Kakoroa v Uriam [2003] KIHC 175; Civil Case 01 of 2003 (14 February 2003)

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

High Court Civil Case 1 of 2003

Between:

MOTETI KAKOROA
Petitioner

And:

ROTITE URIAM
Respondent

For the Petitioner: Mr Banuera Berina
For the Respondent: Ms Emma Hibling

Date of Hearing: 5, 6 & 7 February 2003

JUDGMENT

These proceedings arise out of the parliamentary elections in 2002. The first round of voting was on 29^th November and the second on 6^th December.

Maiana returns one member to Parliament. The results on 6^th December:-

Maiana

Vote casted 1045

Candidates Votes

1. Moteti Kakoroa 361

2. Rotite Uriam 382

3. Teiwaki Ariera 301

On 3^rd January 2003, within time, a petition was received at the High Court on behalf of Moteti Kakoroa praying for a determination that the Respondent, Roteti Uriam, was not duly elected. The prayer is based on the complaints in the petition as it was amended on 28^th January:-

3. That contrary to section 24(a) Election Ordinance 1977 he bribed electors and/or contrary to section 25(a) Election Ordinance he treated electors in that he:
   
   • (i) On or about 28 October 2002 at the Ririere maneaba in Bubutei Nuka, Bubutei village, Maiana the Respondent gave $60 in cash to the chairman of the unimane for the purpose of buying 1 kilogramme of yangona (kava). The Respondent also gave to the chairman of the unimane money in excess of $100 in respect of the village generally.
     
   • (ii) On or about 27 October 2002 at the Uentabouea maneaba in Bubutei Meang, Bubutei village, Maiana the Respondent gave to the chairman of the unimane the sum of $60 for the purpose of buying yangona. In addition he gave the sum of $200 for the purpose of buying food for the women and children to eat in the maneaba.
     

The relevant sections in the Elections Ordinance:-

Part III

ELECTION OFFENCES

Corrupt practices

19. (1) No election shall be valid if any corrupt or illegal practice is committed in connection therewith by the candidate elected.

(2) Where on an election petition it is shown that corrupt or illegal practices or illegal payments committed or made in reference to the election for the purpose of promoting or procuring the election of any person thereat have so extensively prevailed that they may be reasonably supposed to have affected the result, the Court may declare his election, if he has been elected, to be void and he shall be incapable of being elected to fill the vacancy for which the election was held. ......

Persons to be deemed guilty of bribery

24. The following persons shall be deemed to be guilty of bribery within the meaning of this Part –
    
    • (a) every person before or during an election who directly or indirectly, by himself or by any other person on his behalf, gives, lends, or agrees to give or lend, or offers, promises or promises to procure or to endeavour to procure any money or valuable consideration to or for any elector or to or for any person on behalf of any elector, or to or for any other person, in order to induce such elector to vote or refrain from voting, or corruptly does any such act as aforesaid on account of any elector having voted or refrained from voting at any election; .........
      

Persons to be deemed guilty of treating

25. The following persons shall be deemed to be guilty of treating within the meaning of this Part –
    
    • (a) every person who corruptly, by himself or by any other person, either before, during or after an election, directly or indirectly gives, provides or pays, or promises to give, provide or pay, wholly or in part, the expense of giving or providing any food, drink, entertainment or provision to or for any person, for the purposes of corruptly influencing that person or any other person to vote or refrain from voting at such election, or on account of that person or any other person having voted or refrained from voting at such election; ......
      

"Before or during an election", the phrase in section 24 (and slightly different in section 25) means the period commencing from the date the Electoral Commission issues a notice of election under section 10 until the date when the final result has been declared.

The Electoral Commission issued notice of election on 14^th October. That makes 14^th October the crucial date. If the Petitioner were to prove on the balance of probabilities conduct improper under the Elections Ordinance on or after 14^th October then the Petitioner would succeed.

I can find with confidence that the Respondent did make the gifts in the two maneabas of which the Petitioner complains. The Respondent gave evidence to that effect:-

Money while at Bubutei North to answer request. Gave my speech – gave wrong name of maneaba, mentioned Bubutei South. Fined for saying wrong name: money for iangkona and for food. $260.00 in all, seeing number of people who came in maneaba. Bubutei central – required for iangkona and food - $200.

In the maneaba at Bubutei North he was fined to provide iangkona. $60 would have been enough for one kilogramme of iangkona powder. It may have been appropriate to have added something more to provide food for those who did not drink iangkona.

In the other maneaba at Bubutei Central, Beiatau Tekaai, the MC, requested money for iangkona and food.

It is the custom that a guest fined in a maneaba has an obligation to pay. The Respondent gave in all $260 at Bubutei North and $200 at Bubutei Central. If the gifts were given during the election then the Respondent was guilty of offences under the Electoral Ordinance. He gave much more than necessary to pay the fines, leading to the inference that he was acting corruptly. "Corruptly" is defined in Stroud's Judicial Dictionary (4^th edition) as "with wrongful intention". The Respondent would have had the wrongful intention of inducing people by his gifts to vote for him.

Such gifts during the election would, pursuant to section 19(1), have made the election invalid and a fresh election for Maiana necessary.

The crucial question is, "when were the gifts made?"

The dates alleged in the amended petition are "on or about 28^th October" for Bubutei Nuka and "on or about 27^th October" for Bubutei Meang.

Many in Kiribati, from my observation and experience, do not set much store by calendar dates. They have difficulty in remembering by the calendar when things have happened. Some witnesses had the difficulty. My strong impression of the witnesses for the Petitioner, though, was that, even if they were certain of nothing else, they stuck doggedly to the dates,
27^th October at Bubutei North and 28^th October at Bubutei Central: so much so as to give rise to a suspicion of collusion.

The Petitioner, Moteti, did not speak of Rotite's activities on 27^th or 28^th October. On 4^th October he said he had met Rotite on the wharf at Betio: they had both been seeing off MV "Teitinraoi" about to leave for Maiana.

Apart from the way in which the Petitioner's witnesses stuck to the dates there is another puzzling feature of the evidence. Ataona Tabwakea of Bubutei North did not straight away write up the minutes of the meeting on the 27^th October. He did not write them until the 3^rd November. He said he was waiting until he had Rotite's money from the chairman. As a rule he wrote the minutes immediately. More than the delay, it is obvious looking at the minutes that the date "27/10/03" has been inserted at a time different to the writing of the rest of the minute. Ataona prevaricated: in cross-examination he admitted he wrote in the date a week before giving evidence: that is how he made the mistake in the year: he wrote it in after he knew of the Petition and had spoken to the Petitioner.

Ataona remembered a fight outside the maneaba during the meeting:

Namouaa a member of group: at the meeting: village warden. Fight outside maneaba during meeting. One had knife. Namouaa went out to put one in prison. I didn't go out.

Ataona was sure the meeting had not been on the 6^th October.

The Petitioner's witnesses all were sure the meetings had not been on the 6^th or 7^th October. To the contrary the Respondent's witnesses were just as certain the meetings had not been on 27^th or 28^th October but three weeks earlier on the 6^th and 7^th October.

Namouaa Makin is the village warden at Bubutei North. During Rotite's meeting on 6^th October he had broken up a fight outside the maneaba. He arrested the drunken culprits. He made a note of the date – unfortunately he did not produce it: he said he had left it on Maiana – in case the unimane should ask him about it.

Beiatau Tekaai imposed the fine on Rotite at the meeting at Bubutei Central. It was Monday 7^th October. He fixed the date as being three days after a school committee meeting normally held on the first Friday in the month.

