Abaiang Island Council v Iotebwa [2023] KIHC 54; Civil Case 50 of 2019 (3 May 2023)

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

High Court Civil Case 50 of 2019

BETWEEN	ABAIANG ISLAND COUNCIL Applicant
AND	TIEBANE IOTEBWA Respondent

Appearances:	Deputy Solicitor General, Mr Monoo Mweretaka, for the Applicant Ms Taaira Timeon, for the Respondent
Date of sentence:	3 May 2023

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JUDGMENT
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1. This is the Applicant’s application for leave to apply for judicial review in respect of the default judgment entered against the Applicant. It was brought under Order 61, rule 2 of the High Court Civil Procedure Rules.
2. After considering the application and supporting affidavits, it is very clear that the core reason for the application is based on the denial of service of the Respondent’s writ of summons upon the Applicant’s Council’s clerk.
3. Mr Mweretaka in his oral submission supported by his written submission and affidavits strongly opposed and denied the evidence of service of the writ by one Nei Kai Aron. The Applicant simply wants to have their day in court to argue further on this point thus seeking leave of this court as required under the Rules.
4. Ms Timeon, for the Respondent strongly opposed the application basing her argument on the fact that the fieri facias order has been executed.
5. In Mr Mweretaka’s submission, it is worth to note part of the judgment in Jones v National Coal Board [1957] 2 AB 55 at 67 stating,
   

“...there is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge... No case is lost until the judge has found it so: and he cannot find it without a fair trial...”

6. In addition to the above quoted part of the judgment in the Jones case, it is also important that parties comply to the rules of procedures set out by the court in addition to the vital aspect of having justice considered during a trial. However, it is worth to account the submission by the Applicant for leave to raise an important issue with respect to service of the writ of summons upon the Applicant.
7. It is therefore the decision of this court to grant leave to the Applicant to file a proper application for review 7 days from the date of this judgment.
   

Orders of this court:

1. Application for leave is granted to the Applicant to bring its review application within 7 days of this judgment;
2. Costs is awarded against the Applicant to be taxed if not agreed.

Dated 12^th May 2023

MR ABUERA URUAABA,
COMMISSIONER OF THE HIGH COURT