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Keakea v Etekia - Judgment [2007] KIHC 108; High Court Civil Case 83 of 2007 (9 August 2007)

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

High Court Civil Case 83 of 2007

BETWEEN:

TABITERENGA KEAKEA in respect of
NANORAOI KPC GROUP
Plaintiff

AND:

TORUA ETEKIA in respect of NANOTAOI
NORTH KPC GROUP
Defendant

For the Plaintiff: Ms Joelle Grover
For the Defendant: Mr Banuera Berina

Date of Hearing: 28 July 2007

JUDGMENT

This case arises out of unhappy differences amongst members of the KPC fund raising groups in Nanikai village.

Until March of this year there were two groups – the Nanoraoi Group and the Maungatabu Group. The Nanoraoi group had many more members than the Maungatabu group (in January 2007 Nanoraoi had 48 and Maungatabu 18). Some time about the middle of last year the Nanikai Village Committee fixed the contribution of the Nanoraoi Group at twice that of the Maungatabu Group.

By March of this year the ratio of 2:1 had caused discontent amongst some members of the Nanoraoi Group who wanted to go back to equal contributions. The Village Committee did not feel able to arbitrate. The result was a split in the Nanoraoi Group. The group now led by the defendant happened to include the treasurer who had control of the cash of the Nanoraoi Group and it also happened that other Group assets such as the truck and the boat, were in the possession of members of that group. The group has retained possession of the assets. The other group led by the plaintiff has been left with no assets.

The only rule of the old Nanoraoi Group before the Court is set out in paragraph 5 of the Statement of Claim:

The Rules of Association of the Nanoraoi KPC Group state that no member or members shall have any claim to any property purchased by or held by the Nanoraoi KPC Group.

That is admitted in paragraph 5 of the Defence.

The common contention of both sides is that those who break away from the Nanoraoi Group are not entitled to the property of the Group: the property should be the property of the remaining members of the Nanoraoi Group. [The names adopted by the two groups are now Nanoraoi West (plaintiff’s group) and Nanoraoi North (defendant’s group).]

The dispute comes down to which of the two present groups is the continuation of the old Nanoraoi Group? and which is the new group?

Sadly the members have not been able to answer the questions themselves and have come to the Court. The Court is not the best place to resolve a dispute like this. A court must decide according to law. The law may not lead to the happiest resolution but as I have been given the task I must do my best.

I received five affidavits, four tendered by the plaintiff and one by the defendant. Those gentlemen gave oral evidence. The defendant called two other witnesses.

Temwane Tanibarata was the first witness for the plaintiff. He is Chairman of the Nanikai Village Committee and a member of the Maungatabu Group. He is neutral in the dispute and anxious to help find a resolution. He said, in examination in chief, that "the ones who wanted to make it an equal split were the ones who split off". In cross examination he said that the new group was "Tabiterenga’s group. Tabiterenga and his group were regarded as the new group".

Tabiterenga Keakea, Enari Bauro and Ataera Tokintekai all asserted that their group, led by the plaintiff, was the original, the continuation of the old Nanoraoi Group. The defendant and the two other witnesses for the defence were to the contrary – that the group led by the defendant was the original, the continuation of the old Nanoraoi Group. I am sure each witness was trying to tell me what he truly believed to be the position.

In favour of the defendant is the evidence of the plaintiff Tabiterenga having said that the new group would be the pastor’s (or minister’s) group. That is to be considered in conjunction with the evidence of Toake Teboe called by the defendant:-

Visited by Tabiterenga – small piece of paper – "Nanoraoi" and "new group" – to sign under which I favoured. "What has happened? ---- "About to establish a new group". "Can the Minister do this? And how about you? Where will you be?" He said he was going away with the Minister. "OK I’ll put an x beside Nanoraoi group". Even though Tabiterenga was going with the new group. He tried to persuade me but I refused.

Apart from the conflicting evidence there is one objective fact which strengthens the defendant’s case. Custom had been for each group, month and month about, take turns to live in the maneaba and to look after the minister. It is only a "straw in the wind" but it is something: when the split came it was the defendant and his members who remained in the maneaba for the rest of the month. The plaintiff and his members left. [Subsequently it was arranged that Maungatabu would be in the maneaba in April and the group led by the plaintiff in May.] That seems to indicate that the defendant and his members were regarded as the continuation of the Nanoraoi group.

Inclining me in favour of the defendant is Toake’s evidence and the fact that the defendant’s members continued in the maneaba in the latter half of March.

The defendant did not have to prove anything. It was for the plaintiff to prove his case. He has failed to shew that his group is the continuation of the Nanoraoi Group. It follows he has failed to prove that he and his members are entitled to the property of the Nanoraoi Group.

The plaintiff’s claim must be dismissed. With it will fall the order of 15th May restraining the defendant from selling etc. the chattels and funds listed in the schedule attached to the order.

Dated the 9th day of August 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice