Bongia v Manager TTT Enterprises [2015] KIHC 37; Civil Appeal 28 of 2013 (19 June 2015)

IN THE HIGH COURT OF KIRIBATI 2015

CIVIL APPEAL NO. 28 OF 2013

BETWEEN

TIIMI BONGIA
APPELLANT

AND

MANAGER TTT ENTERPRISES
RESPONDENT

Before: The Hon Chief Justice Sir John Muria

19 June 2015

Mr Aomoro Amten for Appellant
Ms Elsie Karakaua for Respondent

JUDGMENT

Muria, CJ: This is an appeal brought by the appellant against the decision of the Magistrates' Court in CN 307/13. Before this Court, the appellant relies on three grounds, namely –

(a) The Single Magistrate erred in holding that there was no agreement between the parties;

(b) The Single Magistrate erred in holding that there was no guarantee on the purchased items;

(c) The Single Magistrate misdirected himself on the applicability of Schedule 2 of the Magistrates' Court Rules.

Other grounds raised by the appellant were not argued and so the Court need not consider them.

Background

Briefly, the case is about a claim for cost of items bought by the appellant from the respondent for repair of a boat. The appellant bought some marine plywood from the respondent to repair his boat. The marine plywood were delivered to the appellant who used it to repair his boat. After two weeks of using the boat, the appellant noticed a swollen bulge on the part of the boat where the plywood was placed. The appellant demanded refund of his money $1,209. The respondent refused to refund the appellant.

In the court below the Single Magistrate dealt with the case and held that the appellant's claim did not succeed because there was no agreement between the parties and that there was no guarantee on the items purchased.

Consideration

At the hearing of this appeal, both parties agreed that there was an oral agreement between the parties in this case. There was clearly an oral agreement between the parties in this case for the sale and purchase of the plywood items. The appellant paid for the items and the respondent delivered them to the appellant.

The Single Magistrate was clearly in error to find that there was no agreement between the parties in this case.

In support of the second ground of appeal, Mr Amten argued that the item bought was not fit for the purpose for which it was sold. Counsel submitted that it was an implied term of the contract that the plywood would be fit for the purpose for which it was bought. As it turned out, the plywood only lasted two (2) weeks and then got swollen. Counsel submitted thattherespondent was in breach of section 21(1) of the Consumer Protection Act 2001 which provides that goods supplied must be reasonably fit for the purpose for which they are supplied.

Ms Karakaua of Counsel for the respondent submitted that the respondent supplied the goods to the appellant who accepted them. They were stamped as Marine Plywood – which was the same product used for construction of boats. As such, Counsel argued, the respondent did not breach section 21(1) of the Act.

The facts disclosed that the appellant purchased a marine plywood from the respondent. The item was delivered to the appellant. It was a marine plywood of the type used by the respondent to build boats. The appellant bought the marine plywood to repair his boat. That was the purpose for which he bought the marine plywood. There was no suggestion that the marine plywood bought by the appellant was of a different type than that which the respondent normally supplied and used to build boats. The plywood was the type that satisfied the purpose for which the appellant bought the plywood.

It will also be noted that the appellant bought the marine plywood and it was him who used the plywood to effect repair on his boat. No evidence was adduced to show that the resultant defect was not from the nature of the repair work.

As the marine plywood was of the nature normally supplied by the respondent and used by the respondent to build boats, and it was for the same use that the appellant bought the item, the Court is satisfied that the item was of a merchantable quality and fit for the purpose for which the appellant bought them. The appellant used the said marine plywood to effect repair on his boat. He used the boat for two weeks before it experienced some defects on the part of the boat where the repair was effected.

The appellant, in my view, bears the burden of excluding the possibility that damage was caused, not by his repair-workmanship but solely by a defective marine plywood supplied by the respondent. This is the hurdle that the appellant needs to overcome in this case. Section 21 of the Consumer Protection Act 2001 in this case would not be of help to the appellant on the facts of the case.

The other matter raised by the appellant is the suggestion that the Single Magistrate misdirected himself as to the application of Schedule 2 of the Magistrates' Court Rules. Ms Karakaua accepted that the Single Magistrate cited Schedule 2 when he should have cited Schedule 1. I do not need to deal with this issue since it does not affect the outcome of the main issue of concern in this case.

I take note of cases cited by Counsel for the appellant but they are on different factual circumstances.

This appeal is determined mainly on the two grounds already referred to. First, this Court accepts that the Single Magistrate erred in law in holding that there was no agreement between the parties in this case. Secondly, this Court does not accept the appellant's contention that the respondent was in breach of a warranty, as stipulated under Section 21(1) of the Consumer Protection Act 2001, when he sold the marine plywood to the appellant in this case.

In the circumstances, although the appellant succeeds on one ground, the crucial ground upon which his claim is based fails. The result is that the appeal must be dismissed.

In the circumstances also I feel there will be no order as to costs in this case.

Dated the 26thday of June 2015

SIR JOHN MURIA
Chief Justice