Teitikai v Trustee for the Kiribati Protestant Church [2005] KIHC 54; 10-05 (21 October 2005)

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

High Court Civil Case No. 10 of 2005

Between:

URIAM TEITIKAI
Plaintiff

And:

REV BAITEKE NABETARI AS
TRUSTEE FOR THE KIRIBATI PROTESTANT CHURCH
Defendant

For the Plaintiff: Ms Taoing Taoaba
For the Respondent: Mr Glenn Boswell

Date of Hearing: 17 & 18 October 2005

JUDGMENT

The plaintiff, now an officer in the Ministry of Internal and Social Affairs, in 2001 and until June 2002 was, as an ordained minister, the Coordinator of the YESS programme of the Kiribati Protestant Church. In June 2002 the Church dismissed him on the grounds that he had taken moneys belonging to the Church. The Republic charged him with two counts of theft pursuant to Section 251 of the Penal Code. He was tried by Takabwebwe J and found guilty on one count. He appealed against the conviction. When the appeal came on for hearing the Solicitor General conceded it because he considered the charges to have been mistakenly laid: the plaintiff should have been charged not with theft but with conversion.

[4] The facts alleged however did not support a charge of theft under S.251, which deals with someone who “takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof”. The appropriate charge would have been one of conversion under S.271(1)(c) of the Code, which covers the situation where a person receives money on behalf of another, and fraudulently converts it to his own use. (Criminal Appeal No. 9/2004 Uriam Teitikai Appellant v The Republic Respondent).

The appeal had succeeded on a technicality. The Court of Appeal did not consider the substance of the appeal, whether any conviction could be sustained on the facts. After the Court of Appeal had allowed the appeal the plaintiff went on the radio saying he had been cleared.

The KPC publishes a weekly newspaper, “Mauri!”. In the issue of 27 August 2004, on the front page, appeared an article which the plaintiff complains is defamatory of him. The English translation, agreed by counsel to be accurate:-

Clarification from the AG’s office on Uriam Teitikai’s case.

According to what the Registrar to the High Court, David Lambourne had said, even though Uriam Teitikai had been released from the judgment of the Court of Appeal it does not mean he is not guilty of his charges. He said he is guilty.

A clarification from the AG’s office said Uriam had two counts of stealing the KPC’s money. He was found guilty on one count and not on the other.

Office of the AG said KPC can claim back its money from Uriam by suing him in the Civil Court. He also said the judgment of the Court of Appeal which released him, does not hinder KPC from processing its civil claim.

However, Mauri had talks with a number of lawyers, some have different views while others supported it.

A few days ago, Uriam made an announcement over Radio Kiribati, clearing himself from KPC’s money. Uriam, with his lawyer said he had been cleared from the judgment of the Court of Appeal which dismissed the High Court judgment.

However, KPC had the intention to clear up this case.

[Mr Boswell conceded that the publishers had not spoken to Mr Lambourne about the matter: the article is inaccurate in that regard.]

The plaintiff has taken these proceedings against the Rev Baiteke Nabetari as Trustee for the KPC. The Rev Mr Nabetari is the Moderator of the Church. The part of the article of which the plaintiff complains is:-

According to what the Registrar to the High Court, David Lambourne had said, even though Uriam Teitikai had been released from the judgment of the Court of Appeal it does not mean he is not guilty of his charges. He said he is guilty.

The defendant has not only defended the action but counterclaimed two sums the plaintiff is alleged to have converted, respectively $351.75 and $1,000. [A third claim for $2,237.54 was not pursued.]

Because the Court of Appeal did not consider the appeal on its merits, allowed it on a technicality, we shall never know whether or not the appeal would have succeeded after scrutiny of the facts and of the decision of Takabwebwe J. I should not rely on, even have reference to, the findings of my brother. I must consider the facts independently of all earlier considerations.

The defence is justification: that the plaintiff was guilty of conversion even though his appeal against his conviction for theft had been successful and even though the plaintiff has continued to claim his innocence.

There are two causes of action. The claim is for defamation and the counter claim for damages for conversion. The facts are common to both. There is no embarrassment in hearing claim and counter claim together.

In evidence-in-chief Uriam said the Court of Appeal had found him not guilty. He had taken successful proceedings against the Church for wrongful dismissal. The publication of the article came after his return to work in the Ministry: his work was affected as people were unwilling to work with him.

His only supporting witness was Nei Beia Inatio who described herself as a workmate, not a friend. Nei Beia said, because of the article, she keeps a close watch on Uriam and makes him account for everything.

In cross-examination Uriam said that there was no replacement for Nei Terauongo, his cashier when she left in 2001. Instead he appointed Betero Bebeia, his assistant Coordinator, to look after the accounts. Uriam asserted it had not been his responsibility to examine the accounts: that was the responsibility of KPC Finance.

Uriam sent his Programme Officer, Nei Kaitiro Moanibong, to the Line Islands. On Tabuaeran Nei Kaitiro collected $2,252.20 for YESS. By telmo she sent the money to Uriam as YESS Coordinator. Uriam admitted having received $2,252.20. He paid in only $1,910.45 to YESS. The balance went to expenses for youth and for the office. [I notice that the difference between $2,252.20 and $1,910.45 is $341.75, not $351.75 as pleaded in paragraph 9 of the counter claim. The precise amount matters little. In the computation of damages I shall use $341.75.]

Betero had been away at the time: when Betero returned Uriam accounted to Betero for the balance of $341.75. No receipts had been found for the money although Uriam said he explained to Betero how the money had been used and handed him receipts and a statement he had prepared.

Uriam collected a cash cheque for $2,870 from the Ministry of the Environment, a donation to help fund a workshop on re-empowerment of youth. Uriam gave Betero the cheque. “It seems that Betero had cashed cheque as we were in dire need of money”. The receipt which Betero wrote and which was left in the receipt book was for $1,870, $1,000 short.

In his letter of thanks to the Ministry Uriam said he mentioned the amount of the cheque (I have not seen the letter so cannot check that) but did not attach the receipt. As a rule in these circumstances a receipt is given for money received. The normal thing would have been for Uriam to attach the receipt to the letter which he says he wrote to the Ministry. Uriam did not attach it. I draw the strong inference that he deliberately withheld the receipt because as soon as it had reached the Ministry they would have noticed the discrepancy of $1,000.00 and queried it. I have seen a copy of the receipt (Exhibit D1). It is expressed to have been received from MESD for “Contribution for the workshop”. The contribution had been $2,870.00: the receipt has been written for only $1,870.00.

Uriam denied that Betero, having cashed the cheque gave him the cash. He did not ever receive any of the $2,870 in cash. He had “no knowledge of what happened to the $1,000: it’s missing. For Betero to account for”.

I have set out the plaintiff’s evidence but I was not much impressed by him. He prevaricated, giving long wordy replies to questions which should have been answered shortly and directly. Even before hearing the defendant’s witnesses I was hesitant to accept Uriam as a truthful witness.

The Church had four witnesses. The Rev Renata Noa is the Finance Secretary for the KPC. Uriam’s responsibility was to look after the youth work of the Church and to see that moneys were used correctly. Renata said Uriam would have known that every amount of money which came in had to be receipted immediately and its expenditure accounted for. I accept this: it is a matter of common sense: any person of reasonable intelligence and education – Uriam is both – should know that even without direction or training as a cashier. Renata said in Uriam’s job description all practices were explained including those concerning money.

Nei Terauongo Beniteri, Uriam’s cashier, went to Cuba for a leadership workshop. Before she went Uriam told her to hand over her duties to Betero: she did but had not given Betero any training.

Nei Kaitiro Moanibong, the Youth Officer, confirmed sending the money to Uriam by telmo from Tabuaeran, $2,252.20.

Betero Bebeia had been Uriam’s assistant Coordinator. Uriam, as Coordinator, appointed him to act as cashier. “Whenever I received moneys I made out a receipt immediately. I made a record of some but not all moneys I paid out”. The Coordinator gave him $1,910.45 as the youth money from Tabuaeran. “I wrote out receipt – on day I received money”.

As for the cheque for $2,870, Betero cashed it and gave the money to Uriam. Two days later Uriam “handed me back the amount shown on receipt” ($1,870). Betero did not notice the difference between the amount of the cheque he had cashed, $2,870 and the cash Uriam gave him. I was surprised at that: I put it down to slowness of intellect (I formed that impression of him when he was giving his evidence) not dishonesty. Betero put the cash in a locked drawer.

Can’t recall if I ever unlocked the drawer and took the money out. I can’t say what happened to the $1,870.

Some of the moneys from the Ministry were used to pay the caterers: Betero does not think he got a receipt from them.

Having heard evidence from both sides, I prefer the evidence of each of the four witnesses for the defendant to that of the plaintiff. In particular wherever Uriam’s evidence and Betero’s is contradictory I prefer that of Betero.

I mention especially what happened to the cheque for $2,870. I find that Uriam handed it to Betero who cashed it and gave the whole of the proceeds to Uriam who two days later gave him $1,870 which Betero receipted and locked in a drawer. I do not believe Betero kept for himself any of the moneys in dispute: any of the $341.75 or of the $1,000.

All this cannot be put down merely to slackness in keeping accounting records. It is too big, too obvious for that. Uriam has no credible explanation for one, the $1,000, and an unsatisfactory explanation for the other, the $341.75: all he can say of the latter is the receipts have disappeared. He cannot explain what happened to the moneys. He should be able to explain. The only explanation, that the $1,000 went to pay the caterers is unbelievable. The whole of the $1,000? Not a cent more and not a cent less? No balance? No receipt from anyone for any of it? I do not believe the explanation. Less unlikely but still quite unlikely is that the whole $341.75 was used (for purposes only vaguely suggested) without a receipt for any of it.

I find that Uriam knew the proper procedures for dealing with moneys in and out. The responsibility was his. Uriam made Betero the cashier. He was Betero’s superior officer. Uriam had the duty, as all superior officers have, to supervise his subordinate, to supervise Betero’s carrying out of his duties. Uriam was finally responsible for YESS money, not Betero. He cannot escape responsibility by being vague about receipts and by shuffling the responsibility on to Betero, an untrained subordinate. Uriam should have known, must have known that he was responsible. I do not accept Uriam as a truthful witness. On the balance of probabilities (and bearing in mind that “the more serious the allegation the higher the degree of probability that is required” Gatley on Libel and Slander, 8^th edition page 571 paragraph 1395) and this is a serious allegation, I find that Uriam converted both sums of money, $341.75 and $1,000 to his own use.

It follows that the defendant succeeds on the counter claim to the extent of $1,341.75.

What of the claim? I find Uriam converted the moneys. That is a finding on the balance of probabilities (sufficient in a civil action (Nishina Trading Co. Ltd v Chiyoda Fire and Marine Insurance Co. Ltd (1969) 2 QB 449 @ 464 per Edmund Davies LJ citing Cross on Evidence). That the plaintiff converted the moneys would be sufficient justification of the defendant if the statement had been merely that the plaintiff had converted the moneys. The statement goes further. The plain and obvious meaning is that the plaintiff is guilty of the crime of stealing. He has not been found guilty of that or any crime and must be presumed innocent.

It goes almost without saying that to assert a man is guilty of a crime holds him up to “hatred, ridicule or contempt” as the accepted phrase is. The statement complained is defamatory.

What, then, of damages? That I have found Uriam to have converted the moneys must very greatly reduce damages for defamation. The “sting of the charge” (32 English and Empire Digest paragraph 1339 note 405) is much less serious. I assess the plaintiff’s damages at $350.00.

The plaintiff succeeds on the claim in the sum of $350.00. The defendant succeeds on the counter claim in the sum of $1,341.75.

I shall hear counsel on the order I should make.

Dated the 21^st day of October 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice