Betio Town Council v Moutu [2017] KIHC 38; Civil Appeal 7 of 2016 (3 November 2017)

IN THE HIGH COURT OF KIRIBATI

CIVIL APPEAL NO. 7 OF 2016

[BETIO TOWN COUNCIL APPELLANT
[
BETWEEN [AND
[
[TEKEI MOUTU RESPONDENT

Before: The Hon Chief Justice Sir John Muria

31 October 2017

Ms Taoing Taoaba for Appellant
Mr Tabibiri Tentau for Respondent

JUDGMENT

Muria, CJ: This is an appeal by the appellant against the decision of the Magistrates’ Court presided over by Single Magistrate Tabakitoa. There is only one ground of appeal namely:

“That the Court erred in law in hearing the case on a public holiday without the presence of the appellant (BTC) or its Counsel”.

An affidavit by one Tenea Atera was filed and relied upon in support of the appeal.

The respondent opposes the appeal and seeks to affirm the decision of the Single Magistrate.

Brief Background

The respondent was employed by the appellant as a driver. He was dismissed from his employment some time in September 2014, although he only received the letter on 22 December 2014. Following his dismissal, the respondent took the appellant to Court claiming his unpaid salary.

The case first came before the Magistrates’ Court on 6 June 2015. The case was adjourned to 26 June 2015 to enable the respondent to obtain legal representation.

On 26 June 2015 the case was called. Again it was adjourned for lack of proper service. The case was again adjourned to 10 July 2015.

The case was not called on 10 July 2015. It was instead called on 20 August 2015 at which time it was again adjourned due to non-appearance of the appellant. The matter was adjourned to 25 August 2015.

The record shows that the case was again adjourned on 25 August 2015 to
15 September 2015. No reason was recorded for that adjournment.

On 15 September 2015 the matter was again adjourned because the appellant’s witness was sick. No objection was taken by the respondent. The case was again adjourned to 27 October 2015.

The case unfortunately did not proceed on 27 October 2015. Counsel for the respondent was not available due to an appointment with the doctor. The Court adjourned the case to 10 November 2015 with costs to the respondent in the sum of $20.00.

The case was called on 10 November 2015, only to be further reluctantly adjourned by the Court to 7 December 2015. The adjournment was due to the respondent’s lawyer being sick. Unfortunately, the Court had a judicial workshop on 7 December 2015 and so the scheduled hearing of the case on that date clashed with the Workshop. The Court then adjourned the case to
28 December 2015.

On 28 December 2015, the case was called. The respondent was present in person. The summons for the hearing on 28 December 2015 was also served on the appellant. Proof of service on the appellant had been established and accepted by the Court. The Single Magistrate proceeded to hear the case in the absence of the appellant and gave judgment for the respondent.

With that background, I now deal with the ground of appeal raised by the appellant.

Consideration and Determination

The general principle is that the Magistrates’ Court can sit “at any time” of the year as the presiding magistrate thinks fit. This is clearly borne out by the proviso to section 44(3) of the Magistrates’ Court Ordinance which states:

“44(3) Each magistrate’s court shall be held at least once in every calendar month and shall continue sitting, with such adjournments as the courts shall deem necessary until all outstanding causes and matters have been dealt with fully:

Provided, however, that, subject to the provisions of this Ordinance, a sitting of a magistrates' court may be held at any time the presiding magistrate thinks fit.”

In practice, however, the Courts do not sit on Sundays or public holidays, although the Magistrates’ Court can sit “at any time” as the presiding magistrate thinks fit.

In Kiribati, however, the discretionary power of the presiding magistrate to decide on when to have the Court sitting held under section 44(3) is subject to other provisions of the Magistrates’ Court Ordinance. One of those provisions is section 45(3).

Since the hearing date under challenge in this case was an adjourned hearing date, the relevant provision is section 45(3) of the Magistrates’ Court Ordinance which states as follows:

(3) When any day appointed for the sitting of a magistrates' court falls on a Sunday or a public holiday, the sitting shall not take place on that day and the magistrates shall in such case, if practicable, attend and transact the business appointed to be heard at such sitting as aforesaid on the day (not being a Sunday or a public holiday) next after the day appointed for such sitting.

The language of that provision is couched in mandatory terms. When a day fixed for the sitting of a Magistrates’ Court falls on a Sunday or a public holiday, “the sitting shall not take place”. The Court shall sit on the day next after the day fixed for sitting, provided that is not a Sunday or public holiday.

The next question is whether 28 December 2015 was a public holiday or not. The affidavit of Tenea Atera in support of the appeal stated 28 December 2015 was a public holiday, being Boxing Day. On the other hand, the respondent’s affidavit stated that 28 December 2015 was not a public holiday. In this regard a copy of the Notice of Public Holidays for 2015 becomes crucial to answer the question posed.

After the hearing a copy of the Notice of Public Holidays for 2015 was filed in Court. That Notice is a public document issued by the Government showing the days observed as public holidays in Kiribati in 2015. The Court is bound to take judicial notice of that Notice.

The Notice shows that 28 December 2015 was a public holiday. It was declared a public holiday in honour of Boxing Day (26 December 2015) which fell on a Saturday. As such Monday 28 December 2015 was designated a public holiday in honour of Boxing Day.

I accept 28 December 2015 was a public holiday and in terms of section 45(3) of the Magistrates’ Court Ordinance, the Single Magistrate should not have sat on that day to hear the case between the respondent and appellant, even though service of notice of hearing was effected on the appellant. It is on this basis that the appeal should be allowed.

The other point, or breach of the rule on natural justice, relied upon by the appellant is unnecessary to deal with in this appeal, in view of the Court’s view that the sitting by the Magistrates’ Court on 28 December 2015 was contrary to section 45(3) of the Magistrates’ Court Ordinance.

The result is that the appeal is allowed. The case is remitted to the Single Magistrate to hear the case de novo. Costs to the appellant.

Dated the 3^rd day of November 2017

SIR JOHN MURIA
Chief Justice