Tito v Telecom Services Kiribati Ltd [2005] KIHC 68; 77-04 (9 June 2005)

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

High Court Civil Case No. 77 of 2004

Between:

EUROBWA TITO
Plaintiff

And:

TELECOM SERVICES KIRIBATI LTD
Respondent

For the Plaintiff: Ms Jennifer Troup
For the Respondent: Mr Katarake Tebweao

Dates of Hearing: 2 June & 7 June 2005

JUDGMENT

Claim by a customer for overpayment of a telephone account and counterclaim against him by the defendant TSKL, the provider of telephone services in Kiribati, for other monies owing.

The plaintiff has run for some years a business at Temaiku known as “Lucky Seven”. Previously he was a policeman and served in the Crime Branch. In his final address Mr Tebweao described the plaintiff as “a smart guy”. I replied that being “a smart guy” did not mean he is dishonest. Indeed I found the plaintiff a credible witness and his evidence was not controverted.

On the 10^th July 2000 the plaintiff, Eurobwa, gave Toatu Taanea (whom he described as a relative but who described himself as working for the plaintiff) a blank cheque in favour of TSKL. With the cheque Eurobwa gave Toatu two invoices, both dated 30^th June 2000, one for $13 and the other for $39.82. Toatu was to take the cheque to TSKL to pay the bills. Instead of adding up the two and putting $52.82 on the cheque, Eurobwa left that to be written in either by Toatu or by TSKL. Toatu went to TSKL, gave its officer the cheque and came back with a receipt for $891.47. TSKL had filled in that amount on the cheque. Toatu said, “Boss angry”. No wonder! Instead of $52.82 he had paid $891.47. Eurobwa wanted TSKL to give back the difference between the total of the two invoices and the amount TSKL received, $838.65. TSKL refused.

TSKL has an unusual method of collecting monies owing by customers. Invoices are prepared. A radio announcement is made informing customers that their bills are now available for collection from TSKL offices. A customer is expected to collect his or her bill and pay it. When the bill is collected a customer signs an acknowledgment that the bill has been received. If the bill is not paid (or some arrangement made for future payment) within three months the telephone is cut off.

Eurobwa has sworn that, apart from the two invoices amounting to $52.85, he never did receive any invoices for a total of $891.47. Nor had his phone ever been cut off in the period covered by the copy invoices (Exhibit D1) 31^st January 1999 and 31^st May 2000. He denied that he owed the extra $838.65 which TSKL had taken by inserting $891.47 on his blank cheque: he had paid all he owed to TSKL. He claims a return of $838.65 with interest.

TSKL has counterclaimed $1,262.50 for a period some time later, between 28^th May 2001 and 31^st August 2002: copy invoices supporting the counterclaim are Exhibit D4.

Eurobwa admits that he made payments between May 2001 and August 2002 and that his phone had been cut off during that time (shewing he had been in arrears) but he denied having received any of the invoices adding up to $1,262.50 and further denied owing any of $1,262.50.

If Eurobwa had received the invoices it should have been easy for TSKL to shew it. All TSKL had to do was to produce the acknowledgment which Eurobwa would have signed on receiving each invoice. TSKL could not. From the evidence of the two ladies who gave evidence, Nei Rairaki Ioane, the Legal Officer in the Accounts Section and Nei Rereao Taratiera, Billing Supervisor, the records of acknowledgment have all been lost.

Mr Tebweao could not point to any presumption, either statutory or otherwise, to the effect that a customer has received his or her bill from TSKL.

TSKL has not been able to shew that Eurobwa received any of the invoices relevant either to the claim or to the counterclaim. Eurobwa has denied receiving them. I could not find that he did.

TSKL was not able to shew how much, if anything, Eurobwa owed for services provided in the periods covered by the two sets of invoices, D1 and D4. He denied owing TSKL anything. He made no admissions and was a credible witness not shaken in cross-examination. I find on the balance of probabilities neither that he received the invoices nor that he owed the moneys.

It follows that TSKL wrongfully inserted $891.47 on Eurobwa’s cheque: only $52.82 should have been put in because only $52.82 has been shewn to have been owing at the 10^th July 2000. Likewise TSKL has failed on the balance of probabilities to prove how much of the counterclaim, if any part of it, Eurobwa knew about or owed.

There will be judgment for the plaintiff on the claim and counterclaim.

The plaintiff has claimed interest at the outrageous rate of 10% per month. The plaintiff should have something for being out of his money for the last five years but not anything like 10% per month. An appropriate rate is 5% per annum. I allow $200.00 for interest.

There will be judgment for the plaintiff on the claim for $1,038.65 including interest. The counterclaim is dismissed. The plaintiff is entitled to costs on both claim and counterclaim.

Dated the 9^th day of June 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice