Teinainano Urban Council v Tewera (trading as Grain Teribauri) [2019] KICA 2; Civil Appeal 1 of 2019 (21 August 2019)

IN THE KIRIBATI COURT OF APPEAL ] Civil Appeal No. 1 of 2019
CIVIL JURISDICTION ]
HELD AT BETIO ]
REPUBLIC OF KIRIBATI ]

BETWEEN TEINAINANO URBAN COUNCIL APPELLANT

AND TERIBAURI TEWERA
T/A GRAIN TERIBAURI RESPONDENT

Before: Blanchard JA

Handley JA

Heath JA

Counsel: Monoo Mweretaka for appellant

Kiata Kabure for respondent

Date of Hearing: 16 August 2019
Date of Judgment: 21 August 2019

JUDGMENT OF THE COURT

[1] The Teinainano Urban Council has sought leave to appeal out of time against a decision of Commissioner Eberi given on 20 August 2018 in which she entered judgment against it in favour of the respondent, Teribauri Tewera T/A Grain Teribauri, in the amount of $18,000.

[2] The respondent’s successful claim against the Council had alleged an unlawful revocation of its licensed bus services with consequential loss to the respondent. The Commissioner found that the power of revocation under s.11 of the Teinainano Urban Council (Business Licence) Bye-Laws 2011 had not been exercised by the Council but, rather, by its Transport Committee. It could only be lawfully exercised by the Council itself. Nor had the respondent been given adequate prior notice of the intention to suspend or revoke its licence and a reasonable opportunity to respond to such notice before such an action was taken.

[3] The Commissioner considered that consequential loss of $18,000 had been demonstrated and ordered the Council to pay that sum together with interest and costs.

[4] We announced at the end of the hearing that leave would be refused. We did so because there had been a delay until 19 July 2019 – nearly 10 months and so well outside the appeal period – before the present application was made. The explanation for the lengthy delay was unsatisfactory in that it is clear that the Council had in October 2018 been told that it needed to appeal but gave no instructions to its lawyer until the end of March 2019. Even then the application was not made promptly. In fact, it was at first made to the High Court which correctly found that it had no jurisdiction once the appeal period had expired: see r27 Court of Appeal Rules.

[5] Importantly also, in the meantime the respondent, in reliance on a judgment that was not subject to any appeal, had applied for and obtained a garnishee order against the Council’s bank and had been paid the judgment sum. The respondent would be prejudiced if its execution of judgment is set aside on appeal and it is required to repay the judgment sum.

[6] Leave to appeal is accordingly refused with costs of $250 to the respondent.

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Blanchard JA

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Handley JA

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Heath JA