Tamton v Teboota [2011] KIHC 23; Civil Appeal 40 of 2010 (1 July 2011)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION

Republic of Kiribati
Held at Betio

High Court Civil Appeal 40 of 2010

Between:

Kambeia Tamton
Appellant

And:

Nei Tebou Teboota
Respondent

BEFORE: THE HON SIR JOHN MURIA CJ

Mr Banuera Berina for the Appellant
Ms Elsie Karakaua for the Respondent

Date of Hearing: 1 July 2011

JUDGMENT

Muria CJ: This appeal arose out of a refusal by a Single Magistrate to hear a suit brought by the appellant against the respondent at the Magistrates' Court in South Tarawa. The Single Magistrate held that the cause of action arose in Christmas Island and as such he declined jurisdiction to hear the matter.

The case before the Magistrates' Court

The claim before the Magistrates' Court was brought by the appellant against the respondent for an outstanding debt of $644.20 plus $10.00 Court fee, total $654.20.

At the brief hearing before the Single Magistrate sitting at Bairiki Magistrates' Court, South Tarawa, the respondent did not accept the claim and stated that the debt was incurred in Christmas Island. Consequently the Single Magistrate determined that he had no jurisdiction to hear the claim and said that the case must be heard in Christmas Island.

The Magistrate relied on paragraph 1(b) of Schedule 1 to the Magistrates' Court Ordinance (Cap 52) to support his decision. Paragraph 1(b) of Schedule 1 provides:

1. Each magistrates' court shall have jurisdiction to entertain, hear, try, determine and otherwise deal with –
   

(b) any personal suit, whether arising from contract or from tort, or both, in which the defendant is ordinarily resident within the jurisdiction of such court or in which the cause or action arose in such jurisdiction and where the value of the property debt or damage claimed (whether as a balance or account or otherwise) is under $3,000.

Both Mr Berina of Counsel for the appellant and Ms Karakaua of Counsel for the respondent relied on the above provision.

The Parties' Case

For the appellant, Mr Berina submitted that the Single Magistrate was wrong in law to decline jurisdiction to hear the appellant's claim on the basis that it should be heard in Christmas Island. Counsel raised two interesting arguments in support of the appellant's case.

First, Mr Berina contended that the case being a personal debt the cause of action arose in Tarawa where the defendant (respondent) failed or refused to pay his debt to the plaintiff (appellant). The thrush of Counsel's argument is that jurisdiction was founded at the place (South Tarawa) where the demand and refusal to pay the debt occurred and not exclusive to the place (Christmas Island) where the debt was actually incurred.

Ms Karakaua for the respondent submitted that the contract was made at Christmas Island where the respondent obtained goods on credit from the appellant's store. As such Counsel submitted, the cause of action arose in Christmas Island.

The appellant's second argument is that the respondent, at the time the demand was made for him to pay the debt, he was "ordinarily resident" in South Tarawa and as such Magistrates' Court in South Tarawa had jurisdiction to deal with the matter. Mr Berina submitted that under this test of "ordinarily resident", the appellant's claim ought to have been dealt with by the Magistrates' Court in South Tarawa. The Magistrate was wrong to decline jurisdiction.

Ms Karakaua, on the other hand, submitted that the respondent was "ordinarily resident" in Christmas Island. Her affidavit shows that the respondent was born in South Tarawa on 18 June 1951. Two years later she moved to Kuria with her grandfather. Sometime later she moved back to South Tarawa after her grandfather died. She got married and lived at Eita, South Tarawa. In 1971 she and her husband left South Tarawa and went to Christmas Island where in 1972 they obtained a plot of land and built their permanent home on it. After her husband died in 1993, the respondent and their eight children continued to live in Christmas Island. In 2006 the respondent and her second husband (Teboota Tenanoa) came to South Tarawa for the purpose of sorting out disputes over their land. All their children remain in Christmas Island. The respondent will return to Christmas Island after sorting out her land cases. She has not built any house, but only stay with her sister, while she is here in South Tarawa since she has no intention of staying in South Tarawa permanently.

On those facts, Ms Karakaua submitted that the respondent is "ordinarily resident" of Christmas Island. Thus Counsel submitted, the respondent is ordinarily resident within the jurisdiction of the Magistrates' Court in Christmas Island, and not South Tarawa.

Determination

The first point argued by the appellant raises the question as whether the cause of action can arise and so confer jurisdiction on the Magistrates' Court in Kiribati in a civil case on the basis of the place where demand and failure to pay a debt is made irrespective of where the debt was incurred. The argument by Mr Berina is that although the debt was incurred at Christmas Island, the cause of action must be taken to have arisen in South Tarawa where the appellant demanded the payment of the debt and the respondent failed to pay the same.

While the argument just posed seems attractive, it loses sight of the starting point, namely, that the plaintiff entered into a contract with the defendant and parted with his goods on the undertaking that she (defendant) would pay for t hem. The loss to the plaintiff occurred at that early stage at Christmas Island. Should the plaintiff, or any plaintiff for that matter, have to wait until he meets the debtor and demands payment and debtor refuses payment before he can commence action against the defaulting debtor? Why should a plaintiff have to wait for such an eventuality before he can have a cause of action to proceed against a defaulting debtor? It would not be right, in my view, to accede to the argument advanced by Counsel, attractive though it may be.

The cause of action in my judgment in this case, arose at Christmas Island when the appellant entered into the transaction with the respondent whereupon the appellant parted with his goods to the respondent on credit.

The second point concerns the resident status of the defendant/respondent. The evidence in this case demonstrates that the respondent is resident in South Tarawa as well as in Christmas Island. However, "ordinarily resident" is something more than just being resident of a place. It means a person's abode in a place with some assumption of permanence, some degree of continuity and according to the way a person's life is usually ordered. Lord Scarman puts it this way in R -v- Barnet London Borough Council ex parte Shah [1983] 2 WLR 16:

"I unhesitatingly subscribe to the view that 'ordinarily resident' refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being whether short or long duration".

Shah's case was applied in R –v- Eastleigh Borough Council Ex parte Betts [1983] UKHC 9; [1982] 2 AC 613; [1983] 2 All ER 111, the case referred to by Ms Karakaua of Counsel for the respondent.

On the facts as disclosed in the present case, the Court can safely conclude that the defendant's ordinarily resident of Christmas Island.

This brings us to the final point in this appeal, the jurisdiction of the Magistrates' Court to hear the appellant's claim. The starting point in a search for the jurisdiction of the Magistrates' Court in Kiribati is section 4(1) of the Magistrates' Court Ordinance which provides:

4(1) Subject to any express provisions of this or any other Ordinance, every magistrates' court shall exercise jurisdiction within the limits of the district within which it is situated.

There is no Magistrates' Court in Kiribati that exercises jurisdiction throughout Kiribati. Every Magistrates' Court in Kiribati exercises jurisdiction within its territorial limits as provided by the above provision. Thus the jurisdiction and powers of the Magistrates' Court as provided under section 23 of the Magistrates' Court Ordinance must be exercised within their territorial limits. The Schedule 1 referred to by Counsel in their arguments, thus sets out specifically that each Magistrates' Court shall have jurisdiction to entertain, hear, try, determine and otherwise deal with any personal suit arising from contract or tort or both in which the defendant is "ordinarily resident within the jurisdiction of such court", which in this case is the Magistrates' Court in Christmas Island. In this case, it is also the place where the cause of action arose.

Conclusion and Order

The result is that the appeal is dismissed. The Single Magistrate's decision is affirmed. Costs to respondent.

ORDER: Appeal dismissed with costs to respondent to be taxed if not agreed.

Dated the 29th day of July 2011

SIR JOHN MURIA
Chief Justice