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Andrewartha v Attorney General [2010] KIHC 34; Civil Case 177 of 2008 (12 March 2010)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION

High Court Civil Case 177 of 2008

HELD AT BETIO
REPUBLIC OF KIRIBATI

BETWEEN:

DEREK ANDREWARTHA t/a
ONE STOP SHOP
Plaintiff

AND:

ATTORNEY GENERAL iro
COMMISSIONER OF POLICE
Defendant

For the Plaintiff: Ms Botika Maitinnara
For the Defendant: Mr Monoo Mweretaka

Date of Hearing: 10 March 2010

JUDGMENT

The plaintiff, trading in Kiribati under the name "One Stop Shop" sues the Attorney General in respect of the Commissioner of Police for $14,290 alleged to be the value of 40 cartons of vodka ($9,600) and the cost price of vodka ($4,690) sold to customers on credit and not paid for.

The facts are disputed only to the extent of the defendant alleging there were 30 not 40 cartons but the defendant did not challenge the amount claimed for the cartons, however many there were. The plaintiff did not pursue the claim for the cost price of unpaid vodka.

Neither party called evidence.

Before setting out the undisputed facts I should say that Teraina is an island remote from Tarawa, remote even from Kiritimati Island. Communication between Teraina and Tarawa is difficult, intermittent and infrequent.

The plaintiff sent his agent Nei Tikoro Totiana to Teraina with a cargo of 150 cartons each containing 12 bottles of vodka at $25.00 each. No other cargo for Teraina.

The officer of the Teraina Island Council issued N. Tikoro, on payment of $400, with a floating licence (Exhibit P1). This licence allowed her to sell from a ship but not on shore. N. Tengea, a customer – one with whom the plaintiff or his agent had had previous dealings and who was trusted – came on board, bought cargo and paid $3,000 on account of a total of $9,600. It was arranged that N. Tengea would take delivery of the cargo from the Island guest house. A sale and purchase completed on the ship with delivery on land: permitted pursuant to the floating licence.

N. Tikoro made three trips to Teraina. The sale was on the first. On the second trip the police seized the vodka, telling N. Tikoro that she needed a licence under the Liquor Ordinance before she could sell the vodka on Teraina. Pursuant to s.31 of the Ordinance that licence is granted by a Liquor Licensing Committee for the area where the liquor is to be sold. No liquor licensing committee for Teraina has been constituted.

N. Tikoro was charged before the Teraina Magistrates on 9 October 2008 with "selling out liquor without a liquor licence". She pleaded not guilty. The hearing was adjourned at her request as she wished to get a lawyer – a vain wish as no lawyer in my recollection has ever gone to Teraina.

Finally according to the affidavit of Tebano Tauatea, Assistant Commissioner Operation, Kiribati Police Service, on 13 March 2009 the hearing resumed without N. Tikoro. She was convicted and fined. There has been no appeal.

Mr Mweretaka had the Court minute brought to Tarawa. It is before the Court together with an English translation. For the purpose of deciding this claim the last two sentences are the most relevant:-

Exhibits were 30 cartons of vodka.
Already destroyed on the decision of the Magistrates.

Mr Mweretaka suggested this translation was not accurate. I have checked it with the original:-

Exhibits were 30 cartons of vodka.
Ea tia n destroyed baai aikanne ibukin aia moti taani moti.

The translation is accurate. The original is quite clear. The vodka had already been destroyed before N. Tikoro was convicted. It should not have been. S.81:-

Without prejudice to any other provision of this Ordinance, whenever a police officer believes or has reason to believe that an offence has been, or is being, or is about to be committed under this Ordinance, he may seize and take away all liquor and all receptacles and articles connected with such offence, and the same may, upon conviction in respect of such offence, be forfeited by the court.

The police were entitled to seize the vodka but it could not be forfeited until after conviction. Yet, as acknowledged, it had already been destroyed. The police had no authority to destroy it when they did. They should have held the liquor until there had been a conviction and the time within which to appeal had expired.

I must not form a settled opinion on the circumstances and correctness of the conviction unless an appeal is instituted and I hear argument. An appeal now is well out of time but, again subject to argument, pursuant to s.68 of the Magistrates’ Court Ordinance time within which to appeal may be extended.

I shall adjourn the hearing of this claim for a month to allow the plaintiff to discuss the matter with N. Tikoro.

If no appeal from the conviction had been instituted within a month (or such longer time as I may allow) or if an appeal be dismissed, I shall consider the error of the police venial and enter judgment for the defendant. If on the other hand an appeal be successful and the conviction be set aside, I may give judgment for the plaintiff.

Dated the 12th day of March 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice