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Dojin Co. Ltd v Timon [2015] KIHC 74; Civil Appeal 2 of 2015 (6 November 2015)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL APPEAL NO. 2 OF 2015

BETWEEN

DOJIN CO. LTD
APPELLANT

AND

TEINGOA TIMON FOR TENNA TIMON
RESPONDENT

10 October 2015

Mr Banuera Berina for Appellant
Ms Elsie Karakaua for Respondent

JUDGMENT

Zehurikize, J: The appellant being dissatisfied with the judgment of the trial magistrate (Single Magistrate) at Kiritimati Magistrates' Court given on 31 December 2014 appealed to this Court setting forth two grounds namely:

1. That the learned Single Magistrate erred in law and fact in making an order for payment of $1,341.35 by the appellant to the respondent when the claim was for the sum of $318.85 and there was no evidence in front of the Court to support the findings of the Court.
   
2. That the learned Single Magistrate erred in law in making a finding based on the terms of the Contract without giving notice to the parties that she was troubled about the term in the Contract relating to the payment of $2,000.00 by the respondent to the appellant and therefore the appellant did not have the opportunity to address this issue.
   

At the hearing of the appeal Mr Berina Counsel for the appellant put in written submissions and further made oral clarifications. He argued both grounds of appeal together. The thrust of Counsel's submission is that the magistrate should not have awarded $1,000 to the plaintiff/respondent when it was not part of his claim and no evidence had been led on it.

Counsel clarified that the Contract of Employment was brought into the proceedings by the defendant/appellant merely to prove that the plaintiff's monthly salary was only $300 and that when he got an advance of $1,000 from the company at Honolulu, Hawaii it was over and above his salary especially so when he was later paid $600 for his July and August 2013 salary.

In reply Ms Karakaua Counsel for the respondent conceded that the trial magistrate should not have awarded the sum of $1,341.35 but only $318.85 as contained in the claim.

I have considered submissions by both Counsel and perused the record of proceedings and judgment of the learned Single Magistrate. As the first appellate Court I am under duty to subject the evidence adduced in the lower court, to a fresh scrutiny and make my own findings and conclusions.

The claim for the plaintiff/respondent is for the amount of $318.85 plus $7 being Court fees totaling up to $325.85. The plaintiff bought two items known as igloos and play station and sent them to his family but were never received. He sought compensation of $318.85 being their value.

From the evidence on record the defendant/appellant did not dispute the claim save that it was their evidence that it was not reasonable to refund the money for the igloos and play station because the plaintiff had taken advance of $1,000 for the month of July and August 2013 and later got paid salary for the same period.

As Mr Berina contended, the defendant produced the Contract between the parties for purposes of showing that the plaintiff's salary was $300 per month and not $500.

On studying the agreement, the learned trial magistrate found the plaintiff had deposited $2,000 with the defendant. She went ahead and deducted the $1,000 advance to him from the $2,000 leaving $1,000 on which she added the plaintiff's claim at $341.35 and came up with a total award of $1,341.35 to the plaintiff.

A close look at the plaintiff/respondent's case will reveal that the claim did not make any reference to the $2,000 nor did the two witnesses lead any evidence claiming the said sum of money or part thereof. They simply wanted the refund of the value of the igloos and the play station. This is the case the defendant had to defend itself about.

In their defence the appellant merely stated that they do not find it reasonable for a person who took advance for months of July and August 2013 to be refunded the cost of the alleged items. No serious case for counter claim was made by the defence. They simply produced the Contract to demonstrate that the plaintiff's salary was $300 per month and not more.

In view of the parties' respective cases the trial Court was not called upon to make any reconciliation of the parties' accounts as per the Contract of Employment. The case was limited to the value of the undelivered items – the igloo and the play station.

In case the parties have any other issues, that would be a matter for another case since in this case they never canvassed for the reconciliation of their other accounts or pay roll. There was no evidence on which the trial court could make the decision that she did.

In the premise I find that an award of $1,341.35 cannot stand. Instead it is substituted with the award of $318.85 as conceded to by Ms Karakaua. I do not agree with Mr Berina that the plaintiff's claim should be ignored altogether simply because the defendant/appellant did advance $1,000 to the plaintiff. As I have already found this was not set forth as counter claim. It was merely a reasoning by the appellant for not paying the plaintiff's claim but at the trial it was never asserted as a counter claim or even a set off.

In fact in his final remarks Mr Berina had this to say: "But are saying that he owed us more and should not even get the $318.85 though my clients never pressed for the balance that was due to them".

I think the view by Counsel settles it all. The defendant never pressed for the alleged advance in this trial.

In view of what I found hereinabove the appeal is partly allowed. The extra award of $1,000 had no basis. The respondent is awarded his original claim of $318.85 since it was not contested. Since the appeal has succeeded in part each party will meet its own costs.

Dated the 6thday of November 2015

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge