Tekabeia v Korere [2016] KICA 10; Civil Appeal 6 of 2016 (17 August 2016)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Civil Appeal No. 6 of 2016

BETWEEN

NNAKINA TEKABEIA
APPELLANT

AND

BEETA KORERE
RESPONDENT

Before:
Blanchard JA
Handley JA
Hansen JA

Counsel:
Elsie Karakaua for appellant
Kiata Kabure for respondent

Date of Hearing: 12 August 2016
Date of Judgment: 17 August 2016

JUDGMENT OF THE COURT

Introduction
[1] The appellant claimed in the Magistrates’ Court to recover from the respondent $1,196.00, the outstanding balance of a loan of $2,000.00 she had made to the respondent. She succeeded in obtaining judgment for $908.00 plus Court fees of $15.00, a total of $923.00.

[2] On appeal by the respondent to the High Court Muria CJ found the Single Magistrate who heard the claim to have erred. He remitted the case to the Magistrates’ Court “to properly hear and determine the balance of the amount” payable by the respondent to the appellant.

[3] The appellant appeals against the decision of the High Court.

The Magistrate’s Decision
[4] In the Magistrates’ Court the appellant claimed for the “repayment of the amount of $1,196.00 + $15.00 = $1,211.00”. The appellant (who was unrepresented) said in evidence she had loaned the respondent $2,000.00. She said the respondent had repaid a total of $1,092.00. Cross-examined by the respondent (also self-represented) she rejected the proposition that the outstanding balance was only $170.00. She produced diary entries recording the repayments.

[5] The respondent also gave evidence. She produced her own record of repayments made which she said the appellant had accepted when she visited her.

[6] After summarising the evidence the Single Magistrate found as follows:

“However, the question is whose record should be conceived, the defendant or the plaintiff.

This Court satisfactorily accepts the plaintiff’s explanation about the defendant’s repayment, which he had only paid the amount of $1,092.00 in total.

Since the defendant borrowed $2,000 only from the plaintiff he should pay the plaintiff the amount of $908.00 plus Court fee $15 = 923.00”.

Appeal to the High Court
[7] On appeal to the High Court the respondent’s counsel argued that the Single Magistrate had unfairly exercised his discretion in preferring the evidence of the appellant (plaintiff). She referred to diary entries annexed to an affidavit sworn by the respondent (defendant) in support of the appeal as supporting her claim to have repaid all but $170.00 of the loan.

[8] The respondent’s evidence was disputed by the appellant in an answering affidavit. She said that the diary entries had not been referred to in the Magistrates’ Court where the respondent had produced a single piece of paper in support of her case.

[9] In his judgment Muria CJ identified three reasons why the judgment of the Magistrates’ Court could not stand. All derived from the way in which the appellant’s claim had been formulated in the summons, as noted above, for the “repayment of the amount of $1,196.00 + $15.00 = $1,211.00”. First, the Chief Justice said, the claim was stated to be for a sum of money, not for the outstanding balance of a loan of $2,000.00. Secondly, the sum claimed by the appellant differed from the amount she sought to recover. He said it was, in principle, wrong for the appellant to be given that which she did not ask for. Thirdly, the Chief Justice said that, as the litigants were self-represented, when the evidence was shown to be ‘not compatible’ with the claim, the Single Magistrate should have intervened to assist the appellant to amend the case. He said the Court ‘cannot take on the task [of] making the case for the plaintiff based on the evidence given to the Court’.

This Appeal
[10] In our view no unfairness or illegality followed from the way the claim was formulated. It was not necessary for the appellant to articulate in the summons that the amount claimed was the outstanding balance of a loan. It was sufficient for her to simply state the amount she wished to recover. In any event, it is not suggested that the respondent did not understand the basis for the claim. It is of no consequence that the appellant’s claim exceeded the amount she ultimately sought to recover. That can occur, and commonly does, for any number of reasons. As long as the defendant is not prejudiced – which is not suggested in this case – it is no impediment to recovery. Nor, to address the Chief Justice’s third concern, does it call for an amendment to the claim.

[11] In the High Court and before us it was submitted on behalf of the respondent that the Single Magistrate had wrongly exercised his discretion in preferring the evidence of the appellant to that of the respondent. We do not accept that. His decision did not involve the exercise of a discretion. The sole issue he was required to determine was an issue of fact: the amount the respondent had repaid. The onus of proving payment was on the respondent: Young v Queensland Trustees Ltd [1956] 99 CLR 560. He failed to discharge it. Faced with conflicting accounts of what was repaid the Single Magistrate was entitled to accept the evidence of the appellant and reject the respondent’s version of events. He has not been shown to have erred.

Result
[12] The appeal is allowed. The decision of the High Court is quashed and the judgment of the Magistrates’ Court restored. The respondent must pay costs in this Court and in the High Court which we fix in the total sum of $500, together with any disbursements to be fixed by the Registrar if not agreed.

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Blanchard JA

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Handley JA

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Hansen JA