Tekaai v Tio [2006] KIHC 133; 52-05 (23 June 2006)

IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case No. 52 of 2005

Between:

IOANNA TEKAAI
Plaintiff

And:

AROBETE TIO
Defendant

For the Plaintiff: Ms Botika Maitinnara
For the Defendant: Mr Banuera Berina

Date of Hearing: 21 June 2006

JUDGMENT

The only one who seems to have come out of this transaction well is the late Nei Katia Mak. She had the bus for the whole of its working life and did not pay anyone anything for it.

In 1997 Rabunataai Tekaai, the late husband of the plaintiff, Nei Ioanna Tekaai, wanted to buy a mini bus. He made an arrangement with the defendant, Arobete Tio, to import one from Japan. He paid a total of $6,700 which they sent overseas. The bus arrived in Tarawa. Rabunataai did not have the money to pay customs and other duties for it to be released from the wharf: he was waiting to get the money from his wife when she came home from Tonga. Storage fees were about to run. Arobete became anxious: the import was in his name: he feared he would be personally liable. He spoke to Rabunataai:-

Discussed with Rabunataai whether he required bus or not? Told me to look for someone to buy bus. Agreed I was to look for someone to buy bus. Nei Katia came to see me. I had paid personally maybe $4,000+ to have bus released. Katia had the bus and used it but she did not pay me anything. I am out of pocket $4,000 myself. Katia died: bus no longer running.

Rabunataai not being able to find the money Arobete used his own money to have the bus released from the wharf. At the same time Nei Katia had come to Arobete for help in importing a bus. Instead, she took the one ordered for Rabunataai. Despite her promise she paid neither Rabunataai nor Arobete.

Rabunataai died in July 2001. Earlier that year - this is Nei Ioanna’s evidence: Arobete admits the incident but cannot say when it was - Nei Ioanna and Rabunataai went to see Arobete. They asked again for the money they had paid. Arobete is vague, indeed contradictory as to what he told them:-

I informed them money not with me but they will get money. I never said they’d get their money back.

I could not find on that evidence that Arobete gave even an oral acknowledgement of debt or an undertaking to repay the plaintiff and her husband.

After nine years the evidence is sketchy but on the balance of probabilities Arobete was an agent for Rabunataai in the importation: Arobete had the implied authority of Rabunataai to find another buyer for the bus when Rabunataai did not take it: Arobete was never the owner of the bus nor did he have the $6,700 nor has he benefited in any way from the transaction.

Mr Berina had two defences.

First he submitted that his client was merely Rabunataai’s agent in the transaction. Arobete never became the owner of the bus: he made nothing from the transaction: indeed he was out of pocket over it: the person who had been liable is the late Nei Katia.

Secondly and quite decisively: the transaction was in 1997 - nine years ago. The cause of action accrued some time in that year. The Writ was issued in June 2005: well outside the six year limit for actions on contract provided by section 4 of the Limitation Act. At first I was concerned that time had begun to run again in 2001 when the plaintiff and her husband had the conversation with Arobete. I was wrong. It is not a renewed demand by a plaintiff but an acknowledgement of liability by a defendant which is significant: see section 22(5) and (6) of the Act and generally 24 Halsbury, 3rd edition at pages 297 et seq. I cannot find on the evidence that this defendant acknowledged any liability. The action is out of time.

Both defences succeed.

There will be judgment for the defendant.

Dated the 23rd day of June 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice