Tuengeri v Temariti [2015] KIHC 73; Civil Appeal 10 of 2014 (10 October 2015)

HIGH COURT OF KIRIBATI

HIGH COURT CIVIL APPEAL NO. 10 OF 2014

BETWEEN

BARENABA TUENGERI
APPELLANT

AND

KABURE TEMARITI
RESPONDENT

10 October 2015

Ms Kiata Kabure for Appellant
Mr Banuera Berina for Respondent

EX TEMPORE JUDGMENT

Zehurikize, J: The plaintiff/appellant sued the respondent for payment of $963.80 being the cost of the pet fish he supplied to the defendant but no payment had been made for a period of about two weeks.

The defendant in his defence did not seem to deny that the plaintiff had supplied him fish to the tune of the claimed sum of money. The basis of his defence is that he had supplied the fish to a third party in Hawaii who had not made any report nor sent the money.

It was his case that payment to his suppliers, like the plaintiff, was dependent on receiving a report and payment from the buyer in Hawaii. That this was the usual practice.

In the judgment the trial magistrate appeared to be recognizing the practice but at the same time found against the appellant on the ground that he had not produced any agreement that he could be paid by the respondent before the respondent received any report or payment from his buyers in Hawaii.

The trial magistrate appeared to be in a dilemma by appearing to be acknowledging the practice and at the same time demanding proof of that practice or departure from it when he said that the appellant had not produced evidence to show that he could bepaid before the respondent got a report and money from Hawaii.

It was incumbent upon the magistrate to make a clear finding that the custom or practice alleged by the respondent did in fact exist. This can only be done if the party alleging the custom or business practice adduces evidence in support of such claim. This was not done in this case.

The trial magistrate, instead, appeared to be casting the burden of proof to the plaintiff when he said that he should produce an agreement to the contrary. This was a wrong approach on the part of the magistrate. The trial magistrate should have put it on the party alleging the custom to prove it.

I find that the alleged custom is of great significance in the trade of this nature to avoid any abuse by such middle men like the respondent who can easily receive the money and fail to pay the divers who will have supplied him with the fish. It is also important to clarify as to who bears the loss should the buyers in Hawaii default or reject the fish.

For the above reasons I am inclined to and do hereby order that the retrial of the case be conducted and evidence adduced as to the existence of the alleged customary practice and as to what extent it affects the parties. To that extent the appeal is allowed with the order of the retrial of the case. I make no order as to costs.

Dated the 10th day of October 2015

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge