Kiribati Shipping Services Ltd. v Kiribati Copra Cooperative Society [2007] KIHC 106; Civil Case 110 of 2006 (8 May 2007)

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

High Court Civil Case 110 of 2006

Between:

KIRIBATI SHIPPING SERVICES LIMITED
Plaintiff

And:

KIRIBATI COPRA COOPERATIVE SOCIETY
Defendant

For the Plaintiff: Ms Taoing Taoaba
For the Defendant: Ms Botika Maitinnara

Dates of Hearing: 7 & 8 May 2007

MEMORANDUM

I should explain how judgment came to be entered in this action.

KSSL claimed $198,697.89 from the Copra Board "for unpaid freight and handling of copra ..... from outer islands to Tarawa". The Defence was a denial that the defendant owed anything: there was no counter-claim or set-off.

According to KSSL the debt had been accruing from 1997. The Copra Board had been paying only $5 per ton for the transport of copra from the outer islands whereas the charge invoiced was $15.50 per ton. There had been ongoing discussions over the years between the parties but no agreement. Since some time last year the Copra Board has been paying the full amount of $15.50.

Mr Tetangare Teinai, KSSL Finance Manager, gave evidence. It became clear from his evidence that only the amount owing was in dispute, not liability and the amount due was the addition of all the outstanding invoices. Most invoices shew a charge of $15.50 per ton but I noticed one was for less. Mr Teinai agreed that was a clerical error. I told him that he was stuck with the amount shewn on each invoice. It was a matter of making calculations, adding up the invoices, to work out how much the Copra Society owed KSSL.

There were a mass of invoices. In larger jurisdictions a judge might refer the task of calculation to a subordinate officer of the Court such as a Master. That is not practicable in Kiribati. Either I would have made the calculations myself or the parties must (I expected by their joint efforts) agree on a figure.

I put all this to counsel. After discussion I was satisfied that both counsel agreed totaling the invoices would allow us to find the correct amount owing. I had no doubt that both sides had agreed, first that the plaintiff was entitled to the sum of the invoices and second that the parties would work together – I assumed amicably – to work out the figure.

They asked for several days to do the work. I gave them until this morning.

When I called the case on this morning I found that both sides had gone away and had made separate calculations on which they did not agree. They had not worked together. Ms Taoaba did not have a figure at all. Ms Maitinnara had $84,952.52 for handling (the plaintiffs claim). They had not agreed on a figure. I tried not to shew annoyance and gave the parties until this afternoon to come up with one.

At 2 o’clock after some bumbling at the Bar table Ms Taoaba said that Ms Maitinnara had the figure. Ms Maitinnara gave me the figure she had given this morning, $84,952.52, the amount due for handling. Ms Taoaba agreed to it. I was about to enter judgment for the plaintiff for $84,952.52 when I asked if this included interests and costs. Ms Maitinnara at this moment appeared to resile from the agreement reached yesterday that the plaintiff was entitled to the sum of the invoices. Ms Maitinnara said that her client had, over the years, overpaid KSSL: the plaintiff was entitled to nothing.

A lawyer’s word –given either in open court or privately – should be her (or his) bond. Otherwise her (or his) reputation is worth nothing. The Court, clients and everyone must be able to rely on a lawyer’s word. It is not acceptable to agree to something one day and go back on the agreement the next. A lawyer should be held to an agreement made in open court or anywhere else. I held Ms Maitinnara to the agreement she made yesterday.

I am afraid I became quite annoyed and shewed it. Whatever his (or her) private feelings a judge should never lose control of his (or her) temper. I now greatly regret that I did lose control and apologize to Counsel.

Finally I gave the plaintiff judgment – which, as I pointed out to Ms Taoaba, covers all the heads of claim in the Statement of Claim – for $84,952.52 and added a nominal amount of $1,000 for interest and ordered that the plaintiff should have its costs.

Dated the 8th day of May 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice