Merang v Falaile [2008] KIHC 4; Civil Case 98 of 2007 (24 January 2008)

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

High Court Civil Case 98 of 2007

Between:

Tapetulu Merang
Plaintiff

And:

Mantea Falaile
Defendant

For the Plaintiff: Mr Raweita Beniata
For the Defendant: Mr Karotu Tiba

Date of Hearing: 23 January 2008

JUDGMENT

It must have been the middle of 2006 that the plaintiff and defendant made the arrangement. The plaintiff was to buy from the defendant a house at Taborio for $60,000 or $70,000 (the plaintiff could not give a precise figure). He went to the Bank for a loan and paid over in all $20,000. Exhibited are four cash cheques dated 27-9-06, 9-10-06, 16-10-06 and 7/11/06. They total $20,000. The plaintiff, who was the only witness in the case, swore that he handed three of these cheques to the defendant and the fourth to the defendant and her husband. He did not get receipts. The cheques were cashed. Despite Mr Tiba’s cross examination I accept the plaintiff’s evidence. Beyond the balance of probabilities the defendant received from the plaintiff $20,000:-

They were to give me title: house incomplete: I was to complete it: rent it out and I’d pay them wit the rent.

That never happened. For reasons and under what conditions unknown the defendant has allowed Taotin Trading to occupy the house: Taotin is using it as a bulk store.

The terms of the contract for sale and purchase were vague but it is possible to find that there was a contract. Whatever the terms it is certain that consideration for the payment of $20,000 has failed. The plaintiff is entitled to have his money back.

The Statement of Claim was issued on 7th June 2007. A Defence was filed on 1st August. At least from the middle of September the case has been ready for hearing. Hearing has been delayed while Mr Tiba has tried to get instructions from his client who has gone to New Zealand. On 30th November I set the case as a standby for last week, the week beginning Monday 14th January and gave it priority listing for today, Wednesday 23rd January. The hearing was warned for Tuesday 15th January. On that day Mr Tiba still had no instructions. I gave him one last chance to obtain them and made it clear that the hearing would proceed today, 23rd January, whether he had instructions or not. It is not fair on the plaintiff to make him wait indefinitely.

From the Defence and Mr Tiba’s cross examination of the plaintiff it seems the defendant would have given a quite different version of the facts. The plaintiff denied the suggestions put to him in cross examination: there is no evidence to support the allegations in the Defence. I accept the plaintiff’s evidence: he gave a believable account of what happened.

There will be judgment for the plaintiff for $20,000.

The plaintiff is paying interest on the loan he has from the Bank, a loan he took out to pay the $20,000. He did not say what rate of interest he is paying. The judgment will carry interest from the date of the issue of the Writ. I shall not be able to fix the rate until either I have heard evidence or counsel have been able to agree the rate of interest the plaintiff is paying.

Dated the 24th day of January 2008

THE HON ROBIN MILLHOUSE QC
Chief Justice