Ribono Villagers v Abaiang Island Council [2003] KIHC 84; Civil Appeal 13 of 1997 (9 July 2003)

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

High Court Civil Appeal 13 of 1997

Between:

RIBONO VILLAGERS
Appellant

And:

ABAIANG ISLAND COUNCIL
Respondent

For the Appellant: Ms Jacqueline Huston
For the Respondent: Mr Tion Nabau and Mr Daniel Gorman

Date of Hearing: 7 & 9 July 2003

JUDGMENT

Appeal from the decision of a Single Magistrate sitting in the Abaiang Magistrates' Court.

In 1993 Abaiang Island was the host to 'te bwabwaro' (workshop) for Chief Councillors, Unimanes and Clerks from throughout Kiribati. There were more than 60 visitors. Although it appears it was not known when the Island Council was making preparations for the visit, the Government provided money to the Council, calculated on the daily charge at the guest house for the total number of guests for all the nights the guests were on Abaiang.

Following the custom on Abaiang the visitors went first to Ribono village. They stayed for two days and were accommodated in the maneaba and entertained.

In 1995 the village, represented by Tauia Timi, claimed from the Island Council $2,780 "compensation for accommodating participants of the seminar at their maneaba for two nights".

The Single Magistrate heard the witnesses for each side and dismissed the claim on 18 December 1995. The nub is at the end of his reasons:-

As it was proved by this Court that there was money allocated for the accommodation for the members of the meeting on Abaiang especially at the Hotel as it has been proved that they stayed at the Hotel. The accommodation for staying at Ribono would have been obtained if it was paid during that time. Nevertheless, and it was never paid and then that non payment is caused the present inconveniences. The inconveniences which are seen by this Court is related to Custom. It is understood that visiting Ribono by the members of the meeting was in accordance with custom and Ribono accepted their visit. Therefore the way the Ribono villagers treated them as guests and for looking after the members of the meeting at their maneaba was a way of being generous as required according to Custom and it cannot be that the customary way of receiving people as guests on Abaiang requires payment.

And for this reason the claim is not allowed since it is contrary to Abaiang custom and it is a good custom and it is not against the law.

Two issues at the hearing of the appeal.

The first: the appeal was not instituted until 5 September 1997, nearly two years out of time. The appellant applied for an extension of time and Mr Tion Nabau, for the Council, opposed it.

Within a few days of the judgment Tauia came to South Tarawa and consulted the People's Lawyer. He believed he had filed an appeal here at the High Court. In fact no appeal was filed: nor could it be, as the correct procedure is to file an appeal with the Clerk of the Magistrates' Court in which the judgment has been given.

The mistake (or misunderstanding) was not realised until 1997. When it was, this appeal was instituted.

Mr Daniel Gorman who appeared for the Council on the second occasion the appeal was called on, neither in his written nor in his oral submissions, could point to any particular prejudice to the Council if the time were extended.

I am satisfied of a genuine mistake - Tauia believed he had filed the appeal within a few days of the judgment – and that the Council suffered no particular prejudice. I therefore allowed an extension of time within which to appeal to 6 September 1997.

The second issue was the substantive one: did Ribono village have a claim in law against the Island Council for a share in the money paid to the Council by the Government?

The questions of whether a village is an entity which can sue and be sued and whether Tauia Timi had authority to take proceedings on behalf of the village, were not argued. Mr Gorman mentioned them in his written submissions but no more. I leave them to one side assuming that the proceedings were in order.

The Single Magistrate based his decision on island custom. Mr Gorman argued that the Single Magistrate was entitled to take judicial notice of it and, at my prompting, pointed to passages in the evidence to the effect that Ribono village by custom entertained visitors and does not expect payment. This from the evidence of a witness for the defendant, Burangke Kaibwakia, "65 old man":-

Court:

Q: During your time of presidency at the Council was there any visit been occurred similar to this one now to Abaiang?

A: There was.

Q: And they also visited Ribono as well?

A: They slept as well.

Q: What were those visits?

A: Visits of Ministers, and some civil servants.

Q: And they also slept in Ribono?

A: Yes in the Maneaba.

Q: And Ribono also claimed for their accommodations?

A: No.

Q: As you are now one of the old men, is it proper for Ribono to claim for being visited?

A: No as it would bring shamefulness upon Ribono.

Q: Was there a meeting held between old men and Ribono as a whole prior to the visit?

A: There was.

Q: Was there any idea being raised that visitors should pay to for their staying?

A: None.

Ms Huston, for the Ribono village, referred to several passages of evidence from other witnesses to the contrary.

As a rule a court of appeal is unwilling to upset a finding of fact provided it is supported by evidence. The court of first instance, the Single Magistrate in this case, has seen and heard and assessed the witnesses. Unless it has made some obvious mistake, such as a finding unsupported by evidence, a court of appeal does not upset findings of fact made by a court at first instance.

The Single Magistrate was justified in his finding of fact as to custom on Abaiang both because he was entitled to take judicial notice of island custom and because there was evidence on which to base that finding.

It did not matter at all that there was evidence to the contrary: the magistrate preferred the evidence for the defendant.

Had the village been able to establish some contract between it and the Island Council then the decision should have been to the contrary. The village could shew no contract, no legal obligation on the Council to pay anything to the village.

From what I know of the facts, the Council may well have had a moral obligation to make a payment but a moral obligation is not enforceable at law. It is a pity the Council has not made an ex gratia payment. No court can force it to do that.

All that being so, there is no point in my trying to assess the amount of money to which the village would have been entitled. It does not have an entitlement to any.

The appeal is dismissed.

Dated the day of July 2003

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE