, on the Defendant's (now the appellant) having failed to appear in Court, Judgment was given for the Plaintiff (now the Respondent) in the sum of $48.17.

(2) The Appellant appealed on 7th May 1979 on the grounds that the account was wrong and that she was not given an opportunity of being heard. She stated that she knew that the case was set down for hearing on 23rd February 1979 but that as the auditors were inspecting her cash on that day she stayed at work and did not go to Court. Neither did she notify the Court that she would not be attending, even though her office was very near the Court.

(3) I have dealt with a somewhat similar appeal in High Court Civil Appeal No 8 of 1979 on 30th April 1979 and I have had occasion to mention before that I would not be lenient in such matters in future. Court orders and writs of summons are there to be obeyed, not to be ignored. The Courts exists to do justice and if parties ignore the Courts and fail to appear without informing the Courts then the Courts will act as if those parties had no defence to put before the Courts.

(4) In this case the Appellant could easily have informed the Court that she could not attend but she chose to ignore the Court. She must, therefore, suffer the consequences of her lack of action.

(5) Further, the Appellant had 21 days in which to appeal but, even though her case was heard on 23rd February 1979 she did not bring her appeal until 7th May 1979; nearly two months out of time.

(6) In all the circumstances, I must dismiss this appeal as being out of time and as being without merit.

(7) I would point out, however, that there may be a mistake on the writ of Summons in that while the amount claimed was $37.75 and the fee paid was 42 cents the total figure came to $48.17 and not $38.17. Perhaps the Magistrates' Court will not look into the amendment of its Order of 23rd February 1979 and make necessary adjustments so that the Appellant may know the exact amount which she has to pay to the Respondent, which she should do without delay.