Taratieru v Ueen [2008] KIHC 14; Civil Case 68 of 2007 (7 May 2008)

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

High Court Civil Case 68 of 2007

Between:

Mackenzie Taratieru T/A Pacific and Occidental (KI) Limited
Plaintiff

And:

Maraiti Ueen
Defendant

For the Plaintiff: Ms Taoing Taoaba
For the Defendant: Ms Jane Fiske

Date of Hearing: 6 May 2008

JUDGMENT

Mackenzie Taratieru engaged Maraiti Ueen as what has been called a "floating agent" to sell cigarettes to stores on outer islands. Maraiti went to three islands. His visit to Abaiang gives rise to this action.

On 22 June 2006 before he went to Abaiang, Maraiti and Mackenzie signed a document "Salesman Record" (Exhibit P1):-

Full Name:	Maraiti Ueen
Address:	Bikenibeu, Tarawa
Shipment:	Boat
Destination of Trip:	Abaiang

Description of goods been taken out from the Warehouse

25 sleeves of Peter Jackson selling @ $31.00 per sleeve

40 sleeves of Alpine in selling @ $33.50 per sleeve

Valued of the goods in total AUD$2,115.00 for Peter Jackson & Alpine Cigs.

I MARAITI UEEN agree to the following conditions.

To pay Pacific & Occidental (KI) Ltd the total amount of AUD$4,800.

In the event of lost by theft, fire or damage to the cargo during the trip, I (Maraiti Ueen) agree to pay back the full amount of money to Pacific & Occidental (KI) Ltd in replacement of the stock that has been lost or damage.

All goods remain the property of Pacific & Occidental (KI) Ltd at all times.

Ms Taoaba tendered the document through Nei Tebwea Uriam. Nei Tebwea is employed by Mackenzie who is in Tuvalu.

Maraiti gave evidence. He acknowledged having signed Exhibit P1 before he went to Abaiang and that he has not paid the $4,800. He claimed to have returned the goods to Mackenzie but agreed there are no records.

I was not much impressed by Maraiti. I accept his evidence that he signed the document before going to Abaiang and has not paid the $4,800. From his evidence I am in doubt about whatever happened to the goods. Nei Tabwea said she heard Maraiti tell Mackenzie he had left them on Abaiang.

Ms Fiske submitted that Maraiti had signed the document Exhibit P1 without knowing what it meant. There was no suggestion that he did not know either in the cross examination of Nei Tebwea (who was present when he signed) nor in Maraiti’s affidavit nor in his oral evidence. I do not accept Ms Fiske’s submission.

It comes down to Exhibit P1. Maraiti took the goods. They remain the plaintiff’s property. I can make no finding as to what happened to them. Maraiti agreed to pay AUD$4,800. He has not paid.

The defendant cannot escape liability.

There will be judgment for the plaintiff for $4,800.

Dated the 7th day of May 2008

THE HON ROBIN MILLHOUSE QC
Chief Justice