Kabiriera v Kabiriera [2020] KIHC 6; Civil Appeal 1B of 2017 (4 May 2020)

IN THE HIGH COURT OF KIRIBATI 2019

CIVIL APPEAL NO. 1B OF 2017

[WIRAMWA KABIRIERA APPELLANT
[
BETWEEN [AND
[
[BIBIANA KABIRIERA RESPONDENT

Before: The Hon Chief Justice Sir John Muria

20 November 2019

Mr Reiati Temaua for Appellant
Ms Taoing Taoaba for Respondent

JUDGMENT

Muria, CJ: This appeal, although said to be against the Magistrates’ Court’s decision in a Land Case, is not a land case and it is not about land. The case dealt with by the Single Magistrate in the Magistrates’ Court was a civil case and it was about a claim for maintenance of a child in BikCiv 220/16.

2. The appellant relied on three grounds of appeal namely:

1. That the Single Magistrate erred in law in proceeding with the matter without the presence of the appellant, hence a breach of natural justice.
   
2. That the Single Magistrate erred in law in not affording the appellant ample and reasonable time to present his case.
   
3. That the Single Magistrate had failed to take into consideration the present situation of the appellant before allowing other entitlements to be deducted as part of the maintenance contribution.
   

3. The plaintiff, now the respondent in this appeal, brought a claim for maintenance of her granddaughter Katerine Wiramwa. The defendant is the son of the plaintiff who took care of the defendant’s daughter. The defendant now has a new family.

4. The summons for hearing was served on the defendant. The defendant/appellant failed to turn up for the hearing. The Single Magistrate, having been satisfied that the defendant was duly served, proceeded with the case in the absence of the defendant.

5. The respondent claimed the sum of $125.80 each fortnight instead of only $50.00 per fortnight. The respondent set out the breakdown for the Court and it was set out in the Single Magistrate’s decision. In addition, the respondent also claimed ¹/₃ of the appellant’s allowances such as marking allowances, tax refund and leave grant. As the appellant was not present, there was no challenge to the respondent’s claim.

6. The Single Magistrate’s decision can be best seen from the following part of her judgment:

“Having considered the plaintiff’s case the Court is satisfied that a parent bear a responsibility to provide financial support or maintenance of his own child or in other words he has a customary and legal duty to provide for his child according to section 3(1) of the Maintenance Ordinance Cap 53.

The Court is also satisfied that all that is claimed for money are totally necessary for the educational support for his child together with her entertainment. For the defendant has got a new family and children to provide for, thus this Court deems it proper that the same must be provided and that his daughter must have a separate maintenance so that she would be nurtured and cared for by her grandmother.

$125.00 will be deducted from the defendant’s, Wiramwa Kabiriera, salary and to be given to his mother namely Bibiana for the maintenance of his daughter who is in the custody of Bibiana, ¹/₃ of his leave grant for 2017 and previous years will be given to Bibiana, ¹/₃ of his tax refund for 2017 and previous years must be provided together with a ¹/₃ of his marking allowance starting from 2017, it will also be given to Bibiana.

Right of appeal is given to aggrieved party to appeal within 3 months from today”.

7. The appellant’s complaint is that he was not given the opportunity to be heard and to present his side of the case before the Single Magistrate made her decision. Secondly the appellant complained that in making her decision, increasing the maintenance award, the Single Magistrate failed to take into consideration his present situation before making the order to increase the maintenance award to $125.80 per fortnight as well as ordering deductions from his other allowances.

8. The appellant’s first two grounds of appeal in this case have no merit. The appellant was served with Summons to attend hearing and he failed to turn up. His only excuse for not turning up at the hearing was that he was “mistaken about the date” for hearing. The appellant knew about the hearing and he cannot now rely on the rule of natural justice to complain about not being given the chance to be heard. Grounds 1 and 2 of his appeal are without merit.

9. The only ground of appeal that merit consideration is Ground 3. It is to that ground that I will now turn.

10. The Magistrates’ Court has powers under the Maintenance (Miscellaneous Provisions) Ordinance (Cap 53) to make orders against the appellant for the maintenance of his child, under sections 3(1) and 4(1). However, in both sections 3 and 4, the Court is required to take into consideration “all the circumstances” of every person concerned in the case (section 3(2)). In section 4(2), the Court is obliged by law, before making any order to enforce a maintenance order, to “have regard to all the circumstances and in particular to the resources of the defendant” when making an order to enforce a maintenance order against the defendant.

11. The law thus requires the Single Magistrate in this case to enquire into and to consider the personal and financial circumstances of the appellant before making the order to increase the quantum of the maintenance award to $125.80 per fortnight together with the other additional payments out from the appellant’s allowances. Just because the appellant failed to turn up in Court after being served with notice of hearing, that does not permit the Single Magistrate to ignore the requirements of sections 3(1) and (2) or 4(1) and (2) of the Maintenance (Miscellaneous Provisions) Ordinance. Those provisions are as follows:

“Power of court to make a maintenance declaration

3(1) A court may on application by or on behalf of any person make a declaration that another person or other persons shall be liable to maintain that person where it is satisfied that there is a legal or customary obligation to do so.

(2) Before making a maintenance declaration the court shall make a full enquiry into all the circumstances and in particular shall take into consideration:-

(a) The age of the person for whose benefit the application is made; and
(b) The personal circumstances of every person concerned in the application.

Power of court to make a maintenance enforcement order

4(1) An application to a court may be made by or on behalf of any person for whose benefit a maintenance declaration has been made (hereinafter referred to as the applicant) for an order under this Ordinance against any person who by virtue of that declaration is liable to maintain him (hereinafter referred to as the defendant) on the ground that the defendant has wilfully neglected to provide or to make proper contribution towards reasonable maintenance for the applicant.

(2) On an application under this section the court shall have regard to all the circumstances and in particular to the resources of the defendant and may order –

(a) Payment by the defendant to the applicant or to any other person on the applicant’s behalf or to the court of such sums of money as the court considers reasonable at such times as the court may direct;

(b) Provision by the defendant for the applicant of such shelter and care as the court may direct;

(c) Any reasonable combination of the matters specified in paragraphs (a) and (b);

12. In the light of the above provisions, the proper course for the Single Magistrate to take is to adjourn the hearing and to require the appellant to attend at the adjourned date so that the Court could enquire into the appellant’s personal and financial circumstances. Only having done that would the Single Magistrate be in a position to determine the appropriate amount of maintenance and other orders to be made against the appellant.

13. In the present case, the order made by the Single Magistrate on
22 December 2016 has no basis and it must be quashed. The case is to be remitted to the Magistrates’ Court to hear the matter again so that evidence of all the circumstances of both the appellant and respondent are placed before the Court to enable the Court to determine the amount reasonable for the appellant to pay in this case.

14. Appeal allowed.

Magistrates’ Court’s decision dated 22 December 2016 is quashed. Case remitted to the Magistrates’ Court.

Dated the 4^th day of May 2020

SIR JOHN MURIA
Chief Justice