Merang v Falaile [2012] KIHC 39; Civil Case 98 of 2007 (7 September 2012)

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

HIGH COURT CIVIL CASE 98 OF 2007

BETWEEN:

TABETULU MERANG
APPLICANT

AND:

MANTEA FALAILE
RESPONDENT

FOR APPLICANT: MANTAIA KAONGOTAO & IOTITA KUARAWETE
FOR Non Parties: BANUERA BERINA
Date of Hearing: 30 August 2012

JUDGMENT

By Notice of Motion dated 23rd August 2012, the applicant came to this Court to apply for the inclusion of one Falaile Toromon and Linda Uan as defendants to this case. This case is at its enforcement stage. Judgment was given in January 2008 against the respondent, Mantea Falaile, in the amount of $20,000 with interest. The purpose of this application is for the plaintiff to enforce this judgment against Falaile Toromon by attaching the money to be received by him from Ms Linda Uan. Originally, the application was for the inclusion of Falaile Toromon and Linda Uan as third parties. On the first day of the hearing, the 30th August 2012, Applicant's Counsel was given time to support his application.

On the following day, when the case was called again Counsel advised the Court that their application was filed pursuant to Order 17 r 4, r 7 and r 11 of the High Court Civil Procedure Rules. Rule 4 states that all persons may be joined as defendants against whom the right to any relief is alleged to exist. Rule 7 deals with the right of a plaintiff to join any person as defendant when in doubt as to the person from whom he is entitled to redress. Rule 11 deals with the misjoinder and non joinder and the power of the court to strike out or add parties.

The contention raised by Mr Berina, appearing for Falaile Toromon and Linda Uan, was that Order 17 r4, r7 and r11 are not applicable after judgment. As stated above judgment in this case has already being given in 2008 against the defendant only, Mantea Falaile. Counsel further submitted that if the applicant wishes to go after the money belonging to Falaile Toromon from Linda Uan he should take separate proceedings against Falaile as recommended by the High Court in its judgment dated 15 June 2010 as Falaile is not a party to this case.

I agree with Mr Berina's argument. Order 17 is applicable before or at the trial, not after the judgment. This is clearly stated in Order 17 r 12 which reads that 'Any application to add or to strike out or substitute a plaintiff or defendant may be made to the Court at any time before trial by motion or summons, or at the trial of the action in a summary manner.'

Application dismissed.

Dated 7th September 2012.

...........................................
TETIRO M SEMILOTA
COMMISSIONER OF THE HIGH COURT