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Io v Attorney General iro Cultural Division of the Ministry of Internal Affairs - Judgment [2007] KIHC 86; Civil Case 26 of 2007 (4 May 2007)

In the High Court of Kiribati
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 26 of 2007

Between:

Bwenawa Io
Plaintiff

And:

Attorney General IRO Cultural Division of the Ministry of Internal Affairs
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Mr David Lambourne, Solicitor General

Date of Hearing: 1 May 2007

JUDGMENT

Some time about Independence in 1979 the plaintiff was stationed on Beru as an Assistant Agricultural Officer within the Ministry of Natural Resources. His duties were to make decisions on works concerning agriculture. He drove the Ministry tractor.

Out of working hours the Ministry lent the tractor to the Island Council which was building a causeway. On the day in question, in the absence of the only other man permitted to drive, the plaintiff drove the tractor to the causeway site. Council workmen were collecting stones. The stones were loaded on to the tractor which deposited them at the site. While the workmen were collecting the stones the plaintiff had nothing to do. He went for a walk to the ocean side. On the beach he found what is known in Kiribati as an "itu": in English an "ambergris". He carried it to the tractor, took it back to the Government station intending to keep it for his own use and pleasure. Exhibit P1 is a photograph of himself with the ambergris.

Some time later a Cultural Officer from the Ministry of Home Affairs came to Beru and asked Bwenawa to lend the ambergris for a cultural exhibition. Bwenawa agreed. The ambergris found its way to the national museum and has remained there ever since. Some time in 2006 Bwenawa went to the museum to have a look at the ambergris. He was vexed to notice that he is not credited with finding it: the find is credited to engineers. On or about 5th October 2006 he asked for the return of the ambergris. His request was refused.

Even though the find was so long ago and the ambergris has been for so long in the custody and under the control of the Ministry, the Solicitor General has acknowledged that there is no time point: for a gratuitous bailment as this was, time runs only from the request for the return of the chattel.

Likewise it is conceded that there is no rule of law nor any statute which vests property in circumstances such as these in the Republic.

To determine the plaintiff’s claim one must look to the line of cases beginning in 1722 with Armory v Delamirie [1722] EWHC KB J94; (93 ER 664). A chimney sweep found a jewel. He took it to a jeweler. The jeweler would neither pay the boy for the jewel nor return it:-

Pratt CJ ruled –

‘That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover’ (cited by Donaldson LJ in Parker v British Airways Board ((1982) 1 All ER 834 at 836).

The decision of the Court of Appeal in Parker v British Airways Board is the latest in the line of authority from Armory v Delamirie. It has been approved and followed in Australia and New Zealand. Mr Parker found a gold bracelet on the floor of the BA executive lounge at Heathrow. As he was leaving to board his flight Mr Parker gave it to a BA employer. Later BA sold it, claiming it had belonged to them. Mr Parker sued for the value of the bracelet.

In the course of the principle judgment in the Court of Appeal Donaldson LJ (at 843) set out five general principles applicable when a chattel is found on someone else’s land. The fourth is the principle by which the Solicitor General has urged that I should be guided:-

Unless otherwise agreed, any servant or agent who finds a chattel in the course of his employment or agency and not wholly incidentally or collaterally thereto and who takes it into his care and control does so on behalf of his employer or principal who acquires a finder’s rights to the exclusion of those of the actual finder.

Mr Lambourne argued that the plaintiff was driving the tractor as part of his duties and found the ambergris in the course of his employment: he took "it into his care and control on behalf of his employer", the Ministry: the plaintiff has no claim to it.

To the contrary Mr Berina submitted that his client was not on duty when he found the itu: he was the finder and entitled to keep it for himself.

It is a matter of fact. Bwenawa was driving the tractor to help the Council workers collect stones. This was not part of his duties as an Assistant Agricultural Officer: it was after working hours: he was paid no overtime. On the balance of probabilities he was not driving in the course of his employment. Whether or not I be correct in that finding, going for a walk along the beach when he found the itu was certainly not in the course of his employment. What the plaintiff was doing when he found the itu was wholly incidental or collateral to his employment.

Applying the fourth principle, the plaintiff is entitled to the ambergris.

The plaintiff has claimed for the return of the ambergris to him or alternatively for damages. During argument Mr Berina said that all his client wants is its return. There was no evidence, except from the Bar table, as to its value.

I shall hear counsel as to the order I should make.

Dated the 4th day of May 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice