[1979] KILR 30

HIGH COURT OF THE GILBERT ISLAND

Civil Appeal No 3 of 1979

NEI KAONO TEBIRIA

v

RIAUA KAUTU

(O'BRIEN QUINN C.J.)

Betio: 15th February 1979

Civil appeal - procedure - case heard in absence of defendant - Writ of Summons - no proof of service - all parties must be served - all parties must be present or represented - appeal allowed - re-trial ordered

The Magistrates' Court, Betio, believed the plaintiff that the Writ of Summons had been served on the defendant but that she had twice rejected it and tried the case in the absence of the defendant. On appeal it was shown that there was no proof that the Writ had been rejected and no proof that it had been served or that the defendant was ever notified that the hearing would take place.

HELD: (1) That it is essential, if justice is to be done, that all parties to a case must be before the Court or be represented or, if not present or represented, it must be proved to the Court that that party or those parties were served with a Writ or notice and, despite that, failed to attend;

(2) That the appeal be allowed and the case re-tried.

Both parties appeared in person.

O'BRIEN QUINN C.J.:-

This is an appeal by the Defendant in the Magistrates' Court at Betio, against the decision of that Court given in her absence on 8th December 1978.

2. It would appear that the Respondent made a claim in the Magistrates' Court, Betio, for the sum of $400 plus a fee of $3.50 in respect of the time and labour devoted by him in re-building the boat of the Appellant and for the materials bought by him for the boat.

3. The Respondent claimed that he had tried to serve the Writ of Summons on the Appellant twice but that she had rejected it.

4. The Magistrates' Court accepted the story of the Respondent and heard the case in the absence of the Appellant.

5. Unfortunately, the Magistrates had no proof before them that the Writ had been rejected and, on the appeal, the Respondent could not prove that he had served it or that it had been rejected.

6. It is essential that, if justice is to be done, both parties or, if there are more than two parties, all parties, must be before the Court or be represented or, if they are not present or represented, it must be shown to the Court that they were served with notice and, despite that, failed to attend. Only then may the Court properly try the case.

7. In this case, there was no proof by signature of the Appellant or by sworn evidence that she was ever notified that the hearing of the case would take place on a certain date and at a certain time. Accordingly, I must, in the interests of justice, set aside the Magistrates' Court decision of 8th December 1978 in this case and order that the case be retried.

8. I order that the Respondent/Plaintiff need not pay a further fee as he has already paid his fee of $3.50 and I order that the case be set down for re-trial as early as possible and that both parties be properly served with a Writ of Summons to attend on the proper date and at the correct time, and advised to bring all the evidence they have got, documentary and otherwise, as well as all available witnesses.

9. This appeal is, therefore, allowed, the decision in the Magistrates' Court set aside and the case ordered to be retried as early as possible.