Attorney General v Dennis Kum Kee (trading as Big D Enterprises) [2020] KIHC 22; Miscellaneous Application 107 of 2018 (8 October 2020)

IN THE HIGH COURT OF KIRIBATI 2019

MISCELLANEOUS APPLICATION NO 107 OF 2018
(ARISING FROM HIGH COURT CIVIL CASE NO. 28 OF 2017)

[ATTORNEY-GENERAL IN RESPECT OF
[MINISTER OF LINE AND PHOENIX
[ISLAND DEVELOPMENT APPLICANT
[
BETWEEN [AND
[
[DENNIS KUM KEE T/A BIG D ENTERPRISES RESPONDENT

Before: The Hon Chief Justice Sir John Muria

23 & 27 November 2018

Ms Tumai Timeon for Applicant
Ms Elsie Karakaua for Respondent

JUDGMENT

Muria, CJ: This is an application for setting aside default judgment entered against the defendant. The Court apologises for the delay in delivering the judgment in this matter which is partly due to the file being misplaced after the hearing of the application.

Brief background

2. On 13 April 2016, the defendant hired the plaintiff’s double cabin vehicle for the defendant’s use during the Parliament sittings from
13 April to 10 May 2016 at the cost of $387.10 per day. The cost of the hire for the period 13 April to 10 May 2016 was $10,451.70.

3. On 3 August 2016, the defendant again hired the said vehicle at the same rate of $387.10 per day. The total cost for the hire was $10,838.80. The defendant had failed to pay the sum of $10,838.80 to the plaintiff, despite demands letters from the plaintiff’s lawyer.

4. No appearance was entered for the defendant. As a result, the plaintiff sought default judgment which was entered against the defendant on 2 March 2018.

Defendant’s reasons for seeking a setting aside

5. The defendant’s reasons for seeking setting aside set out in Counsel’s submission are first, an alleged miscommunication between the Ministry’s Headquarter in Kiritimati Island and branch office in South Tarawa. The miscommunication is said to be between the Permanent Secretary in Kiritimati Island and the Linnix Agency in South Tarawa. Such a reason for not taking the necessary action after being served with a writ of summons is not acceptable. An ordinary person who does not know much about Court matters may be excused but very senior officers in the Government cannot be heard to say that they did not know what to do when served with a writ of summons. The writ is written in plain English stating that -

“YOU ARE COMMANDED that within fourteen days after the service of this writ on you, inclusive of the day of service, you do cause an appearance to be entered for you in an action at the suit of the plaintiff, and to take notice that in default of your so doing, the plaintiff may proceed therein, and judgment may be given in your absence”.

6. This is not the first case where a defendant Government Ministry raised such argument in this Court, in an attempt to justify defaults for not entering appearance or filing defences to an action, brought by a plaintiff against a defendant government Ministry. See Baate –v- Tierata, Tirae, Waitaake and Attorney-General [2020] KIHC 8; Miscellaneous Application 17 of 2020 (20 May 2020).

7. Secondly, it is argued for the defendant that the Attorney-General had not been served in this case. Relying on section 13 of the Proceedings by and against the Republic Ordinance (Cap 76a), Counsel for the defendant argued that the Attorney-General is a party to every action by and against the Republic. I agree that the Attorney-General is a party to all actions by and against the Republic. However, in many of the cases against a Government Ministry or Department, the Attorney-General is sued as “in respect of (iro)” the particular Ministry, as in the present case. The Attorney-General is the legal adviser to all Government’s Ministries. In my view, service of a writ of summons on a particular officer in a Ministry such as on a Permanent Secretary or senior officer is just as effective a service, as service on the Attorney-General.

8. In such a case it is incumbent on the Permanent Secretary or the senior officer in the particular Ministry to ensure that the Writ is transmitted without delay to the Attorney-General within the 14 days required for the defendant Ministry to enter an appearance as required by the rules. It is not acceptable for Secretary or Senior Officers in the Ministry to sit on the writ and bank on the argument that the
Attorney-General has not been served personally and use that as the basis for seeking setting aside the default judgment. The argument relying on the alleged lack of service on the Attorney-General in this case is rejected.

9. Counsel for the defendant, however, raised the argument that the claim in this case involves a contractual agreement between the plaintiff and defendant. As such Counsel argued, relying on section 4A of the Proceedings by and against the Republic (Amendment) Act 1996 and section 3 of the Government Liability Act 2010, that the contract ought to be in writing as required by law. Counsel submitted that as the contract was not in writing, the plaintiff could not rely on it. This is basically a legal defence based on statutes and one that may well go to the merit of the defendant’s case. See Riteri –v- Betio Shipyard [2013] KIHC 30; civil Case 146 of 2011 (31 July 2013). In the Court’s view, the applicant has shown a defence on the merit in this case. See Raratu –v- Jian Pei Li [2020]
KIHC 1.

10. There is, however, a further strong argument which gives the Court power to set aside default judgment entered against the State. Counsel for the defendant has not sought to rely on it, but which this Court cannot simply ignore it. Order 29 r.14 of the High Court (Civil Procedure) Rules provides that leave of the Court is required before judgment in default of pleadings can be entered against the State. See Iotebwa –v- Attorney-General [2020] KIHC 11; Miscellaneous Application 144 of 2019 (29 May 2020).

11. There is no evidence before the Court to show that leave has been sought and granted before the default judgment was entered against the defendant on 2 March 2018. The judgment in default entered against the defendant in this case was obtained in breach of O.29 r.14 of the High Court (Civil Procedure) Rules and as such it must be set aside.

12. Judgment in default entered on 2 March 2018 against the defendant is set aside. Case to proceed in the usual manner.

Dated the 8^th day of October 2020

SIR JOHN MURIA
Chief Justice