Attorney General v Teneti [2021] KIHC 23; Miscellaneous Application 107 of 2020 (9 November 2021)

IN THE HIGH COURT OF KIRIBATI TE KABOWI AE RIETATA I KIRIBATI

Miscellaneous Application 107 of 2020 arising out of High Court Civil Case 47 of 2020

BETWEEN	THE ATTORNEY GENERAL Applicant
AND	TENIKOUEA TENETI Respondent

Hearing:	16 March 2021
Appearances:	Ms Ruria Iteraera, Solicitor General, for Applicant Ms Taaira Timeon for Respondent
Judgment:	9 November 2021

JUDGMENT

1. Before I consider the miscellaneous application brought before this court, I want to raise the important issue of compliance with the Rules of this court. What is concerning is the carelessness and poor preparation of counsels to adhere to our civil Rules.
   
2. The Applicant’s Notice of Motion was filed in this court under order 13 rule 8, an incorrect rule for applications brought by motions. If counsel for the Applicant bothered to read such rule, its simply empowers this court to set aside default of appearance judgments issued with respect to the Rules mentioned. The default in the present case is the default in defending the civil action not the appearance which was filed within time. The correct Order is 55 which was not mentioned in this application.
   
3. Another issue of concern to this court is the ground(s) of making this application. The Motion only set out orders or reliefs sought with only a statement claiming that the grounds are set out in the affidavit of Ms Teiabauri. According to Order 55 rule 4 said that the application by a motion should always be supported by ground(s) and an affidavit. In this case an affidavit was filed but no clear grounds in the application.
4. Ms Timeon, for the Respondent did not address this court either on the irregularities of the Applicant’s application but continued to respond to such.
   
5. It is very important for counsels to always abide by our Rules for the correct and appropriate resolutions of civil disputes.
   
6. I will now consider the application having regrettably address the irregularities of the application. The Applicant sought an order to set aside the default judgment issued on 26 June 2020. The application was supported by the affidavit of Ms Ruita Teiabauri, the Chief Lands Management Officer.
   
7. The background of the main civil suit started with the filing of the Respondent’s writ of summons together with the statement of claims filed on 6 May 2020. The Applicant filed their memorandum of appearance on 25 May 2021. Until 26 of June 2020, the Respondent did not file its statement of defence against the claim in which the court issued the default judgment against the Applicant. On 21 July 2020, the Certificate was issued (pursuant to section 22 of the Proceedings By and Against the Republic) ordering the Applicant to pay the default judgment in the amount of AUD$42,829.58 plus costs of $500.00 and interest at the rate of 5% from the date of judgment to the date of payment.
   
8. Four months after the default judgment and 3 months after the certificate was issued, on 26 October 2020, the Applicant filed its application to set aside the default judgment and also the first time the Applicant filed its defence to the substantive suit.
   
9. During oral submissions, the Applicant’s case was poorly prepared in which the Solicitor General made submissions without support from precedent quoted. This is bad legal practice and counsels are strongly directed to always support their submissions with relevant laws and prepare to submit precedent relied upon.
   
10. As I often mentioned in applications like this, it is noteworthy to mention that it is a well settled principles of law that a stay of execution is at the discretion of the court of law to be exercised judicially with respect to well-established principles.
    
11. In considering the principles set out in the Waysang’s case (Waysang Kum Kee v Abamakoro Trading Ltd [2001] KICA 9), with respect to the excusable of the delay (failure to appear) caused by the Applicant versus the harm it has on the Respondent/Plaintiff, I find the affidavit of Ms Teiabauri and submissions by the Solicitor General blaming the Lands Department’s officers for not coming back to them and failing to provide relevant information for their defence as inexcusable and a mere excuse for not complying with the Rules for over four months. Such delay has impacted the livelihoods of the Respondent in which her home and leased land is questionable and may face being evicted from the proposed leased land.
    
12. In light of the proposed statement of defence, the Applicant set out that one of the substantive defence to argue is the issue of liability and damages with respect to exercising its statutory power negligently. I agree with the Solicitor General that the issue saves the Applicant from the default judgment and needs to be heard in court for thorough consideration.
    
13. Moreover, another valid issue not raised in the Applicant’s submission is with respect to how the default judgment was sought and issued without leave of the court. I will not dwell on this more but it would have been a persuasive issue in this application.
    
14. In light of the above reasons, this court grants the application to stay the default judgment issued on 26 June 2020. However, costs should be ordered against the Applicant for the delay without any justified reason as strongly submitted by Ms Timeon and accepted by this court.
    
15. Orders of this court:
    

1. A stay of execution of the default judgment against the Applicant issued on 26 June 2020 is granted.
   
2. Costs is awarded against the Applicant (the Attorney General) in the amount of $500.00 to be paid one week from today.
   

Dated 9^th day of November 2021

__________________________
Judgment of Abuera Uruaaba,
Commissioner of the High Court