Development Bank of Kiribati v Tamuera [2004] KIHC 251; Civil Appeal 17 of 2004 (5 November 2004)

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

High Court Civil Appeal 17 of 2004

Between:

DEVELOPMENT BANK OF KIRIBATI
Appellant

And:

TEIBIROA TAMUERA
TAMUERA ATUERU
Respondents

For the Appellant: Ms Batitea Tekanito
For the 1st Respondent: Ms Taoing Taoaba
No Appearance by the 2nd Respondent

Date of Hearing: 3 November 2004

JUDGMENT

In September 2003 the appellant, the Development Bank of Kiribati, sued a father and son, the first and second respondents, over a debt for $800. The DBK had lent the money in November 1995 for the purchase of a freezer unit. By the time the proceedings were taken the amount owing, according to the DBK, had grown with interest to $2,934.57.

Even though the debt had been incurred nearly eight years before, pursuant to section 49 of the DBK Act, the action for recovery was not statute barred. I came to that conclusion, regretfully, in DBK v Ieremia Tooma (HC Civil Review 1 of 2001) delivered on 11th January 2002.

[I notice that section 4(1) of the Limitation Act assented to by His Excellency the Beretitenti on 9th September 2004 provides a general period of limitation of six years for “actions founded on simple contract or on tort”. There appears to be no saving of section 49 of the DBK Act which therefore will fall, being impliedly repealed by the new Act. Fortunately for the appellant, pursuant to section 37(4)(a) of the New Limitation Act, the time limit of six years does not affect the present action.]

The main point at issue between appellant and first respondent, Teibiroa, is Teibiroa’s age. In the notes of evidence Teibiroa is reported as saying, “I was only about 18 years at the time”. The Single Magistrate in his well reasoned judgment relied on this assertion as evidence that Teibiroa was, in November 1995, a minor, under 21, the age at which he could enter into a contract. So he may have been but Teibiroa had the onus of proving his age strictly.

Chitty on Contracts – General Principles 25th edition @ para 531:

The incapacity of one or more of the contracting parties may defeat an otherwise valid contract. Prima facie, however, the law presumes that everyone has a capacity to contract; so that, where exemption from liability to fulfil an obligation is claimed by reason of want of capacity, this fact must be strictly established on the part of the person who claims the exemption.

It was for Teibiroa to prove his age strictly most desirably (but this may not be the only way) by producing a copy of his birth certificate. Unless his age were proved strictly the Single Magistrate should not have relied on Teibiroa’s assertion in coming to his decision.

Each of Ms Tekanito, representing the appellant and Ms Taoaba for the second respondent asserts she has a birth certificate relating to Teibiroa. I understand the certificates do not agree. Which, if either, is Teibiroa’s correct birth certificate may have to be decided after hearing evidence.

The only other point taken by Ms Tekanito was that the Single Magistrate did not give the representative of the DBK an opportunity to cross examine the respondents. The transcript of evidence does not shew clearly one way or the other whether the opportunity was given. Of course, an opportunity should have been given to cross examine: the procedure to be followed is set out in Part III of the Magistrates’ Court Rules section 19.

Because of the dispute over age and the uncertainty about cross examination the fairest course is to allow the appeal, and send the case back to the Single Magistrate to be heard again in accordance with these reasons.

The appeal is allowed, the decision of the Single Magistrate quashed and the case returned to the Magistrates’ Court for rehearing.

Dated the 5th day of November 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice