Development Bank of Kiribati v Manapa [2013] KIHC 19; Civil Case 18-2011 (16 May 2013)

IN THE HIGH COURT OF KIRIBATI 2013

CIVIL CASE NO. 18 OF 2011

BETWEEN

DEVELOPMENT BANK OF KIRIBATI
APPLICANT

AND:

TALILA MANAPA
RESPONDENT

Before: Hon Chief Justice Sir John Muria

16 May 2013

Ms Nancy Walker for Applicant
Ms Batiwate Itibita for Respondent

JUDGMENT

Muria CJ: By his summons filed on 14 March 2013 the applicant/defendant has asked for the following order:

An order that the plaintiff's case be dismissed for non compliance with Order 31 Rule 1(a) being unreasonable delay to take out a summons for directions.

Counsel for the applicant/defendant filed and relied on her affidavit in support of the application. Apart from the relief sought in the application as stated above, the thrust of Counsel's arguments is for dismissing the plaintiff's case for want of prosecution. Ms Walker submitted that there has been delay upon delay in this case by the plaintiff despite steps taken by the defendant to have the matter dealt with.

First, I am unable to find O.31 r.1(a) of the High Court Rules that deals with Summons for directions, although there is an O.31 which deals with Admiralty Actions. I think Counsel meant to rely on O.32 r.1(a). Secondly, I feel that the order which is being sought in this application and the arguments put forward to support the grant of the order are quite at variance.

The rule, O.32 r.1(a) requires the plaintiff to take out Summons for Direction with 14 days of the Close of Pleadings. Rule 8 of O.32 then permits the defendant to apply to have the plaintiff's case dismissed for failing to take out summons for directions as required by rule 1. There is no room in O.32 r.8 to dismiss the plaintiff's case for want of prosecution. The Court has power to dismiss an action for failing to take out summons for directions and for want of prosecution of the claim. But the principles to be applied are different. If the defendant/applicant wishes to seek an order to dismiss the plaintiff's claim for want of prosecution, an application to amend the order sought in the Notice of Motion could have easily been made. No such application has been made.

In this case the Court is not satisfied, due to the manner in which the arguments are put to the Court, that the Court's power under Rule 8 of O.32 should be exercised as sought by the applicant. There is a further point to note also. The Court record shows that the plaintiff had actually taken out Summons for Directions on 24 February 2012 (Summons dated 23 February 2012). It was fixed for hearing on 14 March 2012. The Summons has not been dealt with because Counsel for the plaintiff went overseas. That summons has yet to be dealt with. This, in my view, has answered the Order sought by the defendant.

In any case the order sought cannot be granted because the plaintiff did in fact take out a Summons for Directions in this case.

The defendant's application is therefore refused.

In the exercise of the Court's power under O.32 r.8, the Court makes the following directions:

1. Parties to make discovery within 21 days;
2. Evidence at trial by affidavit;
3. Trial date fixed for 12 August 2013;
4. Leave to amend defence granted.
   

Dated the 17th day of May 2013

SIR JOHN MURIA
Chief Justice