Kiaman v Development Bank of Kiribati [2019] KIHC 59; Miscellaneous Application 25 of 2019 (12 June 2019)

IN THE HIGH COURT OF KIRIBATI 2019

MISCELLANEOUS APPLICATION NO. 25 OF 2019
(ARISING FROM HIGH COURT CIVIL CASE NO. 28 OF 2016)

[MOUATA KIAMAN RESPONDENT/PLAINTIFF
[
BETWEEN [AND
[
[DEVELOPMENT BANK OF KIRIBATI APPLICANT/DEFENDANT

Before: The Hon Chief Justice Sir John Muria

11 June 2019

Ms Taoing Taoaba for Plaintiff/Respondent
Ms Batiwate Itibita for Defendant/Applicant

RULING

Muria, CJ: The applicant/defendant Bank has applied to admit the affidavit evidence of its witness, Enoka Moantaeka, whose same affidavit evidence was refused admission by the Court on 2 November 2018. The applicant/defendant is seeking an order “to allow the Defendant to reinstate Mr Enoka’s evidence”. That evidence was contained in Enoka Moantaeka’s affidavit sworn to on
1 November 2018 and filed on the same date.

2. In his affidavit of 1 November 2018, Enoka Moantaeka deposed to in paragraph 5 as follows:

“5. I remembered well that starting from the 5^th July 2015 to the
8^th July 2015 I made entries in the Watchmen’s logbook reporting Mr Kiaman’s absences”.

3. The deponent went on to say that the Logbook was taken to the Human Resources Manager. He then stated that the Logbook could not be found despite searches being made to locate it.

4. At the hearing on 2 November 2018, objection was taken by Counsel for the respondent/plaintiff to the admission of that affidavit of Enoka Moantaeka. The basis of the objection was that the affidavit was of no value at all, unless the Logbook was produced. The Court refused to admit the affidavit of
Enoka Moantaeka sworn to and filed on 1 November 2018.

5. The Court has discretion to accept or reject evidence from a witness, particularly where such evidence is so hopeless that it would be fruitless to accept it. The affidavit of Enoka Moantaeka of 1 November 2018 which the applicant/defendant now seeks to “reinstate” clearly falls into that hopeless category and it would be of no evidential value to have it reinstated. The affidavits filed in support of this application for reinstatement of
Enoka Moantaeka’s affidavit do not alter the status of the affidavit of
Enoka Moantaeka of 1 November 2018 which was refused by the Court to be admitted at the 2 November 2018 hearing.

6. The application to reinstate affidavit evidence of Enoka Moantaeka is refused.

7. The second limb of the applicant’s application is for leave to call a new witness. Counsel for the respondent/plaintiff has no objection to that request provided the affidavit of the new witness is filed and served on the plaintiff or Counsel.

8. Leave to call new witness is not opposed and I grant leave to the applicant/defendant to call the new witness who must file affidavit evidence within 14 days and serve it on the plaintiff or Counsel. The respondent/plaintiff is given 14 days upon receipt of the affidavit of the defendant’s new witness to file a reply if needed.

9. There will be no order on costs since both parties made success in this application.

10. ORDER:

1. Leave to allow the affidavit evidence of Enoka Moantaeka of
   1 November 2018, to be reintated is refused.
   
2. Leave to call a new witness by the defendant is granted.
   

Dated the 12^th day of June 2019

SIR JOHN MURIA
Chief Justice