Anauea v Attorney General [2009] KIHC 39; Civil Case 60 of 2009 (1 October 2009)

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

HIGH COURT CIVIL CASE 60 OF 2009

BETWEEN:

TANOATA ANAUEA
PLAINTIFF

AND:

ATTORNEY GENERAL IRO MINISTRY OF EDUCATION
DEFENDANT

For the Plaintiff:Mr Banuera Berina
For the Defendant:Mr Birimaka Tekanene

Date of Hearing: 1 October 2009

JUDGMENT

The plaintiff claims from the defendant for past overtime amounting to $190,149.26. The facts are agreed:-

1. The Plaintiff Tanoata Anauea was employed as a Warden for Meleangi Tabai Secondary School in Fanning Island from 1992. He had to work overtime but no overtime allowance was paid to him.
   
2. On 26th November 2008, the Defendant, through the Public Service Office advised the Ministry of Finance that despite length of time the Plaintiff had been allowed to claim for abnormal and overtime allowances for the period 1992 to 2000. The Plaintiff accordingly made his claim.
   
3. In April, 2009 the Defendant paid the Plaintiff the sum of $5,024.85 being the sum payable as his overtime allowance for the period 1992 to 2006. The Plaintiff claims he should be paid more than he was paid in overtime allowance.
   
4. In its defence the Defendant avers, amongst other things, that as the Plaintiff was paid abnormal allowance he should only be paid time and half in overtime allowance (paragraph 8 of Defence) and that the claim is statute barred (paragraph 13 of Defence).
   
5. The Plaintiff concedes he should be paid overtime allowance at the rate of time and half even for work done on Sundays and on public holidays. The only issue remaining therefore is whether or not his claim is statute barred.
   

Counsel have asked me to determine only whether the claim is statute barred.

By paying $5,024.85 the defendant implicitly acknowledged the debt. By acknowledging the debt the defendant allowed time to run afresh.

There is a useful summary of the law in 24 Halsbury 297 et seq especially at paragraphs 590 and 591:-

590. Actions to recover debts and legacies.
     

Where any right of action has accrued to recover any debt ..... and the person liable or accountable therefor acknowledges the claim or makes any payment in respect thereof, the right is deemed to have accrued on and not before the date of the acknowledgment or last payment.

591. In a case where the effect of the expiration of the prescribed period of limitation is merely to bar the remedy and not the right, an acknowledgment or part payment may cause a right of action to accrue afresh, even though the acknowledgment or payment is made after the prescribed period of limitation has expired.
     

Section 4(1) of the Limitation Act merely bars the remedy and not the right:-

"The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued ..... actions founded on simple contract".

The action is not statute barred.

THE HON ROBIN MILLHOUSE QC
Chief Justice