Takirua v Attorney General [2024] KIHC 28; Miscellaneous Application 65 of 2023 (1 May 2024)

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

Miscellaneous Application 65 of 2023 arising out of High Court Civil Case 2 of 2023

BETWEEN	TOANI B. TAKIRUA Applicant
AND	ATTORNEY GENERAL iro THE REPUBLIC OF KIRIBATI Respondent

Hearing:	23 April 2024
Appearances:	Mr Natan Brechtefeld for the Applicant Ms Fuatino Noa for the Respondent
Judgment:	1 May 2024

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JUDGMENT
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1. The Applicant is seeking leave of this court for an order for default judgment against the Respondent. This application is in accordance to Order 21 rule 2 and Order 23 rule 6 as well as order 29 rule 14 of the High Court Civil Procedure Rules 1964.
2. The writ of summons together with the statement of claim was filed by the Applicant who is the Plaintiff in the substantive case on 6 January 2023 and served on the Defendant Attorney General (Office of the Attorney General) on 18 January 2023. The Defendant (Attorney General) entered its memorandum of appearance on 26 January 2023 and its Statement of Defence on 13 February 2023.
3. The crust of the Applicant’s application is that the statement of defence was filed very late and a default judgment should be entered for the Plaintiff. The Defence countered this argument saying that they were within the required time under the Rules.
4. With the above procedural dates mentioned in number 2, it is clear that the last date to file the Defence’s statement of defence was 7 February and since the defence was filed on 13 February 2023, it was late by 4 days.
5. Ms Noa, in her submission supported by the affidavit of Ms Tawita, submitted the Miscellaneous Application form used by the Applicant was not in compliance with the Rules and the relevant provision of the Rules were not used. The provisions used in the Applicant’s application are rules 42 and 43.
6. Mr Brechtefeld, argued that what is more important is the substantive content of the application and that the relevant provisions could be corrected in his oral and written submissions.
7. After considering the oral and written submissions and the relevant Rules and evidence, it is evidence that the Applicant’s application (motion) and the relevant rules used are incorrect and had to correct them during the hearing which I accept but it is vital to always comply with our Rules and relevant provisions therein.
8. With respect to the delay of four days for the Defence/ Respondent to file its statement of defence, the delay is not substantial and that the statement of defence consist of important issues of law and facts to be considered.
9. In weighing where justice lies in this case, I find that granting the application for a default judgment will be significantly prejudicial to the Respondent/Defendant. I therefore decide to reject the application.
   
10. Orders of this court:

1. Application for leave to issue an order for default judgment is rejected;
2. In light of the circumstances of this application, parties to bear their own costs;

100. The parties should resolve issues relating to the order on directions and advise the court one week from the date of this judgment if they are ready for the hearing of the substantive case.

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MR ABUERA URUAABA,
COMMISSIONER OF THE HIGH COURT