Tarawa Importers and Exporters Trade v Kai Wan Importers and Exporters Trading Co [2010] KIHC 122; High Court Civil Case 164 of 2009 (4 November 2010)

In the High Court of Kiribati
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 164 of 2009

Between:

Teresia Binataake t/a Tarawa
Importers and Exporters Trade
Plaintiff

And:

Sammy Lau (Lau Chi Lam) t/a
Kai Wan Importers & Exporters
Trading Co.
Defendant

For the Plaintiff: Mr Mantaia Kaongotao
For the Defendant: Mr Banuera Berina

Dates of Hearing: 3 & 4 November 2010

JUDGMENT

The plaintiff in this action is a lady who, with the help of her husband, in 2008 and 2009, was running a business of exporting marine products. The defendant (and plaintiff by counter claim) is a businessman from Hong Kong who was in Kiribati and in a business relationship with the plaintiff and her husband. I have not been able to come to any conclusion as to the real nature of the relationship. The plaintiff was advised by Fisheries that a foreigner, as the defendant is, may not be a partner in a business in Kiribati without various permissions. The defendant did not have them. To get over the problem the parties attempted to change the nature of the relationship so that the plaintiff became the principal in the business and the defendant her agent. The change was meant to be reflected in differences between two agreements, the first (Exhibit D1) of 1 May 2008 and the second (Exhibit P1) of 5 June 2009.

Whatever the true relationship between the parties may have been, the plaintiff is suing the defendant for payment of two shipments claimed to have been sent to the defendant in Hong Kong and for various items of equipment which the plaintiff claims are hers but were taken by the defendant.

I have not been able, even on the merest balance of probabilities, to come to any conclusion. For this reason: I can place no reliance on the evidence of the plaintiff and her husband, the only witnesses on their side and neither the defendant nor anyone else gave evidence on the other.

I was not impressed by Mr Ruka Tearo, the plaintiff's husband and less so by the plaintiff herself, Mrs Teresia Binataake. A number of documents are exhibits. Several of them bear the plaintiff's signature. That signature is the same on each. Yet when she thought it suited her, the plaintiff denied the signature was hers. She did not dispute her seven signatures on "Advance Shipment Agreement" and that the defendant had made advances amounting to $59,000 nor on her signature on the "Invoice (2nd Shipment)" of 03/07/09 (Exhibit P5), yet denied it on several others (Exhibits D3 and D4), saying "It looks like my signature – don't believe it's mine".

Exhibit D3:

To: Immigration Department

Attn: Principal Immigration Officer

From: Teretia Binataake

Tarawa Export & Import Store

Re: Urgent Request Transfer my Business Advisor to Telau Trading

1. Chu Lam Lau b. Fujie Lu c. Wanfu Huang d. Yiqing Liang
   

Date: 23 June 2009

Dear Sir,

May I take this opportunity say thank you very much for your very good service.

As my husband always disturb my business advisor and many time he got drunk and beat my business advisor. Just last week Saturday on 20 June 2009. My husband beat Mr Lau and hurt him.

To be avoid my husband in disturbing my business advisor and also secure their safety. I humbly request that you allow and help my business advisor transfer to Telau Trading as soon as possible.

Thank you for your kind assistance.

Best regards

(Sgd) Teretia Binataake

Tarawa Export & Import Store

Exhibit D4:

Date: 22nd June 2009

With effective on 22nd June 2009, Kai Wan Importers & Exporters Trading Co. no longer doing any Business with Ms Teretia Binataake.

In addition, Kai Wan Importers & Exporters Trading Co. never owes any money from Ms Teretia Binataake during the business operation.

Kai Wan Importers & Exporters	Tarawa Import & Export Store
Trading Co.
(Sgd) Sammy C L Lau	(Sgd) Ms Teretia Binataake

[I may say I am not sure if this letter means the defendant owes nothing for the plaintiff or vice versa: the use of the preposition "from" makes the meaning ambiguous.]

Even more difficult to believe is her denial in relation to the agreement (Exhibit P1) of 5 June 2009. The signatures of both plaintiff and defendant are expressed to be witnessed by Mr George Mackenzie "Office of People's Lawyer". I know that in June last year Mr Mackenzie was attached to the People's Lawyer's Office.

Beyond doubt all the plaintiff's signatures are genuine: none is a forgery.

The plaintiff's denials as to her signature are more than sufficient to discredit all her evidence. There are other things as well and her general demeanor but there is no reason to go into them. The result is I can place no reliance on her evidence.

As for Mr Tearo he was not so forthright as his wife in denying her signature but said he was "not sure" if it were his wife's signature on Exhibit P1. It is her signature and he must know it. This is enough to make me doubt his evidence, too.

Neither witness gave evidence to support the claim in relation to various chattels.

The result is that there is no credible evidence to support the plaintiff's claim and no evidence at all to support the counter claim. [Mr Berina abandoned it in his final submissions].

This is one of those quite rare cases in which I can make no finding either way. That being so both claim and counter claim are dismissed.

Dated the 8th day of November 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice