Asafo v Tekinene [2020] KIHC 29; Civil Appeal 3 of 2017 (20 October 2020)

IN THE HIGH COURT OF KIRIBATI 2019

CIVIL APPEAL NO. 3 OF 2017

[MELEMELE ASAFO APPELLANT
[
BETWEEN [AND
[
[NAKINA TEKINENE RESPONDENT

Before: The Hon Chief Justice Sir John Muria

31 July 2017

Mr Banuera Berina for Appellant
No Appearance for Respondent

JUDGMENT

Muria, CJ: On 31 July 2017, the appeal by the appellant in this case was allowed and the Court stated that the full reasons would be given later. These are the reasons for allowing the appeal.

2. In the Magistrates’ Court, the respondent brought a money claim against the appellant in the sum of $7,255.00. The appellant did not appear. Judgment was issued against the appellant on 5 December 2016 to pay the amount $7,255.00 to the respondent. The appellant defaulted in payment.

3. On 7 April 2017, the Magistrates’ Court issued an order directing the police to take the appellant into prison and keep her for three months for non-payment of the amount of $7,255.00 as ordered by the Court. It appears from the record that the Magistrates’ Court, pursuant to Rule 25(1)(a) and (b) of the Magistrates’ Court Rules, issued an enforcement order to have the appellant imprisoned for failing to pay the judgment debt in the sum of $7,265.00.

4. Rule 25 provides 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”.

5. There are two provisos to Rule 25(1) of the Magistrates’ Court Rules. The first is concerned with ensuring that the sentence of imprisonment is conformed to the scale provided. The second proviso requires the Court to be satisfied that the defaultee has the means to pay the debt but refuses to pay. The second proviso states:

“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”.

6. Mr Berina’s argument is that the Single Magistrate was wrong, in law, to simply order the appellant to be imprisoned without ascertaining first whether the appellant had the means to pay but refused to pay the debt, as required by rule 25(1) of the Magistrates’ Court Rules. The proviso to the rule makes it clear that “no order of imprisonment ..... shall be made unless it is proved to the satisfaction of the Court that the person making the default has ..... the means to pay the debt but refuses or neglects to do so”, the proviso which the Single Magistrate clearly did not follow in this case.

7. The practice of ordering a debtor to be imprisoned without complying with Rule 25(1) of the Magistrates’ Court Rules must stop. It is not right in law to follow such a practice.

8. I am satisfied that the Single Magistrate did not comply with rule 25(1) in this case. As such the order of imprisonment made on
17 April 2017 was made in breach of the said rule. It must be set aside.

9. As announced in Court on 31 July 2017 the appeal was allowed. The above are the reasons for allowing the appeal.

Dated the 20^th day of October 2020

SIR JOHN MURIA
Chief Justice