The Respondent denied that he had been on the Betio wharf on 4^th October: he had gone to Maiana on 19^th September. On 4^th October he was in the village of Raweai. He produced a small note book, about the size of a pocket diary but not a diary. He had borrowed the note book from his daughter in September: in it he wrote a list of the villages he was to visit on Maiana, after he had made the arrangements to visit them. He finished visiting maneabas on 8^th October. The list:-

September Village

25^th Wednesday Tebikerai

26^th Thursday Tekaranga

27^th Friday Tematantongo

29^th Sunday Aobike

30^th Monday Tebanga

October Village

1^st Tuesday Temangaua

2^nd Wednesday Toora

3^rd Thursday Tebiauea

4^th Friday Raweai

6^th Sunday Bubutei Meang

7^th Monday Bubutei Nuuka

8^th Tuesday Bubutei Maiaki

Ms Hibling, for the Petitioner, put it to the Respondent that he had made the list for the purposes of the hearing. The Respondent denied it. Looking through the entries in the note book, before and after the list, the probabilities are that the lists were made in September. Assuming the list to be genuine, then the Petitioner must be mistaken in his recollection that he had seen the Respondent on the wharf in Betio on 4^th October.

Rotite said that he visited all the villages on Maiana:-

Started from North. On Maiana have to start from head of whale, first village at North, Tebikerai. Went to the maneaba in a village. I make arrangements beforehand. ....... Noted in diary Bubutei North on Sunday 6 October: fine noted in book and name of person imposing fine: money for iangkona and food for children or non-drinkers. Bubutei central on Monday 7 October: fined, asked for iangkona and money for food. Beiatau. Last village Bubutei South – 8 October Tuesday – required for hot drink and biscuits.

Rotite remembered the fight outside the maneaba during the meeting at Bubutei North.

Confirmation of the practice of moving from north to south had come from Kaaraiti Kabiriera, a witness for the Petitioner:-

On Maiana if one wants to visit the maneabas one must start at the north and move south. Rotite would know that custom. Not sure if it would be bad luck (to go other way).

The anniversary of the maneaba at Bubutei South was on 25^th October. Celebrations for an anniversary go on for four days. The whole village is expected to take part. The Petitioner acknowledged this:-

Custom relating to celebration of anniversary of maneaba. ------ Anniversary biggest celebration for village: involves all people from village. Respondent from Bubutei South – anniversary 25 October – celebration lasts at least four days: first three for old and young men: fourth day for women. ----- Can ask permission to leave to do one's own affairs. Respondent is a person campaigning and can ask permission. A man can leave while the celebrations are continuing. The glory of the day is that everyone in village is there. But teachers have to go and teach. A person of village would avoid seeking permission to leave if he could.

Rotite said that he and his wife were present for the four days from 25^th October to 28^th October. If he were, then he could not have been at Bubutei North on 27^th October nor at Bubutei Central on 28^th October. There are two straws in the wind inclining me to accept that Rotite stayed at Bubutei South for the four days. First, it was his own maneaba and he should be at the celebrations, especially when he was a candidate for election looking for support. It is bad form to be absent, even with permission, for any part of the celebrations: a candidate does his best not to offend voters. Secondly, it would have meant backtracking, going from south to north, to visit the north and central maneabas on 27^th and 28^th October.

Confirmation that he and his wife were at the celebrations for the whole time came from the witness Nei Bikentaiti Ietaake who lives at Bubutei South:-

Date of anniversary in October - 25^th. I was there. Rotite and his wife there on 25. In maneaba. Normal program for celebration. Not allowed to leave maneaba. Unimane – put garlands on them, ataeinimane there as well to eat. Unimane offered food – three days for unimane and ataeinimane: women's day fourth day. Rotite there for the three days for the (men) and on fourth day as well. Rotite's wife there as well. They didn't ask permission to leave on any of those days.

The Petitioner bore the burden of proof of his complaints on the balance of probabilities. There is a straight out clash over dates between the Petitioner and the Respondent. Both sides cannot be right: one side is wrong. I have found that the evidence for the Respondent – particularly the notes in the note book and that he and his wife were at Bubutei South from 25^th to 28^th October – the more credible. I prefer the evidence of the Respondent and his witnesses. I cannot find that the Petitioner has discharged the onus of proof. Rather the reverse: the meetings were probably on 6^th and 7^th October.

It follows that the Respondent cannot be found to have been acting corruptly. Notice of the election had not been given on 6^th and 7^th October. He could make, on 6^th and 7^th October, whatever gifts he liked. The Respondent did not make the gifts during the election.

The petition is dismissed.

Dated the 14^th day of February 2003

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE