Kiribati Supplies Company Ltd v Nangka [2003] KIHC 161; Civil Case 12 of 2002 (3 December 2003)

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

High Court Civil Case 12 of 2002

Between:

KIRIBATI SUPPLIES COMPANY LTD
Plaintiff

And:

TETAEKA NANGKA
Defendant

For the Plaintiff: Mr Banuera Berina
for the Defendant: Ms Taoing Taoaba

Date of Hearing: 3 December 2003

JUDGMENT

The defendant was in charge of Kiritimati Island operations for the plaintiff. In July 2001 the plaintiff let the defendant know that he was to be demoted and transferred to Tarawa.

The parties, at the start of the hearing, agreed on a Statement of Facts. The relevant parts are:

"The Plaintiff is a government owned company. The Defendant was an employee of the plaintiff.

In the year 2000 the Defendant was employed as Branch Supervisor in Kiritimati Island. The terms and the conditions of service are set out in the Terms and Conditions of Service of the Plaintiff company.

Clause 21.01(iii) read as follows:

"A baggage allowance shall be granted to an employee for transportation of personal effects when an employee is proceeding by sea on permanent or temporary transfer to or from an outer island."

By letter dated 5^th July 2001 the Defendant was advised that he was being demoted to verification officer L11-10 and was further advised that he was being transferred to Tarawa.

On 30 and 31 July 2001 he raised two payment vouchers, PV C218/01 payable to Supercargo MV Matangare for the sum of $6,000.00 and PV C223/01 for the sum of $4,400 payable to Stevedore Kiritimati, Linnix. Instead of paying the money to those named as payees in the payment vouchers Defendant collected the payment himself on 30 and 31 July 2001.

On 3 August 2001 he sent his letter of resignation to the Plaintiff.

The Plaintiff demanded payment of the $10400 collected by the Defendant by letter dated 16 November 2001.

On 20 November 2001 the Defendant responded saying he was eligible to receive the payment."

In court it was further agreed that the defendant has remained living on Kiritimati.

The defendant gave evidence. He said that he paid, out of the $10400, something over $7,000 to the stevedores and to the shipping company. He kept and has spent some or all of the rest. The payment of the $7000 plus was for the fares to Tarawa of members of his extended family (his wife and children stayed with him) and for:

building materials

salted fish

coconuts

"personal belongings" packed in boxes – pieces of carbon, brass materials, iron bars and other things the defendant cannot remember.

During cross-examination, Mr Berina put him a number company documents, a local purchase order, a debit note, two payment vouchers amounting to $10400.

The defendant was unable to produce any receipts for the $7000 which he said he had paid and the debit note has a blank space for "Receipt No" and "Dated". He said the receipts were lost. He acknowledged that the receipts should have been kept with the other documents in the company records.

Three points arise from the defendant's evidence. First I doubt that he ever paid to the stevedores or shipping company $7000 or any amount. On the balance of the probabilities find that he did not.

Secondly, the fares for relatives are not "a baggage allowance ... for transportation of personal effects". The defendant was not entitled to use any company money to pay these fares.

Third, none of the thing he said he sent back fall within the definition of "personal effects". Personal effects are clothing, household furniture and the like: things for one's own domestic use (see the definition of "personal effects" in Stroud's Judicial Dictionary (4 ed, vol 4) citing Re Seton-Smith [1902] UKLawRpCh 58; (1902) 1 Ch 717, 1900-1903 All ER Reprint 144)

On those three points I am against the defendant.

Decisively against the defendant is Clause 21.01.(iii) " a baggage allowance shall be granted ........ for transportation of personal effects when an employee is proceeding .......on permanent or temporary transfer ...." The defendant did not proceed on transfer at all. He resigned and has stayed on Kiritimati. He did not fulfil the requirement which entitled him to claim a baggage allowance. He was not entitled to it.

There will be judgment for the plaintiff for $10400.00.

Dated the 8^th day of December 2003.

THE HON ROBIN MILLHOUSE QC
Chief Justice