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Teiratim v Nakau [2005] KIHC 12; Civil Case 51 of 2004 (14 February 2005)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI


High Court Civil Case 51 of 2004


Between:


IOANE TEIRATIM
Plaintiff


And:


KABOTAU NAKAU
Defendant


For the Plaintiff: Mr Banuera Berina
For the Defendant: Ms Jennifer Troup


Date of Hearing: 14 February 2005


REASONS


In 2002 the defendant allowed the plaintiff and his family to live on land the defendant was occupying. Some time later the plaintiff suggested that the defendant join him in a partnership. The plaintiff has a Business Licence from the BTC in the name of Tirotaam Contract. The defendant joined him in the business. They bought a truck for $12,500. [The Agreement for sale and purchase has the price as $13,600 but the total cost to be paid was $12,500.] The parties used the vehicle registered in the plaintiff’s name (BTC 6630) for carting sand and gravel. The defendant claimed the sand and gravel came from his land. In fact it is land leased by the Government from people who have no connection with the defendant. The sand and gravel were sold to the Ministry of Health for use in building. With the plaintiff’s agreement the defendant used the proceeds to make payments off the purchase price of the truck.


After some time the parties brought the partnership arrangement to an end. It was agreed that for the future they would share the truck, each using it week and week about. Later the defendant refused to give the truck up and has kept it ever since. The plaintiff began proceedings claiming its return and damages.


Those are the only facts which I can find proved. Neither plaintiff nor defendant was a good witness: each had difficulty in expressing himself: each was vague. Their difficulty probably comes from the vagueness of the terms of the partnership and the lack of an accurate record of payments on the truck.


That there was a partnership is acknowledged by both: that they bought the truck and that the defendant has made payments off the truck is acknowledged by both. Whether the defendant was using his own moneys to make the payments, whether he has used some of his own and some of the plaintiff’s and how much he paid are in dispute.


Mr Berina for the plaintiff did not call evidence to support the claim for damages for loss of use of the truck. Ms Troup abandoned the counter claim. So the case comes down to the fate of the truck. Who should have it? On what terms?


There being no hard evidence to guide me I have had to look for clues. The best clue is that on dissolution of the partnership the parties agreed to share equally the use of the truck. The arrangement broke down but it is common ground that that had been the arrangement. Equal use points strongly to ownership in equal shares.


If so, who now is to have the vehicle? It cannot be split in two: one must have it and the other be compensated in money. It is registered in the plaintiff’s name and this is enough to tip the scales in favour of the plaintiff. The plaintiff should have the truck and the defendant be recompensed in money.


Counsel and I reached this point in our discussions during addresses.


How much? The purchase price in October 2003 was $12,500. The vehicle has been used since: it will have depreciated. Having come to the conclusion foreshadowed then evidence should be called – in the absence of agreement – as to its present value so that I may make an assessment. Finally judgment should be entered awarding the truck to the plaintiff and monetary compensation to the defendant (on condition that he return the vehicle in good running order to the plaintiff).


Dated the day of February 2005


THE HON ROBIN MILLHOUSE QC
Chief Justice


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