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Telecom Services Kiribati Ltd v Tatireta [2002] KIHC 31; Civil Case 26 of 2001 (10 July 2002)

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

HIGH COURT CIVIL CASE NO. 26 OF 2001

BETWEEN:

TELECOM SERVICES KIRIBATI LIMITED
PLAINTIFF

AND:

PATRICK TATIRETA
DEFENDANT

AND:

KARARAITI BARAU, TAUNGANGA MOTE
AND ATTORNEY GENERAL
THIRD PARTIES

For the Plaintiff: Mr Katarake Tebweao
For the Defendant: Ms Emma Hibling

Date of Hearing: 10 July 2002

DECISION ON PRELIMINARY POINT

Telecom Services Kiribati Ltd has sued Patrick Tatireta for payment of a telephone bill.

The Writ was issued on 4 September 2001. The Statement of Claim:-

The Plaintiff's claim is for $3,106.56 being the balance of an outstanding telephone bill found to be due from the Defendant under telecommunication service agreement made on or about April 1995.

Particulars

April 95 – 14 Oct 98 Telephone bill account

Due as aforesaid $3,106.56

Balance due $3,106.56

Ms Emma Hibling, for the defendant, has taken a limitation point. The amended defence:-

....2. The Defendant alleges that the Plaintiff's claim for any amounts owing prior to 5 September 1995 is statute barred by virtue of the Limitation Act 1939. .......

I heard argument from Ms Hibling and Mr Katarake Tebweao representing TSKL on the preliminary point as to whether most of the amount claimed is statute barred.

This is a claim on a simple contract or debt: the period of limitation is six years. The Limitation of Actions Act 1939 (UK), section 2 (in part):-

The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say:-

(a) actions founded on simple contract .....

During argument I received from Mr Tebweao, with Ms Hibling's consent, an extract from the TSKL ledger shewing what is claimed. From the extract a balance of $3,295.42 is brought forward: the first entry is for April 1995: the last entry is on 14 October 1998 shewing a balance owing of $3,106.56.

Ms Hibling argued that the claim for any amount owing before 4 September 1995 is statute barred. The ledger shews the balance at the end of August 1995 as $3,355.42.

An acknowledgment in writing or part payment by a debtor allows the period of limitation to run from the date of the acknowledgment or part payment.

I understand that the defendant has never made a written acknowledgment but that will be a matter of evidence in the hearing.

What of part payment?

The ledger shews amounts debited since 4 September 1995 and payments made. The ledger is difficult to follow and the plaintiff may choose to call oral evidence to explain the entries.

If the payments between 4 September 1995 and 14 October 1998 come to more than the charges incurred in that period, then they must be taken to be an acknowledgment of the debt owing before 4 September 1995. The period of limitation will run from the date of the last payment, 14 October 1998. The Writ will have been issued in time and the plaintiff will not be barred from recovering the amount claimed PROVIDED it accrued after 14 October 1993, subject to proof that it is owing.

Dated the day of July 2002

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE