Andrewartha v Attorney General [2010] KIHC 6; Civil Case 177 of 2008 (7 January 2010)

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

High Court Civil Case 177 of 2008

BETWEEN:

DEREK ANDREWARTHA T/A ONE STOP SHOP
PLAINTIFF

AND:

ATTORNEY GENERAL IRO COMMISSIONER OF POLICE
DEFENDANT

For the Plaintiff: Ms Botika Maitinnara
For the Defendant: Mr Monoo Mweretaka

Date of Hearing: 7 January 2010

MEMORANDUM

The plaintiff sent his agent Nei Tikoro Totiana to Teraina with a cargo of 150 cartons each containing 12 bottles of vodka at $25.00 each. No other cargo for Teraina.

N. Tikoro was issued, on payment of $400, with a floating licence. This licence allowed her to sell from a ship but not on shore. N. Tenaea, a customer – one with whom the plaintiff or his agent had had previous dealings and who was trusted – came on board, bought the cargo and paid $3,000 on account of a total of $9,600. It was arranged that N. Tengea would take delivery of the cargo from the Island guest house.

This was a sale and purchase completed on the ship with delivery on land. Permitted pursuant to the floating licence.

N. Tikoro made three trips to Teraina. The sale was on the first. By the second trip the police had seized the vodka from the customer. The agent refunded the $3,000 to the customer. What the police have done with the cargo is not yet in evidence. Pursuant to s.81 of the Ordinance they should be holding it.

N. Tikoro has been charged, on Teraina, with having sold liquor without a licence. The hearing has been adjourned. Accordingly the police should be holding the cargo.

The defence to the civil claim is that the plaintiff needed a separate licence pursuant to s.5 of the Liquor Ordinance and issued under Council by-laws. Mr Mweretaka could not produce a copy of the Teraina by-law. Told him I needed to see it and could not accept oral evidence of the contents from the Council clerk.

Mr Mweretaka has argued that because the plaintiff was selling liquor without a licence the police were entitled to seize the cargo.

THE HON ROBIN MILLHOUSE QC
Chief Justice