Attorney General iro Director of Lands v Rewi [2023] KIHC 1; Civil Appeal 13 of 2015 (16 January 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL APPEAL 13 OF 2015

BETWEEN:
AG IRO DIRECTOR OF LANDS
Appellant

AND:
RARAKITA REWI
Respondent

Date of Hearing: 04 JANUARY 2023
Date of Judgment: 16 JANUARY 2023

Appearances: Mr Monoo Mweretaka for the Appellant
Mr Raweita Beniata for the Respondent

JUDGMENT

This is an appeal against the decision of the magistrate court in BetCiv 172/15 when it made its decision without the presence of the defendant or appellant in this present case. The claim in the magistrate court was about the compensation of $1965 for withholding the plaintiff’s land rent. The decision was for the defendant in the lower court to pay $1965 to the plaintiff for the following breakdown;
$530 for the land rent
$40 for tally fare from Maiana
$500 for expenses incurred from this case
$900 General damages and
$5 for court fees

The case started before the magistrate court in 2015 and was adjourned several times because of the defendant. In August 2015, the case was called again and Counsel for the defendant/appellant in this present case did not turn up as he was busy attending another court hearing before the High Court. He conveyed his reasons to the clerk of the magistrate court which was also recorded in the court minutes but in the judgment of that court it was mentioned that the absence of the defendant/appellant in this present case was without reason/excuse.

The appellant raised the issue of natural justice, that the magistrate court had denied them the opportunity to be heard when the decision was made without their presence.

Counsel for the appellant referred this Court to the case of Tebano v Keanginimawa [2012] KICA 10 where the appellant was not summoned to the hearing of the magistrate court and his application before the High Court was dismissed. The Court of Appeal upheld his appeal on the ground that the appellant who would be the beneficiary of the will in dispute was not notified of the hearing at the magistrate court therefore his right to be heard has been denied.

On the other hand, Counsel for the respondent submitted that an appeal to this Court is an abuse of the process as it is not the appropriate remedy. Reference to the decision of the Court of Appeal in Central Pacific Producers Ltd v Favae [2016 KICA 9 was made whereby that Court ruled that ‘where a case is decided in the absence of a party who seeks to impugn the decision and explain their non-appearance, the remedy is to apply to the trial Court to set aside the decision and for a rehearing. The trial Court is in the best position to decide whether the failure to appear should be excused and, if so, on what terms.’

There was also a question raised by Counsels as to whether or not this was a default judgment. I agree with Counsel for the respondent that the judgment entered against the defendant in this lower court was a judgment made in default of his appearance.

Having considered both submissions and the case authorities referred to above, I agree with the appellant that natural justice requires that the party having an interest in the matter must be given a chance to be heard before the matter was decided. I also agree that one needs to go back to the trial court to explain their reason for not attending the hearing in order to have the judgment set aside and the trial court is in the best position to decide whether the failure to appear should be excused and, if so, on what terms, however, in this particular case the defendant did convey his reason for not attending the court hearing as he was busy with another case before the High Court, the trial court nevertheless decided to proceed in their absence.

The following records from the minutes confirms that the magistrate court did receive the reason for the non-appearance of the defendant’s Counsel;
See conversations 3 and 4;
“Court: Did the AG consult you?

Clerk: I was informed by Tiotaake that Monoo will attend the High Court hearing.”

At conversation 10;

“Court: We can start without them as they did not inform the court of their absence...”
In the last paragraph of the judgment the magistrate court stated as follows;
“Since the defendant failed to turn up again without a reason and this is the fourth time the case was adjourned, this Court will enter judgment for the plaintiff and the defendant must pay $1965.00 within a month.”

The above court minutes shewn that the magistrate court had known the reason why the defendant’s lawyer did not turn up. Monoo (Counsel for the defendant) conveyed his reason through Tiotaake, one of the court clerks. Instead, the magistrate court regarded their absence as without a reason, meaning that their failure to attend was no excused and issued a judgment against the defendant without hearing supporting evidence from the plaintiff. I find that the magistrate court had not properly exercised its discretion when it refused to accept the fact that Counsel for the defendant was busy with another matter before the High Court as attendance before the higher courts has priority over lower court.

For reasons stated above, I find that the principle of natural justice has been breached when the court decided to proceed without the defendant’s presence, they have an interest in the matter, moreover they have an intention to challenge some of the items in the breakdown as stated in Minutes dated 4/05/2015, paragraph 3, starting with Monoo’s statement. They have the right to be heard by the magistrate court before the decision was made but they were not given this chance.

What also concerns this Court is the fact that the decision was made without the magistrate court having heard supporting evidence from the plaintiff. Rules 23 of the Magistrate Court Rules requires that if the defendant fails to attend the court hearing, the plaintiff, after proving service, must prove to the satisfaction of such court the claim sought to be enforced and the court can make an order as to the nature of the case demands. This requires the court to hear evidence in support of the claim and none of this was shown in the minutes. In fact, the record shows that when the magistrate court decided to proceed in the absence of the defendant, Counsel for the plaintiff asked the court if the court would like to start from hearing evidence from the plaintiff or just enter the judgment against the defendant. The magistrate court responded by entering judgment against the defendant at the full amount claimed. Pls see Minutes dated 4/08/2015, last three paragraphs/conversations between Iareto and the Court.

The appeal is allowed. The decision of the Magistrate Court is quashed and the matter is reverted back to the magistrate for rehearing.

Cost is awarded to the appellant to be taxed if not agreed.

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice