Ruuka v Tibua [2023] KIHC 46; Civil Appeal 19 of 2015 (1 December 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL APPEAL 19 OF 2015

BETWEEN:
MARONTAU RUUKA
BIITE MARONTAU
Appellant

AND:
BARANIKO TIBUA
Respondent

Date of Hearing: 21 NOVEMBER 2023
Date of Judgment: 1 DECEMBER 2023

Appearances: Ms. Marewenimakin Babera for the Appellant
Ms. Elsie Karakaua for the Respondent

R U L I N G

1. This is an appeal against the magistrate court decision in MisApp 106/15, delivered on 22 December 2015. In BetCiv 315/11, the respondent sued the appellants in the court below for $2,987.80 plus a $50 cost. MisApp 106/15 concerns the enforcement of BetCiv 315/11. The court ruled in Mis App 106/15 that the appellants must pay the judgment debt within two months or they may be imprisoned.
   
2. The case had been listed several times before my predecessor, Justice Muria, in 2015 and 2019. When the case was listed before my court in December 2022, I tasked Counsels for the appellants and respondent to check with their records on the current status of the case and to confirm if there is a pending application to be dealt with by this Court.
   
3. I asked for the above because in the casefile there seem to be two court orders signed in relation to the enforcement of BetCiv 315/11. One court order was signed on 15 May 2015 for High Court Civil Appeal 10 of 2012, concerning the same parties, in which the appellants, Marontau Ruuka and Biite Marontau, withdrew their appeal. The other court order was for this particular case, High Court Civil Appeal 19 of 2015. This second order was signed by the High Court on 22 November 2019 for the respondent’s cost of $75 to be paid by the appellants, Marontau Ruuka and Biite Marontau.
4. Anyway, when I called this appeal case again, there was no discussion about the case status as both Counsels withdrew from representing both parties, so the matter was adjourned for the parties to be served personally and to come with their new lawyers. That’s when these current lawyers took over the case—Ms. Babera for the appellants and Ms. Karakaua for the respondent.
   
5. Ms. Babera, for the appellant, filed and served an amended Notice of Appeal, and the case was listed for hearing. After several adjournments, the hearing was conducted on 21 November (this month), and judgment was reserved.
   
6. While preparing for my judgment, I went through the casefile and realised that the order signed on 22 November 2019 was an award for cost to be paid to the respondent, Baraniko Tibua, when the appeal was withdrawn. The signed Order did not specifically mention that the appeal was withdrawn, but the court minutes did. The minutes started with Ms. Tekanito, who acted for the appellants, informing the court that they withdrew their appeal as they would consider another application to set aside the default judgment. Mr Beniata, representing the respondent, asked for costs, and the court awarded costs for $75. The Court Order signed was confusing as it did not state the purpose of the cost being awarded to the respondent.
   
7. I also found another vital information while looking at the documents. The minutes of MisApp 106/15 show that when HCCA 10 of 2012 was withdrawn, the respondent took the appellants back to the court again to enforce BetCiv 315/11. The appellants were not happy with the decision of MisApp 106/15, hence this appeal, HCCA 19 of 2015, but they withdrew this appeal on 22 November 2019, and the court awarded a cost of $75, hence the second order dated 22 November 2015.
   
8. Given the above circumstances, this appeal should not be heard again. The court record clearly shows that the appeal was withdrawn on 22 November 2019. The amended Notice of Appeal filed this year by Ms Babera should be disregarded. The Order signed on 22 November 2019 for a Cost of $75 to the respondent remains valid.
   

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice