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Tiorim v Arbera [2025] KIHC 104; Civil Appeal 05353 of 2024 (2 April 2025)

IN THE HIGH COURT OF KIRIBATI
Civil Appellate Jurisdiction
(South Tarawa)

HIGH COURT CIVIL APPEAL NO: 2024-05353

BETWEEN

TIAON TIORIM __________________________________ Appellant

AND

TOOTIRIN ABERA ______________________________ Respondent

Date of Hearing: 9 April and 11 April 2025

Appearances: Ms Taoing Taoaba the Appellant

Ms Ruta Uriam for the Respondent

RULING

AMTEN, J. – This is an appeal against the decision of the Aranuka Magistrates’ Court in its civil jurisdiction in case no AraCiv 02/24 delivered in June, the 3rd 2024. During the mention of this appeal, the respondent's counsel, Ms. Ruta, informed the court of their intention to file a cross-appeal against the same ruling.

The appellant, who was the plaintiff in the original case, initiated legal action against the respondent, who was the defendant, on the grounds of defamation. The appellant claimed that the respondent falsely stated that he struck one Toreka on the head with a shovel. In her defense, the respondent contended that she had heard this information from an individual named Uee and clarified that she did not mention the appellant's name. The appellant presented four witnesses, while the respondent did not call any witnesses. After considering the arguments from both sides, the court ruled in favor of the appellant, awarding him $150.

The appellant contested the awarded amount, leading to his appeal. Through his counsel, he argued that the award was inadequate. He based his appeal on two main points:

1. The court did not take into account the extent of the harm, resulting in an unjustifiably low award.
2. The court neglected to consider the specific categories of damages when determining the award, leaving the source of the amount ambiguous.

In support of the appeal, Ms Taoing, counsel for the appellant, argued that the court had failed to evaluate the nature and severity of the defamatory statements, resulting in an inadequate understanding of their seriousness. The statements are serious as the respondent alleged a criminal offence, imputing the appellant as a criminal. Yet, the court only awarded $150.00.

Additionally, she asserted that the court overlooked the various categories of damages available to the appellant. The awarded amount of $150 lacks specificity; if it accounts for the court fee of $80, the actual compensation would only be $70. She emphasized that the court failed to recognize the potential for awarding general damages, punitive damages, and other forms of compensation. Had these factors been considered, the awarded amount would likely have been greater.

She prayed that this court quashed the award of $150 and, in its stead, increase the amount.

In her response, Ms. Ruta contended that the minutes did not provide any evidence regarding the harm the appellant has experienced or is likely to experience. As the plaintiff, the burden of proof lies with him, and he has not fulfilled this obligation. Therefore, the court is justified in making its award based solely on the evidence presented.

Regarding the consideration of additional categories of damages, Ms. Ruta reiterated that it was the appellant's responsibility to specify these in his plaint. He must present evidence to support such claims. It is not the court's duty to identify other applicable categories of damages if they have not been formally pleaded.

In her rebuttal, Ms. Taoing reminded this court that defamation is categorized into two types: defamation per se and defamation per quod. The first type, defamation per se, does not necessitate evidence of damages, as the law assumes that harm has occurred. In contrast, defamation per quod requires the plaintiff to demonstrate the existence of harm or damage. She contended that the appeal pertains to the former category, defamation per se. The statements made suggested that the appellant was a criminal, alleging that he committed an offense by striking Nei Toreka on the head with a shovel.

After considering the arguments presented by both counsels regarding the appeal, I am inclined to dismiss it. While it is accurate that the defamatory statements implied criminal behavior, which is inherently actionable and necessitates a presumption of damages, there is no indication that the court acted otherwise. The court determined that the respondent did indeed make the defamatory comments and held her accountable at that moment. It did not require the appellant to present evidence of any harm or damage before establishing the respondent's liability.

In my view, the assertion that the court did not grant a suitable amount reflecting the seriousness of the defamatory statements is unsubstantiated. The court evaluated testimonies from both parties, considered the claimed amount of $1,500.00, and assessed various factors related to the respondent, including her apologies. All of these elements are pertinent to the determination of the award. It was only after this thorough consideration that the court determined compensation at $150.00.

Regarding the court's decision not to apply the various categories of damages before finalizing the award, I find no validity in this argument. The court has the authority to grant damages either as a lump sum or under different categories of loss. In this instance, the court opted for the lump sum approach, which falls within its discretion. Unless there is evidence indicating that this discretion was misused, the award as a single sum should be upheld.

Regarding the cross-appeal, Ms. Ruta contended that the respondent was deprived of natural justice, as she was not given sufficient time to prepare her defense or to summon her witness. Ms. Ruta expressed her concern that when the case was initially brought before the court, it moved directly to a hearing without inquiring whether the respondent required additional time to prepare her defense or if she wished to call any witnesses.

In response, Ms. Taoing contended that the respondent has been given the chance to present her case. If she feels unprepared, it is her responsibility to communicate that in court. This also pertains to her second argument; if she has witnesses, she must notify the court. While the court may inquire, it is not required to do so. Therefore, the claim of a violation of natural justice is unfounded.

After considering the arguments presented by both counsels regarding the cross appeal, I have decided to dismiss the cross appeal as well. I concur that the respondent had the opportunity to present her case in court. If she required witnesses, it was her responsibility to notify the court accordingly, and she had ample time to do so. Having observed the appellant accompanied by his witnesses, she should have requested her own if she deemed it necessary. While the court can provide assistance, it is not obligated to inform every party in each case about the need for witnesses. It is the responsibility of the parties to come prepared for the hearing. If they are unprepared, they have the option to request a different date from the court. These rights are always available, but it is up to the parties to take advantage of them.

In conclusion, both the appeal and the cross appeal are rejected.

There is, however, a minor point that merits attention. Upon reviewing the transcripts, I observed that the plaintiff, who is the appellant, was given two chances to present his case. The first opportunity occurred at the outset of the proceedings, and the second followed the defendant's presentation of her argument. This approach is rather atypical and constitutes a clear procedural error. Nevertheless, it does not materially impact the outcome of the appeal, as no new evidence was introduced during the second opportunity. Notably, the defendant was also allowed to cross-examine the plaintiff.

Parties to bear their own cost.

Dated this 2^nd day of April 2025.

.............................................
HON JUSTICE A. T. AMTEN

PUISNE JUDGE