Bwenna v Kaburoro [2011] KIHC 48; Civil Case 151 of 2010 (4 March 2011)

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

HIGH COURT CIVIL CASE 39 OF 2010

BETWEEN:

TEKONABA BWENNA
APPELLANT

AND:

BWAURINA KABURORO
RESPONDENT

FOR APPELLANT: MAERE KIRATA
FOR RESPONDENT: RAWEITA BENIATA
Date of Hearing: 4 March 2011

JUDGMENT

There are two applications dealt with together in this case that arise from the same matter. One is an appeal against Civil Case no 223/10 and the other is an application for review against Civil Case No 238/10. The Appeal came about when the Magistrate Court ruled that it has jurisdiction to hear and determine a claim for the distribution of the Appellant's benefit under his KPF account. On the other hand, the review came about when the Magistrate Court ordered the KPF to freeze the appellant's account pending the hearing of the claim for distribution.

The grounds of appeals are as follows:

- The Magistrate erred in law in assuming jurisdiction to hear a claim for the distribution of the Appellant's KPF account;

- The Magistrate erred in law in characterizing the respondent's claim as maintenance claim, contrary to the claim as it appears on the face of the Summons by which the proceedings were initiated; and

- The Magistrate erred in assuming jurisdiction to hear the claim for distribution of a sum worth more than $3,000, which exceeds the monetary limit of the jurisdiction vested in the Magistrates' Court.

For the first ground the appellant argued that the Magistrate has no jurisdiction to hear the matter. They argued that a benefit could only be withdrawn under certain circumstances laid down in the Act and none of these circumstances existed in this case. For the second ground, the appellant argued that the Court should not characterize the case as one of a maintenance case when in fact it was a direct claim for distribution, or if the claim is for maintenance there should be a maintenance Court Order first followed by a breach of that Order. The respondent, on the other hand, argued that the Magistrate has jurisdiction because the case was brought about because of the maintenance of the children. They further argued that the circumstances listed in the Act concern the withdrawal of the benefit only and not maintenance cases such as this.

Having heard arguments from both sides and having gone through the minutes and relevant laws, I found that the Magistrate has no jurisdiction to entertain the matter at this stage. First, because there was no existing maintenance declaration or order from the Magistrate Court before this case. This was the first time to claim maintenance. If the case is about maintenance it is premature at this stage to consider the distribution of the KPF. The respondent should first seek a maintenance declaration from the Magistrate Court and other Court Orders in accordance with the Maintenance Ordinance before touching the KPF. Secondly, and most importantly the Magistrate Court has to be satisfied first that the KPF benefits is the only financial means of the appellant to pay such sums of money or maintenance in this case.

The appeal is allowed. There is no need to discuss the rest of the grounds and the review. The Order freezing the appellant's KPF is hereby revoked.

Tetiro M Semilota
Commissioner