Nikunau CS Ltd v Rabaere [2002] KIHC 10; Civil Review 02 of 2002 (7 June 2002)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT NIKUNAU
REPUBLIC OF KIRIBATI

High Court Civil Review 2 of 2002

Between:

NIKUNAU CS LTD
(REP BY ERIUTA KAREBO)
Appellant

And:

TETONGNGA RABAERE
Respondent

For the Appellant: Mr Tion Nabau
For the Respondent: Ms Emma Hibling

Date of Hearing: 7 June 2002

JUDGMENT
(Ex Tempore)

The respondent sued the applicant in the Magistrates' Court for $600 compensation for damage to a car windscreen. The applicant did not contest the claim. On 15 June 2001 the court gave judgment for the respondent for $610.00 including costs. The judgment:

The sum of $610.00 is to be paid by every month by the defendant by the Nik. CS Ltd and the receipts are to be retained by the Court Clerk.

I take that to mean the amount of $610.00 was to be paid by instalments.

The applicant did not pay anything. On 30 October 2001 he was brought before the Court again. The Court concluded that the applicant did not want to pay and decided that he should "be sent to prison until the amount needed from him as his repayment has been cleared".

I presume the Magistrates believed they were acting pursuant to Regulation 25 of the Magistrates' Court Rules. The court did not have the power to send the applicant to gaol indefinitely and, because the scale in the Regulation is many years, decades, out of date, may not have had power to send him to gaol at all.

The applicant remained in gaol until about May of this year.

This should not have happened. The scale provides for imprisonment for debt only up to amounts of $200.00 and then for a maximum of 12 months. The Regulation needs urgent review and I strongly recommend that the review be undertaken: first to consider whether imprisonment for debt is still appropriate and, if it is, then to revise the scale to be more realistic.

Ms Hibling tells me that the applicant has no remedy for this unlawful imprisonment.

It is most unfortunate that the applicant did not have legal advice earlier. Immediately on his imprisonment an application could have been made for Habeas Corpus. This would have meant his being brought before the High Court and almost certainly would have led to his release. As it is the applicant spent four or five months in prison.

This was totally wrong: a serious miscarriage of justice. I hope such a situation will never happen again.

I notice that the Court Clerk said the record of the case had been sent to the Chief Registrar "sometime last year". I hope that in future the Chief Registrar will read such records and refer anything of which he is doubtful to me.

What I have written does not mean the applicant avoids his obligation to pay the debt. Regulation 25(a) makes that clear:

For the avoidance of any possible doubts, it is declared that the undergoing of any period of imprisonment ordered under this rule for the non-payment of any debt shall not extinguish that debt.

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE