Berina v Inatio [2020] KIHC 12; Miscellaneous Application 64 of 2020 (3 June 2020)

IN THE HIGH COURT OF KIRIBATI 2020

MISCELLANEOUS APPLICATION NO 64 OF 2020
(ARISING FROM HIGH COURT CIVIL CASE NO. 48 OF 2020)

IN THE MATTER OF THE ELECTIONS ACT 2019
AND IN THE MATTER OF ELECTION FOR ONE MEMBER OF PARLIAMENT FOR THE CONSTITUENCY OF KURIA HELD 14 APRIL 2020

[BANUERA BERINA, elected Member of
[Parliament for the Constituency of Kuria Applicant/Respondent
[
BETWEEN [AND
[
[IAON INATIO Respondent/Petitioner

Ms Taoing Taoaba for Applicant/Petitioner
Ms Kiata Kabure for Respondent

MISCELLANEOUS APPLICATION NO 69 OF 2020
(ARISING FROM HIGH COURT CIVIL CASE NO. 48 OF 2020)

IN THE MATTER OF THE ELECTIONS ACT 2019
AND IN THE MATTER OF ELECTION FOR ONE MEMBER OF PARLIAMENT FOR THE CONSTITUENCY OF KURIA HELD 14 APRIL 2020

[IAON INATIO Petitioner
[
BETWEEN [AND
[
[BANUERA BERINA, elected Member of
[Parliament for the Constituency of Kuria Respondent

Before: The Hon Chief Justice Sir John Muria

2 June 2020

Ms Kiata Kabure for Petitioner
Ms Taoing Taoaba for Respondent

JUDGMENT

Muria, CJ: These two Miscellaneous Applications, Miscellaneous Application 64/20 and Miscellaneous Application 69/20, both arising out of HCCC 48/20 were heard together. The substantive case, HCCC 48/20 is an election petition brought against the respondent who won the seat for Kuria Constituency at the recent Parliamentary Election. In this judgment, I will refer to the parties as the “Petitioner” and “Respondent” as in the Election Petition itself.

2. In Miscellaneous Application 64/20, the respondent seeks an order to strike out the election petition filed against him. The grounds relied upon are that the petition discloses no reasonable cause of action and secondly, the claim in the petition is scandalous and vexatious. The application is supported by the affidavit of the respondent himself.

3. The Respondent’s case for striking out is centred on paragraphs 9, 10 and 11 of the Petition. It is submitted by Ms Taoaba that the allegations in those paragraphs do not disclose a cause of action in this case. The allegations in those paragraphs are allegations of corrupt practices.

4. Subject to proof, of course, on the part of the Petitioner, the allegations in my view do raise arguable concern and thereby meet the test in Austpacific –v- Attorney-General and Arobati –v- Kiribati Shipping Services. The allegations may not be so elegantly pleaded, but it would not justify striking them out as such.

5. The better course to take would be for the Respondent to ask the Petitioner for “further and better particulars” as in the usual pleading procedure in a civil case. This is envisaged in section 47 of the Elections Act 2019. Upon receipt of the further and better particulars, the Respondent would then be in a position to file Defence or Answer to the Petition.

6. The Respondent, however, had filed a Response or Answer to the Petition on 25 May 2020. As the Respondent had not requested “further and better particulars”, it must be taken that the Respondent accepted the averments contained in paragraphs 9, 10 and 11 of the Petition as amounting to a reasonable cause of action, necessitating an Answer or Response from the Respondent. The Respondent’s application for striking out the Petition as disclosing no reasonable cause of action, would be otiose having now filed a Response to the Petition.

7. The Respondent’s application for striking out the petitioner’s Petition must be declined.

8. The Petitioner’s application Miscellaneous Application 69/20, seeks amendments to his Petition. The amendments now sought by the Petitioner now provide further particulars to the three paragraphs 9, 10 and 11, in the Petition originally complained of by the Respondent. In the Court’s view, in the interest of justly resolving this matter, the amendments should be allowed.

9. The Petitioner’s application for amendment was filed after the Respondent had already filed his Response to the original Petition. The Respondent must, therefore, be allowed to file amended Response if he so wishes.

10. Although the Respondent’s application for striking out is denied and the Petitioner’s application for amendment is granted, the circumstances of this case justify each party to bear its own costs. The Respondent’s application was brought about by the lack of particularities in the allegations in paragraphs 9, 10 and 11 of the Petitioner’s Petition. So the Petitioner cannot be given costs in those circumstances. In the same vein, the Petitioner has, by his application for amendments, regularized the deficiencies complained of by the Respondent in his original Petition. So no costs should be awarded to the Petitioner, even if he succeeded in his application for amendments.

11. ORDER: 1. Respondent’s application Miscellaneous Application 64/20 for striking out denied.

2. Petitioner’s application Miscellaneous Application 69/20 for amendments of his Election Petition granted.

3. Respondent is given liberty to file Answer or Response to the Petitioner’s Amended Election Petition.

4. No order s to costs.

Dated the 3^rd day of June 2020

SIR JOHN MURIA
Chief Justice