Development Bank of Kiribati v Boubou [2012] KIHC 20; Civil Appeal 20 of 2010 (6 July 2012)

IN THE HIGH COURT OF KIRIBATI
Held at Tabiteuea North

CIVIL APPEAL NO. 20 OF 2010

BETWEEN

DEVELOPMENT BANK OF KIRIBATI
APPELLANT

AND

BOUBOU, RIABEN, BAAKA
RESPONDENTS

Before: Hon Chief Justice Sir John Muria

25 May 2012

Ms Batiwate Itibita for Appellant
Ms Nancy Walker for Respondents

JUDGMENT

Muria CJ: The appellant appealed against the decision of the TabNorth Magistrates' Court in CN 34/09 and CN 79/09 on the following grounds:

1. The Magistrates' Court erred in law by failing to consider all evidence adduced but based its decision on the Respondents' evidence only, that is, "The Respondents claimed then that they were expecting a reply from Tabera (a DBK employee) in regards to clarification on the remaining outstanding balance/debt"; and
   
2. The Magistrates' Court erred in law by failing to consider the loan terms and conditions as prescribed under Sections 39 and 40(6), (7)(b) of DBK Act 1986 and Section 6(1) of the Bill of Sale Ordinance [Cap 4].
   

The appellant seeks to have the decisions of the Magistrates' Court in the two cases set aside and remit the matter to the Magistrates' Court for rehearing.

The Court's record shows that CN 79/09 was a continuation of CN 34/09. At the hearing on 17 April 2009, the TabNorth Magistrates' Court adjourned CN 34/09 to enable the Bank's representative to clarify the $800.00 payment made by the respondents to Taarita for the appellant in 1999. The case resumed in December 2009. Instead of continuing as CN 34/09, it was given the case number – CN 79/09 but a "continuation of hearing CN 34/09".

At the hearing in CN 79/09, Taarita who was the appellant's Agent in TabNorth confirmed receiving payment of $800.00 in May 1999 and that it was the last payment received from the respondents. The evidence was that after the payment of the $800.00, there was still outstanding $399.04. By February 2000, the amount outstanding was $578.27 and by June 2001 it had risen to $744.26. In January 2006 the outstanding amount was $2,770.32.

The Court record also shows that evidence was given by the Agent of letters of reminders sent to the respondents in February 2000, June 2001, July 2001 and January 2006. On 24 March 2009 the representatives of the appellant visited the respondents regarding their outstanding loan repayment. The Court record goes on to show the summary of the evidence of the Agent on the situation of the respondents' outstanding loan repayment as follows:

"The details of their loan is that their balance in 1996 is at the amount of $3,639.42; that is in January 1996 plus interest from that time (January 1996) to 25/11/09 thus the total amount of the interest is $3,942.02 plus the penalty at the amount of $2,425.58 plus extra charges at $209.39 plus repayment withdrawn at the amount of $396 all total up to $10,612.41.

It is then subtracted with the deposit which is $500.00 and also subtracted with their total amount of repayment which is $4,380.44 and that added up to $4,880.44 but their current balance this time is at $5,731.97. If you need documents for that then here is their statement. This amount will increase every month.

We request the transfer of those securities so that it can clear this outstanding".

The Court minutes concretely show that there was abundant evidence to establish the appellant's case that the respondents had an outstanding loan repayment to the appellant. That amount, by 2009, when the matter came to Court, stood at $5,731.97.

On the other hand the evidence of the respondents was very much one of an apologetic and being inattentive to their loan obligation.

Riaben Koraing's evidence was that they did not intend "not to pay it in full" but they believed that they needed the reply to their letter from the appellant. When cross examined by Taarita and questioned by the Court, both Riaben and Boubou confirmed being reminded of their outstanding loan repayment in 2008, but complained that it had been a long time and could not remember or replied as:

"Q. Do you have a book where you record your disbursement?

A. We have a record with us but it had been in trouble (or lost??)"

Yet the Court simply considered the letter from the respondents to which a reply was yet to come from the appellant and rejected the appellant's case. Had the Magistrates' Court properly assessed the evidence, not only from the respondents but also from the appellant, the Court could have come to the obvious conclusion that the application by the appellant to enforce the loan repayment ought to succeed.

Ms Walker vehemently argued that the Magistrates' Court heard evidence from both sides and considered all the evidence before coming to its decision. While the Magistrates' Court heard evidence from both sides to the case, it seems clear to this Court that there was very little or no proper assessment of the evidence at all. The evidence given on behalf of the appellant bank was overwhelming, yet not a stint of consideration was given to it by the Magistrates' Court. Had the Magistrates' Court done so, there was overwhelming evidence to support the application by the appellant for enforcement of the loan granted to the respondents.

As to the argument that only Boubou, not Riaben and Baaka, is responsible for the loan, this Court does not accept that argument. The evidence shows that all the respondents are part of the Tematantan Group to which the loan was given. Although the loan agreement was signed by Boubou Temamang, he did so for the Group for their Fishing Project. The Tematantan Group appeared to be an unregistered and a non-corporate body. It has no separate legal personality. Each of the members of the Group is therefore jointly and severally liable for the repayment of the loan. This is an elementary principle of law with regard to an unincorporated body.

Each of the named respondents are severally and personally liable for the repayment of the loan in this case. Further, to secure the loan Boubou Temamang and Bamaere Tekibwebwe gave their lands as security for "our loan from the Development Bank". The Magistrates' Court had approved to have the lands concerned, namely, Teruamaikarawa Plot No. 330-26 2 acres and Teraereke Plot No. 608-5 2N. See CN 3/94 and CN 56/94 for the said purpose.

Reading the Court record, the minutes and evidence, I accept the submission by Ms Itibita that the Magistrates' Court failed to properly consider all the evidence before the Court and terms and conditions of the loan as highlighted in the evidence before the Court. These are errors of law which clearly justify interfering with the decision of the Court below.

The decision of the Magistrates' Court in CN 34/09 and CN 79/09 cannot stand and must go. The appeal is allowed and the Magistrates' Court's decision is hereby set aside.

The Court is mindful of the fact that this is a long outstanding case and remitting it to the Magistrates' Court will further delay the resolution of this case.

Provided there is basis for doing so, this Court can give judgment or make order which ought to have been made by the Court below. This power is contained in section 72(1) of the Magistrates' Court Ordinance which provides:

"72(1) In any civil appeal under this Part the High Court shall have power to draw any inference of fact and to give any judgment or make any order which ought to have been made and to make such further or other order as the case may require".

In this case, there is clearly sufficient, if not overwhelming evidence, before the Court to exercise its power under section 72(1) of the Magistrates' Court Ordinance and I do so, in this case.

I give judgment for the appellant and grant its application to enforce the loan given to the respondents. The appellant is entitled to exercise its rights under the legal charge taken over the properties concerned, Teruamaikarawa 330-26 (2 acres) located at TabNorth and Teraereke 608-5 2N at TabNorth to enforce repayments of the loan issued to the respondents.

ORDER OF THE COURT

1. Appeal is allowed;
   
2. The appellant's application in CN 34/09 and CN 79/09 to enforce the loan given to the respondents is granted;
   
3. The appellant is entitled to exercise its rights under the legal charges taken over the properties concerned, namely, Teruamaikarawa 330-26 (2 acres), TabNorth and Teraereke 608-52 N, TabNorth to enforce repayments of the loan issued to the respondents.
   

Dated the 6th day of July 2012

SIR JOHN MURIA
Chief Justice