Terakubo v Naruai [2018] KIHC 29; Civil Appeal 21 of 2014 (27 July 2018)

IN THE HIGH COURT OF KIRIBATI 2018

CIVIL APPEAL NO. 21 OF 2014

[TAAU TERAKUBO APPELLANT
[
BETWEEN [AND
[
[REREI NARUAI RESPONDENT

Before: The Hon Chief Justice Sir John Muria

4 May 2018

Ms Kiata Kabure for Appellant
No Appearance for Defendant

JUDGMENT

Muria, CJ: This is an appeal against the decision of the Magistrates’ Court in CN 20/2014. The appeal is against the cost of the adjournment in the sum of $250.00 ordered by the Magistrates’ Court.

The case before the Magistrates’ Court in Abaiang was for a claim by the respondent that the appellant had breached the order of the Court which was for the appellant not to do any work on a land under dispute until the High Court dealt with the appeal in respect of the land. The respondent claimed that the appellant continued to work on the land.

The case was fixed for 4 February 2014 for hearing before the Abaiang Magistrates’ Court. The appellant was served with the notice of hearing on
30 January 2014, four (4) days before the hearing. On 4 February 2014 the case was called before the Abaiang Magistrates’ Court. The appellant was present, but not his lawyer. The respondent was present together with their lawyer. The appellant asked for adjournment because his lawyer from the Office of the People’s Lawyer was not able to represent him due to office commitment. After hearing arguments from both sides, the Magistrates’ Court granted the adjournment but ordered that the costs of the adjournment in the sum of $250.00 be paid by the appellant. It is against that order that the appellant now appeals to this Court.

The appellant raised two (2) grounds of appeal namely –

“1. The Magistrates erred in law and in fact in awarding the cost of $250.00 to be paid by the Appellant without taxing it;

2. The Magistrates erred in law and in fact for allowing this cost without considering the Appellant’s lawyer inconvenient to attend the hearing”.

In support of the first ground of appeal, Ms Kabure of Counsel for the appellant submitted that as the award of costs is always in the discretion of the Court, the circumstances of the case justified that costs should be taxed. The issue posed for the Court to determine is whether the Magistrates’ Court was wrong in law to award costs without taxing it.

As Counsel rightly stated, the award of costs is always in the discretion of the Court. That discretion is unfettered. The Court can order fixed costs to be paid or order costs to be taxed, if not agreed. In this case the Magistrates’ Court ordered costs fixed at $250.00 to be paid by the appellant, as costs for the adjournment.

At the hearing before the Magistrates’ Court, the Court Minutes show the following exchanges in Court:

“Taau: I request to have the matter adjourn according to the instruction of my lawyer since he is busy and he has contacted with this lawyer.

Maere: I did not contact with this people’s lawyer as I only contacted him but he said that he didn’t know about this one except the fraud case.

Taau: I have little time given by my lawyer however I contacted my lawyer this morning to have the case adjourn and he doesn’t have time. I am not ready to proceed on since I have lawyer to represent me against these people. (Underlining added).

Maere: We would not be happy to have the case adjourn and these people should have prepared their lawyer. Why would I be ready and their lawyer is not?

Taau: I request have it adjourn for now.

Maere: I am sad to learn from the defendant side, why wouldn’t their lawyer write to me that he is not ready? I have responsibilities on Tarawa and I leave them behind to attend this case and the defendant spoke without any letter to satisfy me.

Taau: Well that is it, but it is my request to have it adjourn for my lawyer since he is not ready now since he is attending a workshop and I have little time with my lawyer since they just served their summons. 30/01/12?

Maere: If you are going to press it to have it adjourn then we will request for cost since my client spent money. I request for $250.00 for cost.

Judgment: The adjournment of the case is adjourned and for cost of $250.00. You must pay the amount within 1 month which is the 4/03/14.”

From the exchanges recorded in the Court Minutes, it was clear that the reason for the adjournment was that the appellant’s lawyer was not able to attend the hearing because he was attending a Workshop in South Tarawa. It is not clear as to when the respondent’s lawyer was served with the notice of hearing but she was able to get to Abaiang for the hearing on 4 February 2014 and to represent the respondent.

As the respondent’s lawyer properly remarked that if the appellant’s lawyer had contacted her of his inability to attend the hearing at Abaiang, she would not have travelled to Abaiang. But she learned of the appellant’s lawyer’s inability to attend the case in Abaiang when she was already in Abaiang during the hearing before the Magistrates’ Court.

I think it is also worth noting that the appellant knew of the hearing fixed for
4 February 2014. However the appellant only contacted his lawyer the very morning of 4 February 2014, just before the hearing.

Naturally she asked for costs wasted by the adjournment. So unless the appellant can show that the costs awarded in the sum of $250.00 against him was unreasonable, it must be taken to be the costs incurred by the respondent of preparing for and attending the hearing, which costs the respondent was entitled to. The Magistrates’ Court was entitled to award the fixed costs of $250.00 as sought by the respondent. The Magistrates’ Court has the discretion to order costs fixed at $250.00 or costs to be taxed. The Court, in its discretion, ordered the appellant to pay the fixed costs of $250.00. No error can be gleaned from the Magistrates’ Court’s award of fixed costs in this case.

The second ground complains that the Magistrates’ Court was wrong to order costs against the appellant without considering the short notice of service upon the appellant. The record shows that the real reason for the inability of the appellant’s lawyer to attend hearing was not the short notice of service but rather it was due to the lawyer attending a Workshop.

We are not told when the respondent’s lawyer was served with the notice of hearing. It might well be on 30 January 2014, the same time that the appellant was served or might be earlier. But assuming for argument’s sake that both sides were served on 30 January 2014 with the notice of hearing, professional prudence would at least require the Counsel for the appellant to immediately communicate with Counsel for the respondent and to advise Counsel that he would not be able to attend the hearing at Abaiang because of short notice and that he was attending a Workshop. Had that been done, there would be room for the Magistrates’ Court to exercise its discretion not to award costs or reserve costs.

A point was raised by Counsel for the appellant as to the length of time of service required for places outside of South Tarawa. The Court requested Counsel for some evidence to show such practice on service. All that has been submitted is that it is “normal practice” to have one (1) month service of summons on parties outside one island. That is a submission, not evidence of such “normal practice”. Nothing was forthcoming by way of evidence and so nothing turns on this point.

The Court takes this opportunity to emphasise the need for proper communication between Counsel as well as between Counsel and the Court in matters where both parties are represented by lawyers. It is crucial to have and maintain proper communication between Counsel, as well as between Counsel and the Court, to avoid wasting of judicial resources and avoid needless costs.

In the absence of any cogent explanation offered by the appellant, this Court cannot find any error on the part of the Magistrates’ Court in ordering costs against the appellant in this case.

The appeal is dismissed with costs to be taxed, if not agreed.

Dated the 27^th day of July 2018

SIR JOHN MURIA
Chief Justice