Toone v Beia [2004] KIHC 274; Civil Case 69 of 2003 (17 December 2004)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT ABAOKORO, NORTH TARAWA
REPUBLIC OF KIRIBATI

High Court Civil Case 69 of 2003

IN THE MATTER OF THE ELECTION ORDINANCE CAP 23B AND THE ELECTIONS OF THE COUNCILLOR FOR MARENANUKA WARD NORTH TARAWA

Between:

TATAKE TOONE
MOANIBWA TEMARENA
Petitioners

And:

TEBABANE BEIA
Respondent

For the Petitioners: Ms Taoing Taoaba
For the Respondent: Mr Aomoro Amten

Date of Hearing: 17 December 2004

JUDGMENT
(Ex Tempore)

This is a petition protesting the election of Nei Tebabane Beia as councillor for Marenanuka Ward for the Eutan Tarawa Council. The election was held on 18 September 2003. It is agreed that 64 valid votes wee cast for Marenanuka Ward. The result declared by the Electoral Officer was that Nei Tebabane had won by 34 votes to 30 for her opponent Arinoko Maritino.

The petition protested that seven named persons were registered to vote and did vote even though they did not live in Marenanuka ward: they should not have been registered.

I heard the petitioner’s case on South Tarawa and this morning have heard the Respondent and her witnesses. By this time the number of registrations in dispute had fallen to six.

The proviso to Regulation 25 under the Elections Act:

Provided that the Electoral Officer shall not declare any candidate to be elected unless the number of votes cast in favour of that candidate is in excess of one-half of the total number of ballot papers counted in accordance with regulation 19.

It follows that in this election the successful candidate needed at least 33 votes – one vote more than half of 64.

At the beginning of the adjourned hearing this morning Mr Amten conceded that two of those registered had not been entitled to be registered. They voted and we do not know for whom they voted: it is a secret vote: they could have noted for either candidate. That means we cannot be sure that N. Tebabane received at least 33 votes. She may have had only 32.

That is sufficient to decide the result of the petition without having to consider the evidence regarding the other four whose registrations were challenged.

N. Tebabane’s election was void. There must be a fresh election for the ward.

THE HON ROBIN MILLHOUSE QC
Chief Justice