IN THE HIGH COURT OF KIRIBATI 2011

CIVIL APPEAL NO. 3 OF 2011

BETWEEN

TOKANIMAN BUREIETA
APPELLANT

AND

TEAWAKI BWEBWENIKAI
1ST RESPONDENT

TINEBO TEAWAKI
2ND RESPONDENT

Before: Hon Chief Justice Sir John Muria

21 November 2011

Mr Raweita Beniata for Appellant
Mr Banuera Berina for Respondents

JUDGMENT

Muria CJ: This is an appeal by the appellant following a retrial of this matter as ordered by this Court in High Court Civil Appeal 34/09.

The circumstances surrounding this case have been helpfully set out in the written submission of Mr Beniata of Counsel for the appellant. It is also sufficient to say that the case arose out of a dispute between the respondents and their children, and the appellant's wife. That dispute was over unpaid debts and occurred in or about January 2009.

At the hearing on 29 June 2010 in the Magistrates' Court, following two adjournments, only the appellant was present. The Magistrates' Court proceeded to hear the plaintiff's/appellant's evidence and then adjourned the matter to 29 July 2010 to enable the defendants/respondents to put their case to the Court. The defendants/respondents failed to appear. After further two adjournments the matter was finally concluded on 9 September 2010 and judgment delivered on 18 October 2010 dismissing the appellant's case.

The record confirms that the only evidence before the Court was that of the appellant. The defendants/respondents did not turn up at the hearings. The Magistrates reviewed the evidence and stated as follows:

In reviewing the Plaintiff's evidence, this Court saw that his testimony is but information that he heard from others (hearsay evidence), and his own assumptions since they have some sort of dispute with the Respondent. There was no indication that they saw the Respondent breaking their properties.

In her closing remarks, the Magistrate dealt with the onus of proof and concluded as follows:

What the Court meant here is that the Plaintiff remain (with the onus of proof) to prove the fact in issue to prove that the destruction of his house and properties was done by the Respondents. Since there was no evidence that could prove that, then this Court must not accept this application even if there was no evidence against it, for the above reason.

In dealing with the question of the onus of proof, the Magistrate was correct in stating that the onus of proof remained with the plaintiff. So that even if there was no evidence from the defendants, the plaintiff still had to prove his claim. The standard of proof is, of course, on the balance of probability. In order to ascertain whether the plaintiff has satisfied the standard of proof cast upon him, the Court would have to assess the evidence before it.

In this case, the Magistrate reviewed the evidence and concluded that the plaintiff's evidence was hearsay and based on his assumption that the respondents were the ones who destroyed his house because of some dispute between his wife and respondents. Mr Beniata submitted that the Magistrate's assessment of the evidence was erroneous. Counsel further submitted that despite the fact that the appellant did not actually see the respondents breaking his house and destroying his personal belongings, there was evidence to connect the respondents to the destruction of his house and personal belongings. There was evidence, submitted Counsel, that the appellant saw his two beds beside the respondent's house after the fight. Secondly, there was a fight in the afternoon between the respondents and their children, and the appellant's wife who was injured at the head. Thirdly because of the fight, the appellant and his wife had to seek settlement at another place. Fourthly, at the fight in the afternoon, the appellant saw the respondents threw stones at him and his wife, and fortunately, they missed the stones. The stones hit the appellant's house. This evidence demonstrates a link between the respondents and the destruction of the appellant's house.

I feel it is worth turning to some of the evidence given at the trial by the appellant. The Court records show the following:

Q. Why did you say that those people are liable to pay compensation?
A. Because I blamed them. I really believe in my mind and according to my investigation from others and have no doubt that they were the one that broke my properties.

Q. What is it that centre your accusation (blame) upon them that they have to pay compensation for the broken properties of your house?
A. these are the reasons: 1. They have a dispute with my spouse; they always in an argument. 2. Their anger involves throwing of stones at, and I saw them before my house was broken. I have already request them to stop 'cos my house is broken and they said that it is not a real house and they have to break it.

Although some aspects of the evidence given may be described as hearsay, I have to agree with Mr Beniata that there is evidence before the Court that put the respondent at the scene of the destruction of the plaintiff's house. There was evidence to establish that following an argument between the respondents and his wife, he saw the respondents throwing stones at his house. He requested the respondents to stop throwing stones at his house but the respondents said that his house was not a real house and they had to break it. The appellant then went to cut toddy in the afternoon. When he returned he saw his wife injured at her forehead and his house badly damaged. There was no evidence to ever suggest that somebody else other than the respondents were responsible for his wife's injury and destruction of his house and personal belongings. The evidence points squarely to the respondents.

Had the Magistrate properly assessed the evidence, she could have found that the respondents were the only persons against whom the evidence was pointing. I accept the proposition put by Mr Berina of Counsel for the respondents that the Magistrate made findings of fact and that an appellate court ought not to lightly interfere with such findings. However, the appellate court has the discretion to interfere with a finding of fact by the lower court where such finding cannot be supported on the evidence before the Court. See Bare –v- Kanoanie [2006] KICA 22.

In the present case, in my judgment the Magistrate fell into error in her assessment of the evidence which led her to conclude that the appellant's case was wholly based on hearsay evidence. In the circumstances the appeal must succeed. The appeal is allowed and the decision of the Magistrates' Court given on 18 October 2010 is set aside.

The case had been sent back to the Magistrates' Court once already for retrial. I do not think that it is necessary to send the matter back once again to Magistrates' Court for retrial. Clearly, judgment should have been entered for the appellant in this case. In the exercise of the Court's power under section 34 of the Magistrates' Court Ordinance, I order that judgment be entered for the plaintiff/appellant in this case and order that the sum of $2,200.00 to be paid to the plaintiff/appellant by the respondents as damages for the destruction of his dwelling house plus $15.00 Court fees.

Order accordingly.

Dated the 22nd day of November 2011

SIR JOHN MURIA
Chief Justice