Irata (trading as Matientaake Store) v Kwong (trading as Taotin General Merchandise) [2023] KIHC 52; Civil Case 58 of 2019; Miscellaneous Application 26 of 2023 (8 January 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 58 OF 2019
MISCELLANEOUS APPLICATION 26 OF 2023

BETWEEN:
MATIENTAAKE IRATA T/A MATIENTAAKE STORE
Applicant

AND:
GEORGE TIARITE KWONG T/A TAOTIN GENERAL MERCHANDISE
Respondent

Date of Hearing: 6 DECEMBER 2023
Date of Judgment: 8 JANUARY 2023

Appearances: Ms Taoing Taoaba for the Applicant
Ms Taaira Timeon for the Respondent

R U L I N G

The Application

1. This is an application to set aside the judgment entered against the applicant on 17 February 2020 for $35,315.80 plus a cost of $500 and the subsequent Writ of Fieri Facias dated 15 July 2020.
   

Analysis;

2. The crux of the applicant’s case is that Order 9 Rule 12 of the High Court Civil Procedure Rules was not complied with when the default judgment was entered. This Rule states as follows;

“Indorsement of service.
R.S.C. O.9, r.15.

12. The person serving a writ of summons shall, within three days at most after such service, indorse on the writ the day of the month and week of the service thereof, otherwise the plaintiff shall not be at liberty, in case of non-appearance, to proceed by default; and every affidavit of service of such writ shall mention the day on which such indorsement was made. This Rule shall apply to substituted as well as other service.”

3. Indorsement must be done within three days from the date of service of the writ. In this case, the plaintiff processed the endorsement of their writ nine days after service. The applicant submitted that the plaintiff is barred from proceeding by default for non-appearance because of non-compliance with the above Rule.
   
4. The respondent/plaintiff did not make any counter-argument on the above issue. Instead, the respondent/plaintiff focused on the strength of the defence; there must be a substantial defence for the default judgment to be set aside, see Waysang Kum Kee v Abamakoro Trading Co Ltd [2001] KICA 9. The proposed defence is stated in the applicant’s affidavit paragraphs 8 and 9, and the proposed defence was also filed with this application. The applicant’s proposed defence is that they have no unpaid invoice, as claimed in paragraph 1 of the Statement of Claim.
   
5. The respondent also raised their concern regarding the technicality of the application. According to them, there must be two separate applications for setting aside the default judgment and the writ of fieri facias as the Rules provide different Rules for each. The applicant objected to this argument, and I agree that even if there are two different Rules, they can be covered in one application as both must be heard together. This is because the writ of fieri facias cannot exist once the judgment is set aside.
   
6. Having mentioned the above, I accept that there is a substantial defence. I also agree with the applicant that Order 9 Rule 12 was not followed, which must be observed, as that is the purpose of having these Rules. In my view, combining the breach of Order 9 Rule 12 with the fact that there is a substantial defence, the application to set aside must be granted.
   

ORDER:

7. The judgment in default signed on 17 February 2020 is set aside.
8. The Writ of Fifae signed on 15 July 2020 is also set aside.
9. The applicant also asked for cost since the plaintiff did not observe Order 9 Rule 12, I do not entirely agree since they also defaulted in filing their defence. In the circumstances, there will be no order as to cost.
   

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice