Kabeia v Tanaki [2021] KIHC 20; Miscellaneous Application 57 of 2020 (10 March 2021)

IN THE HIGH COURT OF KIRIBATI 2020

Miscellaneous Application No. 57 of 2020
Arising from High Court Civil Case No. 93 of 2019

[BAREITI KABEIA
[KANTARAWA TEUEA APPLICANTS
[
BETWEEN [AND
[
[KOROTAERE TANAKI
[TEAUATARA TANAKI
[BUREBURE BOUTU
[TOKATAANE BOUTU RESPONDENTS

Before: The Hon. Commissioner of the High Court

10 March 2021

Mr Tabibiri Tentau for Applicants
Ms Taaira Timeon for Respondents

JUDGMENT

1. By their Notice of Motion filed on 8 May 2020, the Applicants who are Defendants in the original civil suit applied to set aside the default judgment issued on 20 February 2020. The application was supported by the affidavit of the second Applicant, Kantarawa Teuea.
   
2. Ms Timeon, appearing for the Respondents who are Plaintiffs in the main civil suit rejected the application.
3. Both counsels filed submissions which are very helpful to this court. Mr Tentau, for the Applicants argued that the default judgment should be set aside in order for the Applicants/Defendants to defend the civil action on merits.
4. Their main proposed defence stipulated in the affidavit of Kantarawa Teuea at number 7 asserting that the portion of land they reside on island Bakabuke 604i while the Plaintiffs’ land is Bakabuke 604e. There has been no boundary determination to determine which land is Bakabuke 604i or e.
5. Ms Timeon for the Respondents/Plaintiffs submitted and agreed that no boundary determination has decided on the boundaries of the two lands however the land on which the Applicants are residing is owned by the Respondents/Plaintiffs.
6. This court considers that the proposed defence for the Applicants discussed earlier raises a valid point that should be considered in the substantive civil suit. Since a boundary determination is yet to decide the boundaries of the two lands Bakabuke 604i and 604e, the default judgment against the Applicants which will eventually evicts them from the land cannot be maintained. To this end, this court does not need to consider the other grounds for the setting aside of the default judgment.
7. However, the Respondents/Plaintiffs have conducted their civil suit in accordance to the Rules until the issuance of the default judgment while the Applicants delayed in responding to the suit. To this extent, the Respondents shall be awarded with some costs.
   
8. ORDER
   1. Application to set aside default judgment issued on 20 February 2020 is granted.
   2. Costs of $100.00 to be paid by the Applicants/Defendants to the Respondents/Plaintiffs.
   100. The civil case will continue in the normal procedure.
        

Dated the 19^th day of March 2021

ABUERA URUAABA
COMMISSIONER