IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO
KIRIBATI

Civil Appeal No 5 of 2009

BETWEEN:

WILLIAM YUN
APPELLANT

AND:

URITINA E TEANGANA & ATARAKE TOKANIMAN
RESPONDENTS

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Mantaia Kaongotao for appellant
Botika Maitinnara for respondent

Date of Hearing: 24 August 2009
Date of Judgment: 26 August 2009

JUDGMENT OF THE COURT

[1] The issue in this appeal is whether in the transaction to be described, the second respondent Atarake had acted as the agent of the appellant Yun. The Chief Justice in a judgment delivered on 10 November 2008 held that he had and so was entitled to be indemnified by Yun in respect of liability incurred to the first respondent Uritina.

[2] The proceedings had been brought by Uritina against Atarake, claiming the return of $11,000 paid to him for the purchase of a truck, which had not been delivered. Atarake then joined Yun as third party, claiming that he was merely Yun’s agent in the transaction. This Yun denied. When the hearing began, Atarake admitted liability to Uritina, and judgment was entered accordingly. Thus the contest became one between Atarake and Yun.

[3] Atarake and Yun were the only witnesses. In his judgment, the Chief Justice said that he was not impressed by Yun, whom he found evasive, prevaricating and not believable; thus wherever there was a contradiction between the evidence of the two, he preferred that of Atarake. This was a particularly strong finding as to credibility, from which this Court is in no position to differ. Accordingly, we set out the relevant facts, largely as the Chief Justice found them in accordance with Atarake’s evidence. 

[4] In 2005 Yun and a Mr. Loomi Lo asked Atarake, who was a school teacher by profession, to help them establish and operate an importing business. To this end, they proposed that he use the trading name "Golden General Imports" and gave him the money for the name to be registered. Yun then went to Fiji, and in due course a shipment arrived from Fiji. It comprised three motor cars, two trucks and a variety of other goods such as kava powder, sponge mix and hardware. In circumstances that were not explained Uritina arranged with Atarake to buy one of the cars and one of the trucks for $16,000. Yun and Lo had no money to clear Customs and so Atarake went to the wharf with Uritina, paid the duty out of the $16,000, and so had the vehicles released from Customs, and Uritina took delivery. The next day she changed her mind. She no longer wanted the truck, and returned it. Yun told Atarake to find another buyer for it, and he did so, getting $5,000 for it. Yun said he would bring another truck for Uritina in the next shipment, but he has failed to do so. It was agreed that the value of the car which Uritina kept was $5,000, and so, with no replacement truck, Atarake was $11,000 out of pocket.

[5] Atarake used the rest of the money Uritina had paid him and the money from the sale of the truck to release from Customs other goods for Yun, which at Yun’s direction he sold and accounted to Yun for the proceeds. He himself received nothing from these transactions.

[6] Yun’s case was that he knew nothing of the dealings between Atarake and Uritina. All he did was put Atarake in touch with suppliers in Fiji, and, as he was in Fiji at the time, he helped Atarake with the paperwork for the export of the cars from Fiji.

[7] Invoices for the purchase of all the vehicles except one truck came from Empire Auto Parts and were addressed to "Golden General Imports ….Att. Mr. Loomi Lo." Others were addressed simply to "Golden General Imports". They do not show Atarake’s name at all. 

[8] In reaching his decision the Chief Justice placed considerable weight on the fact that the shipping documents name as the exporter from Fiji "William Yuen c/- Williams & Gosling Suva Fiji Islands." They too show the goods as sold to "Golden General Imports".

[8] Yun’s evidence about the documents was rather confused. In his evidence-in-chief he said that the exporter of the vehicles was Empire Auto parts: "I was there, that’s why my name appears. I did shipment for him from Fiji but the selling of the goods had nothing to do with me." In cross-examination he said "I was not the exporter – only help with the shipping. Usual practice for supplier to be named as exporter……Williams & Gosling the exporters…Name "Golden General Import" –didn’t know it was consignee."

[9] The Chief Justice concluded that neither Atarake nor Williams and Gosling was the exporter. "The third party (Yun) has given no credible reason otherwise why his name should be on the bills of lading." He went on to ask why Yun was not named as the importer, and he found the answer to that in an unchallenged statement by Atarake: "He said he couldn’t deal with it because he was forbidden to enter Customs."

[10] The Chief Justice summed up his findings in this way:

"On the balance of probabilities I find that, for reasons of his own, the third party did not wish to be named as importer. He therefore, with the help of Mr. Loomi Lo, persuaded the defendant to act as the importer using the business name "Golden General imports". There is no suggestion that the defendant got anything out of the arrangement. To put it another way, the third party used the defendant as a front for this transaction of importing vehicles into Tarawa. I find the defendant merely the third party’s agent."

[11] The notice of appeal asserts that the High Court erred in law in four respects:

1. Holding that the second respondent was the agent of the appellant.

2. Holding that the appellant …. was liable for the contract existing between the first and second respondents.

3. That the verdict is against the weight of evidence.

4. Further grounds at the completion of the transcript.

[12] The second ground adds nothing to the first. The fourth, very common in appeals to this Court, is quite inappropriate. If there are grounds of appeal they should be obvious to counsel as soon as the judgment is available, or as soon as further advice is taken. These should then of course be set out clearly and succinctly in the notice of appeal. It may be that in the course of preparation for the appeal, counsel realises there may be another ground, additional to those already given. Counsel’s duty is then promptly to inform the Court and the other parties, of that ground.

[13] The third ground is not a ground of appeal at all. If a judgment based purely on findings of credibility of fact is challenged on appeal it can only be on the grounds that the decision was not one that could reasonably be reached on the evidence. That is a high standard indeed. 

[14] The simple issue in this case was whether Atarake was acting on his own behalf as principal or as agent for Yun. That issue was a purely factual one, turning essentially on an assessment of the credibility of the two men as they gave their evidence. The Chief Justice as the trial judge was fully entitled to accept the evidence of the one and reject the evidence of the other. The appellant has shown no grounds on which this Court would be entitled to differ from his assessment in that respect, or from his consequent findings of fact, which led inevitably to his conclusion that Atarake was Yun’s agent.

[15] For these reasons the appeal is dismissed. The appellant must pay the respondent’s costs in a sum to be agreed or failing agreement to be fixed by the Registrar.

Hardie Boys JA
Tompkins JA
Fisher JA