Hauma v Tekeeu [2019] KIHC 119; Civil Appeal Case 2 of 2018 (6 November 2019)

IN THE HIGH COURT OF KIRIBATI 2019

CIVIL APPEAL NO. 2 OF 2018

[MELEMELE HAUMA APPELLANT
[
BETWEEN [AND
[
[ANTONIO TEKEEU RESPONDENT

Before: The Hon Chief Justice Sir John Muria

5 November 2019

Mr Banuera Berina for Appellant
Ms Kiata Kabure for Respondent

JUDGMENT

Muria, CJ: This appeal raises an important point on the question of enforcement of a civil judgment of the Magistrates’ Court.

Brief background

2. The plaintiff now respondent, sued the defendant, now appellant, in the Magistrates’ Court claiming the sum of $6,008.00 for a vehicle which the plaintiff ordered through the defendant but had not arrived. The Magistrates’ Court heard the case and on 29 August 2017 gave its judgment in favour of the plaintiff. The Magistrates’ Court ordered the defendant to pay $6,008.00 to the plaintiff within three months.

3. The defendant failed to pay the judgment debt and on 27 December 2017, the plaintiff took out enforcement proceedings. The defendant was not present at the hearing on 27 December 2017. The Magistrates’ Court proceeded to hear the case and ordered that the defendant be imprisoned for three months and still be responsible for repayment of the sum of $6,008.00 to the plaintiff.

Appeal

4. The defendant’s appeal is confined to the order of imprisonment. The sole ground of appeal is that:

“The learned Single Magistrate erred in law in ordering that I be imprisoned for three months without first complying with the proviso to Rule 25 of the Magistrates’ Court Rules.

5. Rule 25 of the Magistrates’ Court Rules states as follows:

“25(1) Upon a judgment of a magistrates’ court for any sum of money such court may –

(a) Order the sum to be paid forthwith, and in default of payment order that the de3fendant be imprisoned; or

(b) Order the sum to be paid by instalments and in default of the payment of any instalment order that the defendant be imprisoned”.

6. There are two provisos to Rule 25(1). The first proviso deals with the sentence of imprisonment to be in line with the scale provided. The second proviso is as follows:

“Provided further that no order of imprisonment under this regulation shall be made unless it is proved to the satisfaction of the court that the person making default has, or has had since the date of the judgment, the means to pay the debt but refuses or neglects to do so”.

Arguments

7. Mr Berina confined the appellant’s argument on the order of imprisonment made by the Single Magistrate. Counsel submitted that the Single Magistrate was wrong in law to simply order the appellant to be imprisoned without ascertaining whether she had the means to pay but refused to pay the judgment debt. That no order of imprisonment shall be made unless it was proved that the appellant has the means but refused to pay.

8. Mr Berina further submitted that despite the absence of the appellant at the enforcement hearing, the respondent is not relieved of the burden to proving that the appellant has the means but refused to pay. The respondent did not comply with Rule 25 in this case and as such the Single Magistrate could not make the order of imprisonment against the appellant.

9. Ms Kabure submitted that the appellant knew she owed the respondent the sum of $6,008.00 which the Magistrates’ Court ordered her to pay on
29 August 2017. She failed to do so. The respondent was entitled to enforce the judgment.

10. Counsel further submitted that the appellant failed to attend the enforcement hearing on 27 December 2017. As such there was nothing before the Court to show that she did not have the means to pay. The Single Magistrate was entitled, therefore, to order enforcement of the judgment and had her imprisoned for three months. The burden to establish her means, argued Counsel was on the appellant.

Procedure of Enforcement

11. The Magistrates’ Court Rules, in particular, Rule 25 sets out the “Mode of Enforcing judgment” in a civil claim. That rule made it clear that imprisonment of the judgment debtor is the last resort.

12. Following a judgment of the Magistrates’ Court ordering a sum of money to be paid by the defendant to the plaintiff, the next step and (1) the first in the enforcement process is to apply to the Court (Magistrates’ Court) for an order that the full sum ordered and due or such sum (if some payment has been made) due be paid forthwith. (2) If the defendant fails to pay and the plaintiff is considering an enforcement by way of imprisonment of the defendant, an application is to be made to the Court and the plaintiff to prove to the satisfaction of the Court that the defendant had the means to pay the debt but he refuses or neglects to do so. (3) Only then, upon proof that the defendant has the means and refuses or neglects to pay, that an order of imprisonment can be made to have a judgment debtor imprisonment.

13. Rule 25(a) and (b) together with the proviso must be read together and applied. It is wrong to impose an imprisonment sentence on the judgment debtor immediately following his or her default to meet the judgment debt.

14. A practice seems to arise and permeate in this jurisdiction, especially in civil judgments made in the Magistrates’ Courts, of immediately running to the Court to enforce civil judgments through imprisonment of judgment debtors. Rule 25 of the Magistrates’ Court Rules clearly does not condone such a practice without complying with the requirements of the rules, in particular, rule 25.

15. I think it is worth noting that a person ordered to be imprisoned for failing to pay a civil debt is put in prison at the behest of the plaintiff. Such a prisoner is in effect a civil prisoner and strictly the responsibility for the upkeep and maintenance of that civil prisoner while in prison is on the plaintiff, not on the State. Only prisoners who are convicted of criminal offences and for contempt of Court are strictly the responsibility of the State. However, even in cases of contempt, a contempt procedure must be followed before a contemnor is sent to prison.

16. This is not simply a question of default of payment of a debt and followed by order of imprisonment. The Courts must be vigilant in ensuring that its processes are adhered to and not abused.

17. Rule 25 of the Magistrates’ Court Rules also provides for an alternative means of enforcement of its civil judgments, namely payments in instalments. In default of that, an imprisonment procedure can then be applied.

Result

18. In this case Rule 25 of the Magistrates’ Court Rules has not been followed. The imprisonment sentence imposed on the appellant is not lawful and must be set aside.

19. The appeal is allowed. The order imposing three months’ imprisonment sentence on the appellant is set aside.

20. This appeal is only confined to the enforcement sentence of imprisonment on the appellant. The judgment debt made by the Magistrates’ Court on
29 August 2017 remains effective and enforceable.

Dated the 6^th day of November 2019

SIR JOHN MURIA
Chief Justice