Nubono v Attorney General iro Commissioner of Police [2006] KIHC 16; Civil Case 13 of 2005 (18 January 2006)

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

High Court Civil Case No. 13 of 2005

Between:

BAORO NUBONO
Plaintiff

And:

ATTORNEY GENERAL IRO
COMMISSIONER OF POLICE
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Mr David Lambourne, Solicitor General

Date of Hearing: 18 January 2006

JUDGMENT

The plaintiff is suing the Attorney General in respect of the Commissioner of Police for $4,050 which he claims the Police owe him as the balance of his daily allowance while he was on Kiritimati Island waiting to be called as a witness. He was necessary to the prosecution and the Police made all arrangements for him to get from Tarawa to Kiritimati and return. He was on Kiritimati from 21 November 2003 until 17 March 2004. The Police paid him the astonishingly high living allowance of $150 per day. Letter of 25 October 2004 from Superintendent Kamaua Tirae to Mr Banuera Berina, the plaintiff’s lawyer (admitted by consent):-

It is true that your client was on Kiritimati for a few months as a prosecution witness and we paid him a daily allowance of $150.00 per day in accordance with the National Conditions of Service.

$150 per day was fixed in the belief, mistaken or otherwise, that $150 per day was the appropriate rate to pay the plaintiff.

The plaintiff works in Betio for the Kiribati Oil Company as a gate check. His pay is $300 per month. While on Kiritimati he did the same work for KOIL there. He had his usual salary which went to his family on Tarawa.

The Police paid the plaintiff at the rate of $150 per day until their money ran out a little less than a month before he left Kiritimati. It was the plaintiff himself who in evidence said, “no more money available from Tarawa”. This is the only part of the plaintiff’s evidence which I can with confidence accept.

The shipping service between Kiritimati and Tarawa is irregular. There is a ship every three months or so. The plaintiff necessarily had to spend a long time on Kiritimati. On 25 February Sgt Tewatana Merang (for OCS Ronton Police Station) wrote to the plaintiff:-

“Mr Baoro Nubono

c/o: Koil

Kiritimati

To: Nubono

Re: Criminal Case No. Bet 886/02 – PC Eketi Tokarake

I inform you that your complaint against PC Eketi is to be heard on Tarawa. This is owing to the inability of ships to come and pick up the witnesses to Kiritimati.

Owing to that I remind you in this letter to board the MV Matangare and return to Tarawa. Your subsistence allowances shall cease once the vessel leaves here. Your transportation to the wharf/jetty is also our responsibility.

Many apologies for the delay which is beyond our capability.

Yours faithfully

(Signed) Tewatana Merang (Sgt 204)

For OCS”

The plaintiff asserted that he stayed at Big Eddie’s Fishing Lodge at Main Camp. What proportion of nights he slept there is not clear. He gave it as one-quarter and later as three-quarters. Certain it is that he produced invoices/receipts shewing him paying $150 a day for every day of his time on Kiritimati, being charged for accommodation, meals and laundry. Main Camp is many kilometres from Ronton – 30 minutes or more by vehicle. I wondered why a man working for KOIL near Ronton would stay so far away. The plaintiff said it was because he knew the proprietor, Mr Eddie Corrie. I could not find even on the balance of probabilities that the invoices/receipts shewed genuinely how much he paid at Big Eddie’s or how long he stayed there.

The plaintiff was an unimpressive witness. The Solicitor General used the word “sly” to describe him. That is not much too harsh. I do not place any reliance on his evidence as to how many days he spent at Big Eddie’s or how much he paid there.

Indeed I am puzzled as to why the invoices/receipts were produced at all. The plaintiff was paid a daily allowance and did not have to vouch for his expenses. The rate of allowance was not related to actual expenses. Supt Tirae’s letter shews that. Perhaps the plaintiff thought it necessary to produce them to justify payment of the balance of his allowance at $150 per day from the last payment until he left Kiritimati.

The invoices/receipts are not relevant to a decision, given the view I have formed of the law.

Although the pleadings are not so drawn counsel had agreed before the hearing that the claim is in equity. I accept it is.

The plaintiff relies on that letter of 25 February in which the Police made it clear that the subsistence allowance would continue until the plaintiff was on board MV Matangare to come back to Tarawa. Are the police now estopped from denying their obligation to pay?

The Solicitor General argued vigorously that it would be quite inequitable to pay the money. The plaintiff did not come with clean hands for the invoices/receipts were fraudulent: he had already had a huge windfall (comparing his normal pay with the daily allowance): he could shew no detriment. Equitable relief is discretionary and I should not exercise discretion in favour of the plaintiff.

To guide me on the law I have used Dr Spry’s work “The Principles of Equitable Remedies” (5th edition).

The learned author (at p. 182) refers to the judgment of Brennan J in Waltons Stores (Interstate) Limited v Maher and Another (164 CLR 382 @ 428-9). The High Court was considering contract but the principles are the same:

In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.

The uncontested facts are sufficient for the plaintiff (irrespective of the poor opinion I formed of him) to establish all these requirements except (5). I am doubtful about that. I cannot see how the plaintiff acted to his detriment. He had no alternative but to remain on Kiritimati until the ship came. He had already been paid most generously and was working as well.

Yet even if I were able to find detriment I must still exercise a discretion. Should I in all the circumstances of this case exercise it in favour of the plaintiff?

It is a very bad thing for the police (or anyone else) to give an undertaking such as in the letter of 25 February and then to go back on it. On the other hand the plaintiff has had a huge windfall already. The daily allowance was, I suggest, much more than was appropriate to his circumstances and whether it turned out to be necessary to his case or not, he did put before the Court documents which were probably fraudulent. In putting them forward he has dirtied his hands even though the documents were not relevant. So his hands are not clean. The plaintiff does not deserve any more. He has already done very well.

I should not exercise my discretion in favour of the plaintiff. His claim is dismissed.

Dated the day of January 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice