IN THE KIRIBA TI COURT OF APPEAL
CIVIL JURISDICTION

HELD AT BETIO
REPUBLIC OF KIRIBATI

Civil Appeal No. 6 of 2011

BETWEEN

TINOMAI TEEKABU
APPELLANT

AND

TAABIA KABAUA FOR THE PARENTS
COMMITTEE OF JSS TUC 1
KARUAKI TANGKO
ERANG TAUME
RESPONDENTS

Before: Paterson JA Williams JA
Barker JA 

Counsel: Botika Maitinnara for appellant
Taoing Taoaba for 1st third party
Mantaia Kaongotao for 2nd third party

Date of Hearing: 26 August 2011
Date of Judgment: 31 August 2011

JUDGMENT OF THE COURT

1.	On 3 August 2010 the High Court dismissed the plaintiff's claim for damages for the loss of her bus arising out of an accident on 22 June 2007.

2.	The bus was extensively damaged when it came into collision with a truck owned by the Parents Committee and who were represented in the proceedings by the defendant Kabaua. The plaintiff alleged that the accident was caused by the negligence of the truck driver.

3.	There was an issue as to identity of the driver of the truck and as to responsibility for the actions of that driver.

4.	The defendant denied liability and alleged that at the time of the accident the truck was in the custody of Tangko for the purpose of repair and was being driven by one of his workers. The defendant joined as third parties Tangko as being responsible for the negligence of his worker and Taume as the alleged driver. Taume was never served with the proceedings and did not appear at trial. Tangko filed a defence to the third party claim and claimed that the truck had been returned to the defendant on 19 June 2007; he also denied any knowledge of Taume and denied any contact with him.

5.	At the commencement of trial on 2 August 2010 counsel for the plaintiff asked that the question of liability for the accident be firstly separately determined and that the assessment of damages be deferred. Following this request the judge made a note with the consent of counsel in the following terms:

"It is conceded by counsel for the defendant and for the first third party that the plaintiff has no responsibility for the happening of the accident".

6.	Counsel for the plaintiff thereupon withdrew with the consent of the trial judge and she took no further part in the case.

7.	It is apparent that the trial miscarried at this point. The trial judge should not have allowed the trial to proceed in the absence of a party whose interests would be affected by a continuation of the hearing.

8.	In the event, the Court proceeded to hear evidence in the absence of the plaintiff and her counsel. The judge decided that upon the evidence he was unable to decide who was driving the truck. The Court then entered judgment for the defendant against the plaintiff and judgment for Tangko the first third party against the defendant together with an award of costs in each case.

9.	Upon this appeal the plaintiff complains that she was not afforded an opportunity at trial to present her case.

10.	Clearly there has been a misunderstanding at trial as to the procedure which was to be followed. However, it does not follow from the concession of counsel as noted by the Judge that one of the parties to the action was necessarily responsible to the plaintiff. Moreover, only Kabaua was sued by the plaintiff. The third parties shall have been joined as defendants to the plaintiff's claim. It was the responsibility of the plaintiff by her counsel to adduce evidence to identify the truck driver and to establish negligence.

11.	The plaintiff's counsel should have insisted upon her right to participate in the whole of the proceedings and the trial judge should not have allowed the course which was followed.

12.	In his judgment, the Chief Justice remarked that he doubted whether an unincorporated body such as the Parents' Committee could be sued. That is not correct. There is long standing case law to show that such a body can be sued through a representative through the procedure in the Rules for representative actions.

13.	In the result the trial of the action has miscarried. The decision of the Trial Judge to enter judgment should be set aside and the action should be remitted to the High Court for rehearing. There will be no order as to costs.

Paterson JA

Williams JA

Barker JA