Korere v Tekabeia [2016] KIHC 3; Civil Appeal 29 of 2014 (2 June 2016)

IN THE HIGH COURT OF KIRIBATI 2016

CIVIL APPEAL NO. 29 OF 2014
(HELD AT KIRITIMATI ISLAND)

BETWEEN

BEETA KORERE
APPELLANT

AND

NNAKINA TEKABEIA
RESPONDENT

Before: The Hon Chief Justice Sir John Muria

1 June 2016

Ms Kiata Kabure for the Appellant
Ms Elsie Karakaua for the Respondent

JUDGMENT

Muria, CJ: This is an appeal by the appellant against the decision of the Single Magistrate who ordered the appellant (the defendant in the Court below) to pay $980.00 plus $15.00 Court fees, totaling $923.00 to the respondent/plaintiff.

The claim by the respondent in the Magistrates’ Court was for the “repayment of the amount of $1,196.00 + $15.00 = $1,211.00” which claim was denied by the appellant. The outstanding amount of $1,196.00 was said to have arisen from a sum of $2,000.00 borrowed by the appellant from the respondent. However, the claim by the respondent against the appellant was for the repayment of the amount of $1,196.00. The evidence of the respondent before the Single Magistrate was that the appellant had repaid a total of $1,092.00.

The argument by Ms Kabure of Counsel for the appellant was that the claim by the respondent in the Magistrates’ Court was for the repayment of “the amount of $1,196.00” and that the appellant had made payments totaling $1,092.00. The appellant did not dispute that he still owed the respondent some money, but not the $1,211.00 (including $15.00 Court fees) as claimed by the respondent in the Magistrates’ Court. The most, the appellant still owed the respondent, was $170.00, argued Ms Kabure in her written submission.

Ms Karakaua of Counsel for the respondent, on the other hand, submitted that the respondent’s claim was concerned with the $2,000.00 which the appellant borrowed and repaid only $1,092.00 of it. Thus argued Counsel, the outstanding that was still owing to the respondent was $908.00 together with the Court fee of $15.00 making the total of $923.00. Unfortunately, the respondent’s argument cannot succeed in this case.

There are three basic reasons why the argument by Ms Karakaua and the decision of the Magistrates’ Court cannot stand. First, the claim by the respondent in the Magistrates’ Court was for a demand for the repayment of the outstanding “amount of $1,196.00” plus the $15.00 Court fee. The respondent’s claim as stated in the summons was not for the outstanding difference between the amount of $2,000.00 borrowed by the appellant and the amount of $1,092.00 which he repaid. Put another way, the respondent’s claim before the Single Magistrate was not for the payment of $908.00 which was the balance between the amount of $2,000.00 borrowed and $1,092.00, the amount repaid. If that was the claim before the Magistrates’ Court, then the order of the Magistrates’ Court would have basis for making it.

Secondly, as the claim brought before the Court by the respondent was for the repayment of “the amount of $1,196” plus $15.00 Court fees, it was wrong for the Single Magistrate to treat the respondent’s claim as a claim based on $2,000.00 ‘borrowed’ by the appellant, rather than based on the amount stated in the claim before the Court. In the present case the amount claimed was $1,196.00 plus Court fee of $15.00. The amount paid by the appellant according to the respondent’s evidence was $1,092.00. Clearly the amount of $923.00 awarded by the Magistrates’ Court to the respondent was beyond what the respondent had claimed. Such an order amounts to giving the respondent that which she did not ask for. That, in principle, is wrong.

Thirdly, the parties in this dispute were self-represented litigants. If the Court, in the course of the trial, felt that the real claim by the plaintiff as shown by the evidence was not compatible with that which was sought in the claim form or summons, then it would be incumbent on the Court to point out to the party concerned to reconsider her case with a view to seeking help to amend her case, before proceeding further. The Court cannot take on the task making the case for the plaintiff based on the evidence given to the Court.

In the present case, the decision of the Magistrates’ Court cannot stand. It must be set aside.

That part of the order of this Court announced in Court earlier that the appellant shall only repay the sum of $119.00 to the respondent is vacated.

The order of this Court now is as follows:

1. Appeal allowed;

2. Case is remitted to the Magistrates’ Court to properly hear and determine the balance of the amount still outstanding to be paid by the appellant to the respondent in this case;

3. Each party to bear its own costs.

Dated the 2^nd day of June 2016

SIR JOHN MURIA

Chief Justice