Attorney General v Kiboi [2021] KICA 3; Civil Appeal 3 of 2021 (25 November 2021)

IN THE KIRIBATI COURT OF APPEAL CIVIL JURISDICTION HELD AT BETIO REPUBLIC OF KIRIBATI		Civil Appeal No.3 of 2021
BETWEEN	ATTORNEY-GENERAL IRO MINISTRY OF LINE AND PHOENIX ISLANDS DEVELOPMENT	APPELLANT
AND	RITER\ KIBOI	RESPONDENT
Hearing:	24 November 2021
Before:	Blanchard JA Hansen JA Heath JA
Counsel:	Mr M Mweretaka for Appellant Mr B Berina for Respondent
Judgment:	25 November 2021

JUDGMENT OF THE COURT

[1] The respondent, Mr Kiboi, was a Senior Land Surveyor on Kiritimati Island. The Ministry of Line and Phoenix Islands Development was his employer and provided him with a house for himself and his family. In 2013 the house was totally destroyed in a fire. In that fire he lost personal property which he has valued at a total of $58,725.00.

[2] He claimed damages aiieging breach of the Ministry's contractual obligation to ensure that the house provided to him was safe and free from risks such as fire caused by electrical faults. At the trial in the High Court, Muria CJ found that the house was old and in need of proper maintenance of its electrical wiring. In 2011 the house had experienced electrical lightening or sparks caused by live naked wires. The technician sent by the Ministry to remedy the problem had fixed it only temporariiy and never returned to the house to complete the necessary remedial work as he was supposed to do:

39. By providing the plaintiff a hoesing which was seriously exposed to electrical risks associated with its efectrica; wiring system was a breach of the defendants contractual duty to provide the plaintiff with housing that was safe and free from riqks of fire. find that the plaintiff has succeeded in showing, on the balance of probability, that the defendant has breached its contracte;ai duty cl providing safe housing to him and

his family. In all probability, I find on the evidence that the fire which burnt the plaintiff's house in this case was very likely to have been caused and did cause by faulty electrical wiring which exposed the house to serious fire risks.

[3] The appellant has not appealed against this finding of liability.
[4] The judgment dealt with damages only briefly as follows:

40. With regard to damages, I agree with Mr Berina that the amount claimed by the plaintiff does not seem to be much of a dispute about it. The plaintiff's claim is for the amount of $58,725.00. The Court therefore awards the plaintiff the sum of $58,725.00
41. The plaintiff also claims general damages for inconvenience suffered. There is evidence before the Court that the plaintiff had suffered, not only loss, but inconvenience as a result of the incident. The principles to be applied when granting general damages in a case of this nature have been well established in the cases decided by the Courts in Kiribati. I feel the plaintiff is entitled to general damages. I grant general damages to the plaintiff in the sum of $5,000.00.

[5] The Chief Justice also awarded the respondent interest at 6 percent per annum on the judgment sum and his costs of the action to be taxed if not agreed.
[6] The Ministry does not appeal against the award of general damages but contends on this appeal that the award of $58,725.00 is "manifestly excessive" and that there was a dispute about it. It says that the High Court simply accepted the amount claimed without considering whether there was evidence to prove it; that it should have asked for documentary evidence to quantify and prove the value of each item claimed to have been lost in the fire. Its says the respondent did not "prove and quantify" the quantum of his claim. The appellant asks this Court to quash the award and refer the question of quantum back to the High Court for assessment of "a proper award".
[7] Little attention was paid to the question of quantum during the trial. The respondent had pleaded the loss of his "property and chattels" and that the value of the items destroyed was $58,725.00. He had attached to his Statement of Claim a detailed inventory of "Particulars of Loss". For example, and we take these examples at random from the inventory, he claimed for two transformers at $590.00 each, a 40hp outboard motor engine at $5,500.00, four single beds and mattresses at $550.00 each and two double beds and mattresses at $760.00 each.
[8] The respondent gave only brief oral evidence but tendered to the Court two affidavits th'at he had sworn. These constituted the major part of his evidence. In one of his affidavits, he said that the items lost had a value of $58,725.00 and he attached the same Particulars of Loss. He was not cross-examined about the particulars. There seems to have been no challenge to the quantum of his claim. It is therefore unsurprising that the Chief Justice concluded that it was not disputed.
[9] In these circumstances, it is not open to the Ministry to say that there was a dispute about quantum. All it can point to in the material before the Court is a Police Report on the fire dated 29 May 2014 in which there is the bare statement that "the lost properties were valued up to an estimate amount of $20,725" and that this amount was "measured depending on the value of each property". No particulars were given in the Police Report. It was certainly not put to the respondent that this was a more accurate assessment of his loss. There is nothing else in the evidence contradicting the respondent's particulars of loss.
[10] The manner in which and the degree to which the quantum of a claim needs to be proved necessarily differs depending on the nature of the claim and the extent to which the quantum is actually challenged by the defendant. In this case, the respondent as plaintiff had detailed his valuations of the various household items and the Ministry chose not to put him to any greater proof. Therefore, what the respondent put forward was quite sufficient to prove his claim in the circumstances. If the defendant wanted to dispute the values of the items, it needed to call evidence to that effect. It did not do so.
[11] The appeal is therefore misconceived and must be dismissed with costs and disbursements to be fixed by the Registrar if not agreed.

Blanchard JA

Hansen JA

Heath JA