IN THE HIGH COURT OF KIRIBATI 2019

CIVIL APPEAL NO. 1 OF 2014

		[THE ATTORNEY-GENERAL			APPELLANT
		[
BETWEEN	[AND
		[
		[TAWITA KAIRORONGA 				RESPONDENT

Before:	The Hon Chief Justice Sir John Muria

Ms Taaira Timeon for Appellant
No Appearance for Respondent

20 February 2018

JUDGMENT

Muria, CJ:	This is an appeal against the decision of the Magistrates’ Court in Bairiki in civil case 46/12.  The Magistrates’ Court’s decision was delivered on 
21 December 2015.

Brief Background

2.	The respondent was employed as a police officer and stationed in Kiritimati Island in 2012.  In September 2012, he received a letter from the Commissioner of Police for his transfer to South Tarawa.  Shortly after receiving the September Letter, the respondent received another letter from the Commissioner of Police advising him to remain in Kiritimati Island for the High Court sitting in October 2012, since he was a witness in three criminal cases.  He was advised to send all his belongings to Tarawa ahead while he waited for the High Court sitting in Kiritimati Island.

3.	In October 2012, before the High Court sitting in Kiritimati Island, the respondent came over to Tarawa.  The appellant paid his air fares for 
Kiritimati-Nadi-Tarawa-Kiritimati.  He agreed to reimburse the appellant.

4.	The respondent returned to Kiritimati Island for the High Court sitting.  After the High Court sitting in Kiritimati Island, he made a claim for subsistence allowance under National Conditions of Service E34(i).  His request for payment of subsistence allowance had been rejected and so he brought his claim before the Magistrates’ Court.

Grounds of Appeal

5.	By their amended grounds of appeal the appellant raised two grounds, namely:

(1)	The Magistrates’ Court erred in law in deciding that the Respondent was entitled to the allowance stated under clause E.34 of the National Conditions of Service when the evidence showed that he was not away from his duty station;

(2)	The Magistrates’ Court erred in law in declining to hear counter-claim of the Applicant.

6.	The Magistrates’ Court dealt with the case and considered the issues, including (1) whether or not Kiritimati Island was the plaintiff’s work station at the relevant time, that is, while he was attending the High Court session in Kiritimati Island; (2) whether the plaintiff was entitled to subsistence allowance for the period he spent in Kiritimati Island for the High Court sessions.

7.	Having heard the case, the Single Magistrate found that the plaintiff was transferred to Tarawa effective as of 19 September 2012.  His duty station as of 19 September 2012 was Tarawa and not Kiritimati Island.  The Single Magistrate also found that the period which the plaintiff spent in Kiritimati Island for the High Court session in Kiritimati Island was time spent out of his duty station and as such subsistence allowance he claimed was payable to him.  The plaintiff’s claim was accepted by the Magistrates’ Court.

Disposition of the Appeal

8.	The evidence before the Magistrates’ Court shows that the respondent was transferred to Tarawa effective as of 19 September 2012.  He had vacated his allocated Government Quarter which was occupied by his replacement police officer.  He then travelled to Tarawa in early October on approved compassionate leave to see his father who was sick and returned to Kiritimati Island to attend the High Court sitting as a witness.

9.	The Magistrates’ Court’s decision that the respondent’s duty station was Tarawa as of 19 September 2012 and that when he was at Kiritimati Island in October for the High Court sitting as a witness, he was on duty away from his work station.  The Magistrates’ Court’s decision was clearly correct and cannot be faulted.  The respondent was entitled to subsistence allowance as claimed under the National Conditions of Service.

10.	The second complaint by the appellant relates to the decision of the Single Magistrate made during the hearing, declining to receive and consider the appellant’s counter-claim.  The record shows that it was during the trial, on 
30 April 2014, that the appellant sought to introduce their counter-claim against the plaintiff/respondent in Court.  Also at the adjourned hearing on 30 April 2014, the plaintiff/respondent was not present in Court when the defendant/appellant sought to introduce their counter-claim.  Plainly the Single Magistrate was right to reject the introduction of the defendant’s counter-claim in such a fashion.

11.	It was a simple procedure to follow.  The plaintiff filed and served his claim on the defendant.  Upon receiving the plaintiff’s claim, the defendant ought to file their response to the plaintiff’s claim and if they had a counter-claim, they ought to file it and have it served on the plaintiff who would then have the opportunity to respond to the counter-claim.  None of that happened in this case.  Instead, the defendant/appellant sought to put in their counter-claim during the course of the trial.  The defendants do not have any cause for complaint when the Single Magistrate rejected their quest for counter-claim.

12.	Both grounds of appeal are unsuccessful.  The appeal is dismissed with costs to the respondent to be taxed if not agreed.

Dated the 8th day of November 2019

SIR JOHN MURIA
Chief Justice