Tebwatau v Atauea [2010] KIHC 62; Civil Appeal 11 of 2010 (10 June 2010)

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

High Court Civil Appeal 11 of 2010

BETWEEN:

AUATABU TEBWATAU
Appellant

AND:

RAWEAITINA ATAUEA
Respondent

For the Appellant: Ms Abunaba Takabwebwe
For the Respondent: Mr Raweita Beniata

Dates of Hearing: 10 June 2010

JUDGMENT
(Ex Tempore)

This appeal must succeed. The respondent, in the business of lending money, lent to the appellant $160.00 some time in 2006. Later, when only part of the loan had been repaid the respondent sued in this action for the balance with interest and charges. Later still another action (CN 332/09) was taken to enforce payment of the judgment sum awarded. The Single Magistrate had given judgment for the respondent for $1,156.25 and wrongly directed how it should be paid. When it was not paid the second proceedings (CN 332/09) were taken and the appellant has been in prison for debt since 3 October 2009. This should not have happened. The decision in CN 332/09 is quashed and the appellant must be released forthwith.

Not only that, the respondent at the time of the loan in 2006 could not have had a money lenders licence. There were no licences issued. Although the Act was passed in 1988 no Registrar of Moneylenders was appointed until the last few months. Only the Registrar could issue licences.

S.15 of the Act:

No contract for the repayment by a borrower of money lent after the commencement of this Act by an unlicensed moneylender shall be enforceable.

The respondent – in common with all those in the business of money lending – could not enforce repayment because in 2006 she was in business without a licence.

The appeal is allowed, the judgment of the Single Magistrate is quashed.

THE HON ROBIN MILLHOUSE QC
Chief Justice