Reiati v Reiati [1997] KIHC 15; HCLA 015.97 (22 May 1997)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCLA 15/97

BETWEEN:

TEINA REIATI
Appellant

AND:

TABERAUA REIATI
Respondent

Appellant in person
Mr D Lambourne for the Respondent

Date of Hearing: 22 May 1997

JUDGMENT

This is an appeal against the decision of Single Magistrate K. Tebweao in case no. BD 127/96. That case was heard in the appellant's absence even though she was named as defendant. The application before the Single Magistrate was for a distribution of land known as Atanga 700a in which the appellant has an interest.

The Single Magistrate heard evidence from one of the applicants that he had personally served the appellant with a summons but she refused to sign an acknowledgment of service. The Single Magistrate was satisfied on this evidence that the appellant had been served with a summons and then proceeded to hear the case in her absence.

The appellant's ground of appeal is that she was not aware of the hearing.

The procedure where a party fails to appear is not the same as for civil causes. In land causes the procedure is governed by rule 28 of the Magistrates' Courts Rules. Rule 28 provides as follows:

"28. If an applicant fails to appear at the time and place at which he has been required to attend the court and does not excuse his failure to the satisfaction of the court, the court may strike out his application, and if any party does not obey a summons issued under paragraph 1 and does not excuse his failure to the satisfaction of the court, then, after proof of service, the court may appoint a relative of such party to the proceedings as may reasonably be expected to have good knowledge of the history of the title to the land under dispute, or other matter in issue, to represent each party and may thereupon proceed to hear and determine the matter in issue".

It can be seen that Rule 28 does not give the court an option to proceed in the absence of a party who does not obey a summons. Certainly if the applicant does not appear the application can be struck out. However, in the case of any other party, if the court wishes to proceed in that party's absence then, after proof of service, the court should appoint a relative with the qualifications mentioned in Rule 28 to represent that party. Another obvious alternative, of course, is that the court can adjourn the proceedings to ensure that the party either comes to court or nominates a representative to do so.

We think that rule 29 was intended to ensure that cases would not be heard in the absence of the parties or their representatives, but unfortunately the last 3 words of that rule cast some doubt on its meaning. Rule 29 reads:

"29. In all matters before the court the parties or their representatives, or, in the case of a party who has failed to appear, his representative as appointed under rule 28 shall be present throughout the parties being present".

We are not sure whether the last 3 words are a typing error which has been passed down over the years or whether there has been a mistake in the drafting.

We also think that the Single Magistrate should not have been satisfied with the proof of service of the summons. The person who allegedly served the summons on the appellant had an interest in the proceedings as one of the applicants. There was no independent evidence of service even though, according to the applicant, there were 8 to 10 other persons present in the house with the respondent. The applicant was unable to produce any acknowledgment of service from the appellant, or, apparently, anyone else. We think in those circumstances the Single Magistrate should have been more cautious.

In all the circumstances, we are of the view that the Single Magistrate erred in allowing the case to be heard without the appellant being present.

It follows that the appeal will be allowed and the decision of the Single Magistrate set aside.

The case is remitted to the magistrates' court for retrial.

THE HON R B LUSSICK
Chief Justice
( /05/97)

TEKAIE TENANORA
Magistrate

BITIARE EKERA
Magistrate