Attorney-General v Mariana [2019] KIHC 123; Civil Appeal 19 of 2018 (22 November 2019)

IN THE HIGH COURT OF KIRIBATI 2019

CIVIL APPEAL NO. 19 OF 2018

[ATTORNEY-GENERAL IN RESPECT OF
[HOUSING CORPORATION APPELLANT
[
BETWEEN [AND
[
[TIANTAAKE MARIANA RESPONDENT

Before: The Hon Chief Justice Sir John Muria

12 November 2019

Ms Raaman Teneaki for Appellant
Ms Elsie Karakaua for Respondent

JUDGMENT

Muria, CJ: The appellant, by its Notice of Appeal filed on 30 October 2018, appealed against the decision of the Magistrates’ Court given on 16 August 2018 in BetCiv No. 87/18. The grounds of appeal area:

That the Magistrate erred in law in that:

(a) The appellant was denied the opportunity to be heard;
(b) The appellant was not accorded a fair trial

and therefore is a breach of natural justice.

2. The Orders sought are that the decision of the Magistrates’ Court be set aside and the case be remitted to the Magistrates’ Court for re-hearing. In support of the appeal, the appellant filed and relied on the affidavit of
Vincent Tong sworn to on 8 November 2019.

Brief background

3. The plaintiff, now respondent, brought a claim in Nuisance against the defendant, now appellant, claiming damages in the sum of $2,805.00 for faulty toilet. The respondent moved into the house which was owned by the appellant and found the bathroom and toilet were not in working conditions. Attempts to have the toilet fixed were not successful. Neighbours also complained about the bad odour coming from the respondent’s premises. The respondent had to spend her own money to have the toilet fixed so she and her family could be able to use.

4. The respondent did not claim damages for inconvenience and discomfort suffered due to the faulty toilet. The respondent only claimed reimbursement for the expenses she had to pay to fix the toilet.

5. The respondent occupied the house under a Tenancy Agreement. Under the said Agreement, the appellant was responsible for the maintenance of the house, which included fixing blocked toilet and other things.

The respondent’s case in the Magistrates’ Court

6. The respondent’s demand for reimbursement was refused by the appellant and so the respondent filed her claim in the Magistrates’ Court in
May 2018. The case was fixed for hearing on 7 August 2018 and summons to attend the hearing was duly served on the appellant on 3 July 2018.

7. On 7 August 2018 the case was called. The respondent and her lawyer attended and were present in Court. The appellants were not present. The Magistrate, being satisfied of service upon the appellant, proceeded to hear the respondent’s evidence and adjourned to 16 August 2018 for judgment.

8. On 16 August 2018, the Single Magistrate gave his judgment in favour of the respondent. The total sum awarded to the respondent was $2,805.00 as stated in her claim.

Appellant’s appeal

9. The appellant’s case is that the Single Magistrate was in breach of the rule of natural justice by proceeding to hear the plaintiff’s claim in the absence of the appellant. That, says the appellant, was also a denial to the appellant of a fair trial.

10. In the affidavit of Vincent Tong, the appellant agreed they were served with notice of hearing on 3 July 2018 to attend Court on 7 August 2018. The appellants were not present and the Court proceeded to hear the case .

11. The reason for not turning up for the hearing was due to “unforeseen circumstances”, as mentioned in paragraphs 6 and 10 of Vincent Tong’s affidavit. No other explanation for the failure to attend Court was given.

12. Then there is the suggestion in paragraph 7 Vincent Tong’s affidavit that,

“I requested the Court to allow us to hear our defence or accept our written submissions in the light of judgment having not yet being delivered. Unfortunately, the court refused to hear the merits of our case”.

13. It is not entirely clear as to when the appellant’s request to be heard was made to the Court. On the record, there was no evidence of such a request being made in Court, otherwise the record could have reflected it. In all likelihood, the appellant must have turned up at the Court after the Single Magistrate finished hearing the respondent’s case and adjourned the case for judgment.

Disposition of the Appeal

14. It is worth noting the reasons why the Single Magistrate decided to proceed with the case in the absence of the appellant. The Single Magistrate stated as follows:

“The defendant did not come to court and after confirming that the summon has been served as stated on the affidavit of service the court decide that the case will proceed on without the defendant. Section 23 of the Magistrate Court Rules, Civil Procedure.

These are some of the reasons why the court continues to hear the case without allowing the adjournment of the case as the court can allow this under section 23.

(1) It was more than 10 minutes to wait for the defendants
(2) There was no reply of the demand letter of the plaintiff dated the 11^th of August 2017 from the defendants however the contents letter is the claim for the discomfort of the result of the toilet being blocked.
(3) The breakdown on the claim of the plaintiff is explained more on page 3 of the demand letter.
(4) The demand letter of the plaintiff has been followed up by her lawyer dated the 28^th of September 2017 in which there was no formal response from the defendant end”.

15. The Single Magistrate’s decision was in line with Rule 23 of the Magistrates’ Court Rules. That section provides as follows:

“r. 23 If a defendant does not appear on the day named in the writ of summons for the hearing thereof, the court may, upon proof that the same has been served and the plaintiff proving to the satisfaction of such court the claim sought to be enforced, make an order upon such writ of summons as the nature of the case demands, and such order may provide for the payment by the defendant to the plaintiff and his witnesses, if he and those witnesses have attended at the place of hearing, of such compensation for loss of time as to the court seems just”.

16. The appellant’s reason for their absence was put as “due to unforeseen circumstances”. Whatever that entailed was not made clear. That, unfortunately, cannot be sufficient for the Court to hold back the exercise of the Court’s discretion in favour of proceeding with the case, due service having been effected on the appellant.

17. In my view, the Single Magistrate was perfectly entitled to proceed to hear the respondent’s case for the reasons set out in his judgment.

Whether appellant was denied opportunity to be heard

18. The right to be heard is not lost just because a person or a party is unable to be present in Court or before a tribunal to present his or her case. The person complaining about being deprived of the right to be heard must establish that he or she has not been given the opportunity to present his or her case to challenge the evidence or the claim of the claimant.

19. In the present case, the appellant had been duly served with a notice to attend trial. At the return date, the appellant did not turn up for the hearing. The appellant knew of the respondent’s case against them. There had been correspondence on the respondent’s claim made by the respondent to the appellant supported by documentary evidence. The appellant either ignored or deliberately refused to consider the respondent’s claim. At the hearing of the respondent’s case against the appellant in court, the appellant failed to turn up for the hearing despite being duly served with the notice of hearing. The appellant had been given the opportunity to come to Court and to answer the respondent’s claim. They fail to do so. They cannot now complain about being deprived of their right to be heard.

20. It has been stated that “natural justice does not generally demand orality: Morgan Grenfell & //Co Ltd, R (on the application of) –v- Special Commissioner [2001] EWCA Civ 329 (2 March 2001). The requirement of providing to the appellant with a reasonable opportunity of being heard, had been accorded to the appellant in this case. There is no requirement that the Court necessarily should come face to face with the appellant for the principle of natural justice to be fulfilled.

21. The principle is similarly expressed by the Kiribati Court of Appeal in Tooma –v- Kiribati Insurance Corporation [2009] KICA 7; Civil Appeal 01 of 2009 (26 August 2009) where the Court states:

“A right to be heard does not necessarily mean a right to be heard in person. What is essential is that the person has a proper opportunity to put before the relevant body all that he wanted to say in response the grounds being considered by that body”.

22. The appellant as not been deprived of the opportunity to be heard in this case. The appellant’s complaint is rejected.

Complaint of not being accorded a fair trial

23. The appellant’s next complaint that they were not accorded fair trial must be considered in the light of the circumstances of the case. In this regard, there are two factors that the Court must consider. The first is to ascertain if the appellant has been made fully aware of the nature of the respondent’s claim against it.

24. Before the Single Magistrate, the respondent presented her case supported by her affidavit evidence. Attached to her affidavit were the letter she wrote to the appellant’s Chief Executive Officer dated 11 August 2017 which outlined her claim. Along with the letter to the appellant’s CEO were pictures taken of the faulty toilet pipes and surrounding areas affected. Pictures were taken of the work done by the respondent to fix the faulty toilet system. In addition, correspondence between the respondent’s lawyer and the appellant were also tendered in Court. The letter outlined the respondent’s claim.

25. A copy of the Tenancy Agreement between the appellant and the respondent had also been pointed out to the appellant and submitted to the Court. A letter of demand from the respondent’s lawyer was sent to the appellant on 28 September 2017. Despite all the correspondence, the claim and details of the respondent’s claim put to the appellant, there was no response from the respondent.

26. The appellant, in my view, clearly were aware of the claim and allegations made against them. They have been fully appraised of the nature and details of the respondent’s claim.

27. Secondly, the Court must consider whether the respondent had been made fully aware of the evidence relied upon by the respondent to establish her claim. The evidence, including photos taken of the faulty toilet pipes and work done. In the Court’s view, the appellant were given abundant evidence of the respondent’s claim and more than enough opportunities for their responses to the respondent’s claim.

28. On the evidence before the Single Magistrate and for the reasons stated, the appellant has failed to demonstrate that the trial was not fair. The appellant was fully aware of the nature of the claim brought by the respondent against it. The appellant had all the opportunity to present their case. The trial was clearly fair. The appellant’s claim that the trial was not fair is rejected.

29. For the above reasons, the appellant’s appeal cannot be sustained and it is rejected. The appeal is dismissed with costs to the respondent.

30. ORDER: 1. Appeal dismissed
2. Costs to be respondent to be taxed if not agreed.

Dated the 22^nd day of November 2019

SIR JOHN MURIA
Chief Justice