Kabiri v Tunee [1997] KIHC 69; HCLA 012.94 (1 October 1997)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCLA 12/94

BETWEEN:

EREKITE KABIRI
Appellant

AND:

NEI MOTI TUNEE
Respondent

Mr T Teiwaki for Appellants
Mr B Berina for Respondent

Date of Hearing: 25 September 1997

JUDGMENT

This is an appeal against the decision of the South Tarawa Magistrates' Court (Lands) in case no. 18/94. The case had been remitted by the High Court in its decision in HCLA 259/89 for the magistrates' court to determine the issues of compensation to the respondent Nei Moti Tunee for improving the appellant's land, and reasonal rent to the appellant Erekite Kabiri for the period in which the respondent had used the land without payment of rent.

The respondent subsequently brought a claim in the magistrates' court for the return of $2,000 lent to the appellant plus compensation of $1,000. At the hearing, the appellant claimed $900 from the respondent, being rent at $100 per year for 9 years.

The magistrates, without giving any reasons as to how their verdict was made up, ordered the respondent to pay $25 to the appellant and ordered the appellant to pay $600 to the respondent. The appellant appeals that decision on the ground that it was against the weight of evidence in respect of both awards.

Counsel for the appellant argues that the High Court remitted the matter on the issues of compensation and rent and that the magistrates' court exceeded those directions by allowing the respondent to claim for debt as well. We do not agree with that submission. There was nothing in the High Court judgment which prevented the parties raising other claims in the magistrates' court apart from compensation and rent.

However, we do agree with the submission that there was no evidence given in the lower court which was capable of supporting the respondent's claim for compensation. The respondent may or may not have made improvements to the appellant's land, but there was simply no evidence in that regard.

However, the evidence of the respondent in the lower court was that she had lent the appellant a total of $780.00. As already mentioned, the magistrates gave no reasons for their decision but since there was no evidence given by the respondent of any improvements made by her, it stands to reason that the magistrates must have accepted the respondent's evidence about the loan in ordering the appellant to pay her $600. However, having accepted the respondent's evidence on that issue, we cannot understand why the magistrates only allowed $600 instead of the $780 claimed.

Nevertheless, the magistrates appear to have overlooked the fact that the respondent had been allowed to occupy the appellant's land for approximately 8 years without paying rent. The respondent told the lower court that she had occupied the appellant's land because he owed her money. Prior to the respondent being evicted in 1993 this was apparently an arrangement suitable to both parties. The appellant did not repay his debt and the respondent did not pay any rent. Both parties have therefore had the benefit of that agreement. We therefore think that the magistrates' court was wrong in ordering the appellant to repay $600 to the respondent.

For the same reason, we think that the magistrates' court erred in ordering the respondent to pay $25 rent to the appellant.

The appeal is therefore allowed and the decision of the magistrates' court is set aside. In lieu thereof:

(i) in respect of the respondent's claim for debt and compensation, there will be judgment for the appellant and the claim is dismissed;

(ii) in respect of the appellant's claim for rent, there will be judgment for the respondent and the claim is dismissed.

THE HON R B LUSSICK
Chief Justice
( /10/97)

TEKAIE TENANORA
Magistrate
( /10/97)

BETERO KAITANGARE
Magistrate
( /10/97)