Temwaati v Beru [2024] KIHC 16; Civil Case 44 of 2019 (24 July 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 44 OF 2019

BETWEEN:
ANA TEMWAATI
Plaintiff

AND:
ENRIETA BERU
Defendant

Date of Hearing: 26 JUNE 2024, 3 JULY 2024 (w/submission)
Date of Judgment: 24 JULY 2024

Appearances: Ms. Taaira Timeon for the Plaintiff
Ms. Batitea Tekanito for the Defendant

JUDGMENT

Introduction:

1. By Writ of Summons filed on 16 July 2019, the plaintiff sued the defendant for the recovery of $1500, the sum paid pursuant to a sale of land agreement made sometime in 2001.
   
2. In 2005, both parties went to formalize their agreement before the Lands Court in Aranuka, but this was unsuccessful. The case before the Lands Court was only between the plaintiff and the issues of the late husband. The children opposed the sale, and consequently, the Lands Court refused the application for the sale of land. In this suit, the plaintiff wanted the defendant to pay back this money since she received the money when payment was made.
   
3. The agreed fact is the land, which is the subject matter of the agreement, belonged to the defendant’s deceased husband. The agreement was made when this husband was still alive. The husband had already passed away in 2005 when the plaintiff and defendant went to Aranuka to formalise this agreement.
   
4. In this claim, the plaintiff sued for damages of $10,000; the breakdown is as follows;
   
   • - Reimbursement of $1500
   • - General damages of $3000
   • - Special damages of $5000
   • - Interest of 5% from the date of judgment to the date of payment and
   • - Cost of $500
5. The defence proposed by the defendant is that the agreement for the sale of land was made between the plaintiff and her husband. The defendant is not a party to this agreement. She only received the money in respect of the agreement between her husband and the plaintiff. Therefore, the plaintiff should sue her late husband's estate, pursuant to the Magistrate Court Rules.
   
6. During cross-examination, the following questions were asked of the plaintiff;
   

Ques: “I want to take you back to 2001; the agreement for the sale of land that you made was not between you and the defendant, but between you and the husband of the defendant, is that correct?

Ans: “ Yes, but Enrieta was the one who took the money from me.”

Ques: “ You just have to answer the question, the agreement between you and the husband?

Ans: “Yes”

Ques: “For you to buy the husband’s land?

Ans: “They want to take the money from me to sell their land to me, but it is not me that I want to give them the money.

7. The defendant did not call any witness; however, there is no need, as the evidence above shows that the contention for the plaintiff that the contract was between the plaintiff and the defendant must fail. The other claims for damages and costs against the defendant arising from this agreement must also fail. The claim must be directed to the estate of the late husband.
   

Order

8. Based on the above, the plaintiff’s claim against the defendant for breaching an agreement between the parties must fail as no agreement was entered. The defendant is not liable for the breach of contract between the plaintiff and the defendant’s deceased husband.
   
9. The claim is dismissed with cost to the defendant, to be agreed or taxed.
   

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice