Waysang Kum Kee v Nabaekeke [2013] KIHC 24; Civil Case 18-11 (25 June 2013)

IN THE HIGH COURT OF KIRIBATI 2013

CIVIL APPEAL NO. 18 OF 2011

BETWEEN

WAYSANG KUM KEE
APPELLANT

AND

[ITAMAERI NABAEKEKE
1ST RESPONDENT

[PUNJAS KIRIBATI LTD
2ND RESPONDENT

Before: Hon Chief Justice Sir John Muria

25 June 2013

Ms Batitea Tekanito for Appellant
Mr Iotita Kuarawete for 1st Respondent
Ms Botika Maitinnara for 2nd Respondent

JUDGMENT

Muria CJ: By his Notice of Appeal dated 13 June 2011 and amended grounds of appeal filed on 12 February 2013, the appellant seeks to overturn the decision of the Magistrates' Court made on 16 May 2011 in the Magistrates' Court case No. 313/08. There are three grounds of appeal, namely:

(a) The Single Magistrate erred in law in making an order for liability of the third party to plaintiff when there was no order liability of defendant to the plaintiff;

(b) The Magistrate erred in law to put third party liable in the amount of $1,428 when the initial claim sought against the defendant was only $700;

(c) The Magistrate erred in law to hear the matter when the action was barred by terms of the bill of lading.

At the hearing, Ms Tekanito of Counsel for the appellant decided to pursue only ground (b). The appeal is therefore confined to the issue of whether the Magistrates' Court was correct to order the sum of $1,428.00 against the appellant.

The background circumstances to the appeal as revealed in arguments before the Court were that in Case No. 313/08 the plaintiff (now first respondent) sued the defendant (now second respondent) in the Magistrates' Court for goods ordered, paid for but not delivered. The sum claimed was $700.00 plus Court fee of $15.00 plus $150.00 costs. The Magistrates' Court gave judgment for the first respondent in the sum of $865.00. The second respondent appealed in HCCA 55/08 to the High Court which allowed the appeal on 21 May 2009, quashed the decision of the Single Magistrate and ordered a re-hearing before the Magistrates' Court.

The appellant was joined as a third party at the re-hearing in the Magistrates' Court in 2009. Following the re-hearing the Magistrates' Court gave judgment in favour of the first respondent, ordering the appellant to pay the sum of $1,428.20. That sum comprised the original value of the goods ordered ($714.00) plus Court fee, legal costs, air fares and 10% interest for each year (2008, 2009, 2010 and 2011).

The argument by Ms Tekanito is simply that the Magistrates' Court was wrong to order the appellant to pay $1,428.20 since the amount exceeded the amount claimed by the first respondent in his original claim. In another word, the appellant's argument is that the first respondent was not entitled to that which he did not ask for.

Mr Kuarawete of Counsel for the first respondent contended that the amount $1,428.20 comprised the original claim plus costs and Court fee. Counsel added that by the time of the re-hearing and because of the non-payment by the appellant, the first respondent was entitled to add interest on the sum awarded. Also since the first respondent had to travel to South Tarawa for the hearing, the air fares costs were properly included as well in the sum claimed. The total amount payable, says Counsel, was therefore $1,428.20.

The Magistrates' Court record shows that the first respondent succeeded in his claim against the second respondent who was ordered to pay $700 + $15 Court fee + $150.00 costs, total: $865.00 on 2 December 2008.

The parties to the appeal in the High Court in 2009 were the second respondent and the first respondent. The High Court stated that it retained "control of the case to allow Ms Maitinnara to apply to join WKK Shipping as a third party" but no order was made as such.

On 21 September 2009, Ms Maitinnara of Maitinnara-McDermott and Associates filed a Third Party Notice naming Waysang Kum Kee t/a WKK Shipping as Third Party in the appeal HCCA 55/08. The Third Party Notice expressly stated that:

"The Appellant (Punjas (Kiribati) Limited) claims indemnity from you against the Respondent's claim and the costs of this action on the ground that the goods bought by the Respondent were shipped through your shipping company".

It appeared that nothing further happened until 16 October 2009 when the High Court ordered that the "Action remitted to Betio Magistrates' Court for further hearing and decision" between Punjas (Appellant) and Itamaeri Nabaekeke (Respondent). Waysang Kum Kee or WKK was not mentioned in the order of the High Court remitting the case to the Magistrates' Court.

The re-hearing in the Magistrates' Court did not take place until early March 2011. The present appellant was added as a third party. The plaintiff was the first respondent and the defendant was the second respondent. The claim against the second respondent was for the same amount $700.00 plus $15.00 Court fee. There was no inclusion of a claim for air fares. If the appellant was to pay the amount ordered, it should only be for $700 + $15.00 and costs of $150.00, a total of $865.00. The first respondent was not entitled to include the amounts representing 10% interest for the years 2008, 2009, 2010 and 2011.

That is not the end of the matter. The case was between the first respondent and the second respondent. The appellant was only brought in as a third party. The extent of the appellant's liability could only arise from money owed by the appellant to the second respondent so that the second respondent could lawfully claim being entitled to be indemnified by the appellant. Instead, the Magistrates' Court proceeded to give judgment against the third party without determining the liability of the second respondent first and determining the extent of the liability of the third party to the second respondent.

The practice of issuing Third Party Proceedings in this jurisdiction needs to be re-looked at. It has been used by parties as a substitute or a means of passing on the defendant's responsibility to a third person to shoulder their obligation to the plaintiff or at times, the plaintiff would take out the Third Party Notice on another person who happens to have some outstanding debt with the defendant. Third Party Notice is issued by a defendant not by the plaintiff. It is premised on the principle that the third party owes a debt to the defendant.

As the appellant did not seek to pursue the other grounds, thereby effectively agreeing to be responsible for the judgment debt in the sum of $865.00, this case can be best resolved by allowing the appeal and ordering that judgment be entered for the first respondent against the second respondent in the sum of $865.00. The second respondent is entitled to be indemnified by the third party, the appellant, in the said amount.

ORDER: Appeal allowed. Judgment for the first respondent is entered against the second respondent in the sum of $865.00. The appellant is to indemnify the second respondent in the sum of $865.00. Each party to bear its own costs.

Dated the 5th day of July 2013

SIR JOHN MURIA
Chief Justice