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Waysang Kum Kee v Kiribati Oil Company Ltd [2010] KICA 7; Civil Appeal 09 of 2010 (18 August 2010)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO

Civil Appeal 9 of 2010

BETWEEN:

WAYSANG KUM KEE
Appellant

AND:

KIRIBATI OIL COMPANY LIMITED
Respondent

Before: Tompkins JA
Fisher JA
Williams JA

Counsel for Appellant: Kiata Kabure
Counsel for Respondent: Banuera Berina

Date of Hearing: 13 August 2010
Date of Judgment: 18 August 2010

JUDGMENT OF THE COURT

Introduction

[1] By a judgment of 7 January 2010 the Chief Justice found that the appellant was entitled to recompense for the freight cost of carrying the respondent's fuel from Canton to Tarawa. At a further hearing on 4 February 2010 he fixed the sum due at $8,750.00. The appellant appeals against that decision, arguing that the figure should be higher.

Background

[2] At the respondent's request the appellant had carried the respondent's fuel in his vessel, the MV Mataraoi, from Tarawa to its intended destination at Canton. On arrival there it was found that the fuel could not be offloaded as the respondent's storage tanks were full. The appellant was forced to keep the respondent's fuel on board the vessel while it continued on its voyage calling at Kiritimati and Fanning on the way to Washington and then back via Fanning, Kiritimati, and Kanton to Tarawa.

[3] In his first judgment the Chief Justice found that after his arrival back in Tarawa the appellant bought the fuel from the respondent but he also held that the appellant was entitled to set off against the purchase price the freight for returning the fuel from Canton to Tarawa.

[4] The parties being unable to agree upon the freight for the return trip, a further hearing was held on 4 February 2010. At the hearing the respondent's accountant said that the freight cost for the return trip was $8,750, this being the cost charged for the Tarawa to Canton leg of the journey.

[5] The appellant had a different approach based on the length of the journey via other places before reaching Tarawa again. Unfortunately the appellant was not present in court on the day that that issue was resolved. His counsel attempted to adduce the evidence the appellant would have given through his daughter. However his daughter was simply attempting to pass on the evidence of her father. The Chief Justice upheld an objection to her evidence on the ground that it was hearsay.

[6] That left only the unopposed evidence presented on behalf of the respondent. The Chief Justice adopted this and fixed the freight figure for the return trip at $8,750.00.

The Appeal

[7] In this Court Ms Kabure's first submission was that the return trip from Canton to Tarawa was more circuitous than the outward trip and therefore involved freight over a much greater distance. However it was open to the Chief Justice to assess damages on the basis that the appellant had a choice whether to take a more direct return trip and that if he freely chose a more circuitous one he could not add that to the freight payable by the respondent.

[8] Ms Kabure's second submission was that it was a denial of justice for the Chief Justice to insist on proceeding with the quantum hearing in the absence of the appellant. Ms Kabure explained that the appellant personally had been required to go overseas and that it was Ms Kabure's understanding that the call of the case on 4 February was purely a procedural one for mention. She was taken by surprise when the quantum hearing proceeded. Consequently she did not have admissible evidence ready to deal with the point.

[9] Mr Berina said that the appellant and his advisers had been informed well in advance that the quantum hearing would proceed on 4 February.

[10] We are in no position to resolve the conflict between counsel on that point. The fact that four different counsel had been acting for the appellant at various stages of the matter may have resulted in a misunderstanding within the appellant's camp. In any event the onus of showing that the appellant had received inadequate notice of the hearing was on the appellant. He is unable to discharge it.

Conclusion

[11] Neither ground of appeal can be sustained. The appeal is dismissed with costs to the respondent to be agreed or fixed by the Registrar.

Tompkins JA
Fisher JA
Williams JA