Inatio v Berina [2020] KIHC 18; Civil Case 48 of 2020 (31 July 2020)

IN THE HIGH COURT OF KIRIBATI 2020

CIVIL CASE NO. 48 OF 2020

IN THE MATTER OF THE ELECTIONS ACT 2019

AND

IN THE MATTER OF THE ELECTION FOR A MEMBER OF PARLIAMENT FOR THE CONSTITUENCY OF KURIA HELD ON THE 14^TH APRIL 2020

[IAON INATIO PETITIONER
[
BETWEEN [AND
[
[BANUERA BERINA RESPONDENT

Before: The Hon Chief Justice Sir John Muria

15 & 17 July 2020

Ms Kiata Kabure for Petitioner
Ms Taoing Taoaba for Respondent

JUDGMENT

Muria, CJ: Following the recent Parliamentary Election, the respondent was returned as the elected Member of Parliament for the Kuria Island Constituency. The Petitioner was one of the candidates who stood at the election and was unsuccessful. The petitioner has now brought this election petition against the respondent alleging corrupt practices on the part of the respondent.

Brief background

2. At the recent Parliamentary Election held in Kiribati three candidates stood for election for the Kuria Island Constituency. The respondent was declared winner at the First Round of voting on 14 April 2020. The results of the voting are shown as follows:

Banuera Berina 344 votes
Iaon Inatio 121 votes
Tom Robati Murdoch 162 votes

3. The respondent, having successfully stood for election, is now serving as MP for Kuria Island Constituency for his second consecutive term.

Default of Appearance by Petitioner

4. When the case was called at the commencement of the trial in this petition, only the respondent was present. The petitioner did not appear. As if there was nothing untoward or irregular about the petitioner’s non-appearance, Counsel for the respondent took no issue on the petitioner’s default of appearance. It is not for the Court to lead Counsel as to what to do. The rules are there to lead the parties and their Counsel on what to do.

5. In the Court’s view, the question of default of appearance by the petitioner is an important issue that must be dealt with in the light of section 47 of the Elections Act 2019. That section applies to election petitions and preserves the powers, jurisdictions and authority of the Court to deal with election petitions in the same manner as in civil cases: Toatu –v- Tiaeki [2020] KIHC 13; Miscellaneous Application 65 of 2020 (9 June 2020).

6. The words “as near as circumstances will admit” in section 47 clearly show that the High Court (Civil Procedure) Rules apply to election petition “as near as” circumstances will allow. Two such rules that are applicable are rules 5 and 6 of Order 38 regarding the proceedings at trial. The rules state:

“Default of appearance by defendant at trial

5. If, when a trial is called on, the plaintiff appears, and the defendant does not appear, then the plaintiff may prove his claim so far as the burden of proof lies upon him.
   

Default of appearance by plaintiff

6. If, when a trial is called on, the defendant appears, and the plaintiff does not appear, the defendant, if he has no counterclaim, shall be entitled to judgment dismissing the action, but if he has a counter-claim, then he may prove such counterclaim so far as the burden of proof lies upon him”.
   

7. The petitioner did not appear when the case was called nor was he present at any time during trial on 17 July 2020. The respondent was entitled under O.38 r6 to ask for judgment dismissing the election petition in default of appearance by the petitioner. Had the respondent done so, the Court would be obliged to dismiss the petition in this case.

8. The respondent in the present case, raised no objection to the petition being prosecuted nor did Counsel sought to dismiss the petition due to the default of appearance by the petitioner under O.38 r6. As a result the Counsel for the petitioner, despite the non-appearance of her client, the petitioner, proceeded to open the petitioner’s case and called witnesses. The respondent must be taken to have acquiesced in Counsel presenting the petitioner’s petition without the petitioner’s presence and calling witnesses to give evidence in support of his election petition against the respondent.

9. However, despite the acquiescence of the respondent to the petition being presented, the consequences of the default of appearance by the petitioner do not end there. The petitioner did not appear to present his case. He failed to prosecute his allegations of corrupt practices against the respondent. He is the petitioner who instituted the case against the respondent. The witnesses who purportedly gave evidence were in effect supporting a petitioner who failed to turn up in Court to present his petition. Consequently, the evidence given by Katimmwa Kauarekea and Takabiri Bwaewa amounts to nothing. Both witnesses have wasted their time and energy to come to Court only to learn now that the person who brought the case to Court and whom they support did not turn up to prosecute his case.

10. The Court was told that the petitioner came over from Kuria and he is in South Tarawa. The Court was also told that he deliberately did not want to appear in Court and that he has his reasons for not wanting to be present in Court. Perhaps he was not prepared to face his opponent in Court. Counsel informed the Court that she expressly advised the petitioner to be present in Court. Be that as it may, his default of appearance has fatal result in his election petition.

11. The respondent appeared in Court at the hearing of the election petition against him on 17 July 2020, and gave evidence in his defence. He called two other witnesses to support his case to rebut the allegations raised against him. As the petitioner defaulted in appearing to present his petition against the respondent in this case, the only evidence that is properly before the Court for consideration is that of the respondent and his witnesses. See Duryodhan –v- Sitaram & Others AIR 1970 All ER 1.

12. The case of Duryodhan –v- Sitaram, was a decision of the three members of the Full Bench of Allahabad High Court, India. It was necessary for the Full Bench of the Court to deal with the issue of Default of Appearance by the petitioner in an election petition due to conflicting decisions of two Single Bench Divisions of the Court. One Division held that the Court has power under the Court’s civil procedure rules to dismiss an election petition on default of appearance by the petitioner while the other Division held that the default of appearance by petitioner did not entitle the Court to dismiss an election petition.

13. Having considered section 90(1) of the Representation of the People Act, a provision similar to our section 47 of the Elections Act 2019, the Full Bench of the High Court held that the Civil Procedure Code, including the rules on dismissing an action on default of appearance of the plaintiff applied also to election petitions. The dismissal of the election petition due to default of appearance by the petitioner in Duryodhan –v- Sitram was affirmed by the Full Bench of the Court.

14. The case of Duryodhan –v- Sitaram also held that if the petitioner defaulted in appearing and the Court proceeded to hear the case on its merits, then the only evidence that the Court can properly hear and consider is that of the respondent. However, the Court would still have to dismiss the petition and the dismissal would remain in law a dismissal for petitioner’s default of appearance.

15. In the present case, the petitioner failed to turn up when his election petition was called. His default of appearance obliged the Court to dismiss his election petition under O.38 r6 of the High Court (Civil Procedure) Rules.

16. Further, the respondent’s acquiescence for the case to proceed despite the default of appearance by the petitioner, means that the only evidence available to the Court for consideration was that of the respondent. But as was pointed out in Duryodhan –v- Sitaram, any decision on such evidence alone “on serious matters, like corrupt practices, would be traversity of justice” so the better view ought to be that, where the Court dismisses the petition after hearing the evidence of the respondent on merits, the dismissal, as a matter of law, is a dismissal for default of appearance by the petitioner.

17. This is really the end of the petitioner’s case. He failed to turn up in Court to prosecute his petition against the respondent. Consequently, the petitioner’s election petition is dismissed for his default of appearance pursuant to O.38 r6 of the High Court (Civil Procedure) Rules.

18. However, for argument’s sake, and in case I am wrong on the application of O.38 r6 of the High Court (Civil Procedure) Rules 1964, I will proceed to consider the merit of petitioner’s election petition on the evidence before the Court. To that I shall now turn.

Allegations of corrupt practices

19. There are general allegations of corrupt practice made in the petitioner’s petition which were said could reasonably have affected the result of the election for the Kuria Island Constituency. What those generalized “corrupt and alleged practices” were, have not been stated in the petition. The Court cannot take cognizance of such general allegations.

20. As against the respondent, the two alleged corrupt and illegal practices raised against him and which are now before the Court are:

(i) the giving of $100.00 to one Katimmwa Kauarekea “to induce her to vote for the respondent”;
(ii) the giving of $3,800.00 to St Michael’s Church group “to induce them to vote for the respondent”.

21. The particulars of the two allegations are set out in paragraphs 9 and 10 of the petitioner’s amended election petition which state as follows:

“9. On or about 7/04/2020, one week before the first round of election, the Respondent visited Nei Katimmwa Kauarekea’s house, one of the voters, campaigning his political ideas, request her to vote for him in the upcoming election and gave her $100.00 note, more than the allowed amount under the Election Act 2019, to induce her to vote for him.

10. On or about 12/04/2020, two days before the first round, the Respondent attended St Michael group, who were also voters, and gave them $3,800.00, more than the allowed amount under the Election Act 2019, to induce them to vote for him.”
    

22. There is a further allegation of corrupt and illegal practice of giving $40.00 to one Aberaam Riteri and his wife “to induce them to vote” for the respondent. No evidence has been called to substantiate that allegation. That allegation as contained in paragraph 11 of the amended election petition is therefore dismissed.

Standard of Proof

23. Before I deal with the evidence on the allegations of corrupt practices raised in this case, I feel I should briefly deal with the question of standard of proof in a case where allegation of corruption is raised in an election petition.

24. It is true that the standard of proof in election petition cases is the same as that in civil cases. This test was applied in Teannaki –v- Tito [1996] KIHC 3; HCCC 30/94 (28 February 1996); Tatireta –v- Tong [2003] KIHC 1; [2003] 5 LRC 665 (15 October 2003) referred to by Counsel for the respondent. In Teannaki –v- Tito, reference was made to a decision of the Court of Appeal in Teiraoi Tetabea and Rutiano Benetito –v- Kabwebwenibeia Yee-On and 10 Others (1988) Civil Appeal No. 2 of 1988 which was also an appeal arising out of an election case. On the standard of proof, the Court of Appeal had this to say:

“On the hearing of an election petition, on the other hand, the procedure is as nearly as possible the same as that of an ordinary civil action, and the matters in issue need be proved only according to the civil standard, on the balance of probabilities. Evidence which would be sufficient to justify a finding by a judge hearing an election petition that a candidate had committed bribery would not necessarily be sufficient to support a conviction in criminal proceedings. The fact that on the hearing of an election petition a finding had been made that a candidate had been guilty of bribery would not have any relevance in criminal proceedings brought against that candidate in respect of the alleged bribery”.

25. The Court of Appeal pointed out that in “an election petition” the matters in dispute need to be proved only according to the civil standard, that is, on the balance of probabilities. That must be taken to be the position with regard to the standard of proof in “an election petition” in general. However, the Court went further and emphasized what the Court should do where there is an allegation of “bribery” against a candidate in an election petition.

26. The emphasis lies in the second sentence in the above passage from the Court of Appeal’s decision. To my mind, the Court of Appeal was not taking a light-hearted view of an allegation of bribery or corrupt practices for that matter, in an election petition. The Court thus went on to emphasize that in an election petition alleging bribery, the evidence must be “sufficient to justify” a finding by the Court that the candidate had committed bribery. I feel it would not be correct to simply view the decision of the Court of Appeal in Teiraoi Tetabea and
Rutiano Benetito –v- Kabwebwenibeia Yee-On as treating very serious allegations of corrupt and illegal practices in the same manner as other allegations in an election petition.

27. It will also be noted that the Court of Appeal was not considering an election petition in Benetito –v- Yee-On. The Court was dealing with an appeal against the conviction and sentence imposed by the High Court on the appellants. It was only in that regard that the Court of Appeal had jurisdiction to deal with the appeal in that case because section 60(4) of the Constitution forbids an appeal from any decision in proceedings under section 60(1) of the Constitution.

28. The emphasis made in Tetabea and Benetito –v- Yee-On can also be found in Kabaua –v- Nenem [2017] KIHC 14; Civil Case 4/2016 (17 March 2017;
James Vokia –v- Badeleley Devesi [1999] SBHC 29; HCSI – CC 254 of 1997;
Alisae –v- Salaka [1985] SBHC 6; [1985-1986] SILR 31 (4 April 1985) and
In re Menyama Open Parliamentary Election [1977] PNGLR 302.

29. In the recent case of Kabaua –v- Nenem referred to by Counsel for the respondent, the Court took the position that where an allegation of corruption is raised in an election petition, such an allegation must be established, on a higher standard of probability. That entails proving the alleged corrupt practice to the entire satisfaction of the Court.

30. The Court in Kabaua –v- Nenem applied the test set out in
James Vokia –v- Baddeley Devesi an election petition case decided by the High Court of Solomon Islands. In the latter case, the Court referred to a number of previous election cases including one Alisae –v- Salaka and said that:

“.... the Court considers allegations of corrupt or illegal practices as very serious and require higher degree of probability. Whether this standard can be described as “proof that is sufficiently clear to support such an allegation” .... Or as proof to the “entire satisfaction of the Court”, matters a lot. It is the degree of probability commensurating with the seriousness of the allegation that must be established. Certainly in allegations of corrupt or illegal practices there must be clear and cogent proof to satisfy the Court of such allegations. It is something more than balance of probabilities”.

31. The case of Alisae –v- Salaka followed the Papua New Guinea case of In re Menyamya Open Parliamentary Election where the Court stated that to uphold the petition alleging corrupt or illegal practices, the ground of it must be proved to the “entire satisfaction of the Court” or at least to “be sure” that the alleged corrupt practice has been made out. The case of Vokia –v- Devesi followed
Alisae –v- Salaka which in turn followed the Papua New Guinea case of
In re Menyamya. The case of Kabaua –v- Nenem applied the principles set out in the above cases as set out in Vokia –v- Devesi.

32. To buttress the need to distinguish the test in civil cases where allegations of corruption, fraud or illegal practices are made as opposed to other allegations of civil nature, such as negligence or breach of contract, Phipson on Evidence
(12^th Edition) at para 23 states as follows:

“The degree of probability which must be established will vary from case to case. The degree depends upon the subject matter. A civil court when considering a charge of fraud will naturally require for itself a higher decree of probability than that which it would require when asking if negligence is established. It does not adopt so high a degree as a criminal court even when considering a charge of a criminal nature; but still it does require a degree of probability which is commensurate with the occasion. Likewise a divorce court should require a degree of probability which is proportionate to the subject matter”.

33. The test to be applied, in an election petition, where allegations of corruption and illegal practices are raised, is the test set out in Kabaua –v- Nenem. That is the same test that must be applied in the present case.

Evidence

34. As to the allegation that the respondent gave $100.00 to
Nei Katimmwa Kauarekea to induce her to vote for him, the only witness was
Nei Katimmwa Kauarekea herself. Her evidence was that on 7 April 2020, the respondent visited her at her house, as part of his campaign. He informed her that he was keen in continuing his role as their Member of Parliament for Kuria and to help develop Kuria. She said in her affidavit evidence that before the respondent left, he gave her $100.00.

35. Again in her evidence in chief as contained in her affidavit, Nei Katimmwa never mentioned she supported Tom Murdoch’s candidacy nor did she mention that she did not support the respondent. It was in cross-examination that she stated that she supported Tom Murdoch and not the respondent.

36. Nei Katimmwa was adamant in her evidence in-chief that she was by herself when the respondent came to her house on 7 April 2020. Yet the evidence of the respondent, Tekim’ai Namoriki and Teauama Tierata, both in-chief and cross-examination, all stated that Teauama and Tekim’ai were also present. They all knew what the conversations between the respondent and Katimmwa were about. It was in cross-examination that Katimmwa changed her story and accepted that Teauama was also present. Again a little later in
cross-examination, she also accepted that Tekem’ai was also present and could hear what the conversation between herself and the respondent.

37. Tekim’ai always accompanied the respondent during his campaign in Kuria. He usually drove the respondent around on his motorcycle during the respondent’s campaign. On 7 April 2020, Tekim’ai accompanied the respondent to Katimmwa’s house. Teauama was also present. Tekim’ai stated that the meeting and conversations between Katimmwa and the respondent lasted about a half-hour.

38. In his evidence, Tekim’ai stated that Teauama also came and joined them. Tekim’ai’s evidence is that Katimmwa was happy, having listened to the respondent’s speech at Santa Maria Mwaneaba on Sunday 5 April 2020 and she (Katimmwa) would support and vote for the respondent. Paragraphs 6-13 of Tekim’ai’s affidavit evidence narrated what took place at the conversation between Katimmwa and the respondent:

“6. Katimmwa was saying that she would vote for Banuera. She said the same thing twice, when Banuera first arrived at her house and just before Banuera left her house.

7. Just before Banuera left her house she talked with Banuera about her life of prayer. She spent her time praying the Holy Rosary and that she received all her needs as a result of her prayers.
   
8. She also mentioned that she was praying also for guidance as to whom to vote for. She said her prayers were answered when she heard what Banuera said in the mwaneaba, that Banuera was an answer to her prayers.
   
8. She also mentioned about the fact that she and her husband had no time for themselves as they spent their time fundraising for the church. They had not time to earn money for themselves.
   
9. She mentioned they had no money and she must attend the church function for Easter celebrations.
   
10. Just as she finished talking Banuera then thanked her. He told her he would shake hands with her. Banuera must have given her something for I heard her say –
    

“Thank you very much Banuera. This must be the result of my praying the rosary”.

11. Banuera then told her what he gave her had nothing to do with his campaign. It was his way of showing his gratitude to her only for everything she had shared with him.
    
12. We then left her house.
    
13. The impression I had was that Katimmwa would have voted for Banuera even if we had not visited her house. I was convinced when listening to her, even before Banuera gave her what she thanked him for, that she would vote for him”.
    

39. It was suggested to Tekim’ai in cross-examination that he was prone to speak favourably of the respondent because he was raised by the respondent. He did not deny that he grew up in the respondent’s house and that he looks upon the respondent as a father. However, his evidence cannot be viewed simply as a concoction in favour of the respondent for looking after him. His evidence shows facts that actually occurred at the meeting and conversations between Katimmwa and the respondent at which he was present together with Teauama.

40. Then we have the evidence of Teauama Tierata who lives with Katimmwa and her husband in their house. Her evidence is that she was with Katimmwa and the respondent during their conversations in Katimmwa’s house on 7 April 2020. When the respondent arrived, Teauama was in the kitchen, but she soon came and joined them. She heard everything said during the conversation between Katimmwa and the respondent.

41. Teauama confirmed that the respondent was accompanied by Tekim’ai when he came to Katimmwa’s house on 7 April 2020. It must be noted that at first, Katimmwa denied that Teauama and Tekim’ai were present with her and the respondent on 7 April 2020. Later she changed her story and agreed that Teauama was present but not Tekim’ai. As the evidence shows, Teauama, Tekim’ai and the respondent all confirmed that Teauama and Tekim’ai were present.

42. Teauama recounted the conversation between Katimmwa and the respondent in which Katimmwa stated that she trusted the respondent and that she would vote for him. Katimmwa also affirmed and made up her mind to support the respondent.

43. Their conversation continued and Teauama stated that the next thing Katimmwa touched on was about fundraising which had just finished and that they had no money to enable them to join the Church Easter celebrations. Katimmwa confided with the respondent of her faith in Our Lady for all her assistance and that Our Lady would provide for all her needs. Teauama left and soon after that the respondent also left.

44. In her evidence in-chief in her affidavit, Teauama recounted Katimmwa showing a $100 note to her husband Uakeang who then took the money to
Tom Murdoch. This evidence was never challenged at all.

45. Teauama ended her evidence expressing dismay at Katimmwa’s action because the day before the respondent came to their house, Katimmwa visited the respondent and his wife at their house. She spent the whole day with them from morning until late in the afternoon. Being a strong supporter of
Tom Murdoch once, Teauama said that she did not understand why Katimmwa would visit the respondent and his wife and spent almost the whole day with them.

46. The respondent gave evidence that on 5 April 2020 he attended a function at Santa Maria Maneaba at Oneeke. He made a speech to the gathering. Katimmwa was also there. The next day 6 April 2020 Katimmwa visited the respondent and his wife at their house. She stayed with them and had breakfast and lunch with the respondent and his wife. In the afternoon, the respondent’s wife and Katimmwa went together to the maneaba for Easter celebrations rehearsal. Katimmwa spent most of the day with the respondent and wife until she returned to her place.

47. Katimmwa has not mentioned in her affidavit evidence any of those events and circumstances. Perhaps she has forgotten them or deliberately omitted to include them in her affidavit. Having learned from the respondent and his two witnesses, and clearly uncontroverted by Katimmwa, of the background circumstances leading to the giving of the $100.00 to her by the respondent, the corrupt picture sought to be painted by her or the petitioner of the respondent seems to evaporate.

48. Observing Katimmwa’s seemingly change of heart toward the respondent’s candidacy, the respondent decided to visit her the next day
7 April 2020. What transpired at the meeting and conversation between Katimmwa and the respondent were already stated in the evidence of Tekim’ai and Teauama. They are reiterated in the respondent’s affidavit evidence also.

49. Having listened to Katimmwa about her prayers for her financial needs and trust in the intercession of Our Lady, the respondent felt he could be an answer to her prayers. He only had two $100 notes with him. He gave her one of the $100 notes. The circumstances surrounding the giving of the $100 can be seen in the affidavit evidence of the respondent, especially in paragraphs 33 to 39:

“33. She then talked about the church fund raising in which she and her husband had been very much involved.

34. She also touched on the help she had been receiving from
    Our Lady and how she had ceaselessly prayed the Holy Rosary. She said the Holy Rosary had been her constant help and through the help of Our Lady she had been receiving all her needs.
    
35. She then talked about the coming Easter celebrations and how she was not financially ready for it. But she trusted Our Lady that she would provide for all her needs.
    
37. I grew up believing in the help of Our Lady as well. When she was saying all those things to me I felt the Lord had caused me to visit her house so that I could be an answer to her prayers for her financial need. I felt it would not be good for me, as a Christian, if I left her without doing any good.
    
38. I knew I only had 2 $100 notes. I felt it was an answer to her prayers that I share with her the remaining money I had on me.
    
39. When she finished talking I took her hand and gave her $100.00. I told her it was my way of thanking her for everything she had shared with me and that it had nothing to do with the election”.
    

50. In his oral evidence, especially in the cross-examination, the respondent reiterated that the money he gave was not to influence her to vote for him. Rather it was in response to her financial needs which she raised with the respondent and not out of corrupt motive. Further, the circumstances surrounding the giving of the $100.00, as shown by the evidence of Tekim’ai, Teauama and the respondent, out-weigh any suggestion that the respondent gave the money to Katimmwa with any corrupt intention.

51. The contents of Katimmwa’s affidavit and the tone borne out from her evidence were simply that the respondent, a candidate in the election for the Kuria seat in Parliament, came to her house on 7 April 2020, asked her to vote him and gave her $100 so that she could vote for him. She was not prepared to share or she deliberately avoided disclosing the background circumstances as to how and why the respondent gave her the $100.00. She was only bent at constructing a picture of the respondent as a candidate who was prepared to bribe his way into securing the seat for the Kuria seat in the House. Unfortunately for her, when her story is pitted against the evidence of Tekim’ai, Teauama and the respondent, the veracity of her story and the picture that she painted of the respondent, practically fell into disarray.

52. As to the allegation of corrupt practice in respect of the $3,800.00 which was said to have been paid by the respondent to the St Michael Church Group in Kuria, the evidence of Takabiri Bwaewa simply does not merit much consideration, other than to say that the evidence lacks merit. There is nothing in the evidence, both in the affidavit and oral, of Takabiri that can demonstrate even on simple civil standard of balance of probability, let alone on the test laid down in Kabaua –v- Nenem, that the $3,800.00 was the respondent’s money and that he paid it to the St Michael Church group and that he did so corruptly.

53. The evidence is that the $3,800.00 was money belonging to St Michael Church Group and the respondent merely was giving it back to them. The money was not some general gift from the respondent to the St Michael Church group. The amount handed over to the Church group was counted later and it came to $3,800.00 which represent the exact amount that the Church Group was entitled to. There is no evidence whatsoever to show that the money did not belong to the St Michael Church group. It was simply assumed that since it was election campaign time, any money paid, given or handed over from the respondent who was a candidate, must be corrupt money.

54. The respondent’s evidence is that the money belonged to St Michael Church group and it was meant for purchasing of corrugated iron roofing from Tokaraetina Trading in Tarawa. The money was received by TKT in 2019. The type of iron roofing that TKT meant to sell to the Church Group ran out and the new iron roofing that was available was very expensive, TKT offered to return the money to the Church Group toward the end of 2019.

55. The respondent was already in Kuria and during the campaign, the Chairman of St Michael enquired about the iron roofing. The respondent explained to the Chairman what had happened. The respondent then arranged with his staff to collect the money from TKT and forward it to Kuria. The money was sent over on 12 April 2020 by plane to Kuria. The money contained in an envelope was then handed over to the Chairman of St Michael Church Group.

56. No stint of evidence was produced by Takabiri to counter the evidence of the respondent as to the circumstances surrounding the $3,800.00. Without any evidence to suggest otherwise, it would be wrong to simply assume that the money belongs to the respondent who paid it over to St Michael Church Group to induce them to vote for him. I reject Takabiri’s evidence.

57. The long and short of it is that the allegations raised against the respondent in this case are thin vale of accusations that are grounded in thin-air of assumptions. They have no basis and they lack substance.

58. Counsel for the petitioner made references to three cases,
Lilo –v- Tanangada [2017] SBHC 31; HCSI-CC 451 of 2014 (30 November 2017); Martin Boutu –v- Taunga Smith, Tawita Temoku [2003] KIHC 35; Civil Cases 02 and 03 of 2003 (16 March 2000) and Kabaua –v- Nenem (above). In
Lilo –v- Tanangada, there were more than 20 allegations of bribery and treating. Only four allegations were proved based on admissions by the first respondent and/or his agent (Campaign Manager). In the present case, there was no admission made by the respondent and the evidence of the two witnesses for the petitioner simply do not display any substance.

59. The case of Boutu –v- Taunga was concerned with allegations of bribery and treating. In that case there was evidence to prove treating (provision of food) and bribery (giving of the sleeves of cigarettes) which was not “mweaka, moanei or ririwete”. Those allegations are not the subject of the present petition.

60. I have referred to the case of Kabaua –v- Nenem earlier in this judgment, in particular, on the standard of proof. I need not repeat it here.

61. I need to deal with the proposition relied on by Counsel for the petitioner that “the giving away of gifts which was more than $20.00 was not allowed within the campaign period”. Counsel cited no provision of the Elections Act 2019 to support her proposition. Counsel however relied on the case of
Boutu –v- Smith (above) which held that the giving away of “three sleeves of cigarettes” was not “mweaka” since “mweaka” was defined as a maneaba gift of block of tobacco containing about 30 sticks of tobacco or its equivalent in cash of not more than $20.00. A gift to the maneaba of three sleeves of cigarettes was clearly in breach of the law in that case.

62. In the present case, the $100.00 given to Katimmwa by the respondent was not a maneaba gift. It was given to Katimmwa at her house. So the $20.00 mweaka gift rule clearly does not apply. So the petitioner, in so far as the $100.00 is concerned in this case, must prove by evidence before the Court that it was paid to Katimmwa by the respondent with the intention to induce her to vote or refrain from voting. As I have already found, Katimmwa’s evidence fails to prove that the $100 given to her was intended to induce her to vote for the respondent. Her evidence fell into pieces when pitted against the evidence of Tekim’ai, Teauama and the respondent.

63. As to the $3,800.00, that was not a gift to the maneaba. So the $20.00 maneaba gift rule has no place in it. It was not even the respondent’s money given to the maneaba. That was money belonging to St Michael Church group, sent over from Tarawa on 12 April 2020 to be returned to St Michael Church group.

64. The law is crystal clear as to the “mweaka” rule. It is an “offering to a Maneaba” in accordance with the customs and traditions of Kiribati. The proviso to section 32 states:

“Provided further that any person making a customary offering to a Maneaba, referred to an I-Kiribati as “mweaka”, “moanei” or “ririwete”, with the sole intention of showing for the customs and traditions of Kiribati shall not be guilty of bribery”.

65. Again the definition of “mweaka, moanei or ririwete” states that in accordance with Kiribati custom it is the giving away or offering the maneaba gifts or its equivalent in cash of not more than $20.00. The restriction refers to the “maneaba gifts”, not a gift given at the house or church or on the road. It is wrong to say that a candidate at campaign time is restricted to spending only $20.00. If that were to be so, no candidate will ever leave his house to go for campaign. That is not democracy.

66. It is not surprising that Counsel could not cite any provision in the elections Act 2019 that limits a candidate’s campaign expenses to $20.00. There is simply no provision under the Act that puts a limit to the amounts which a candidate or a political party can spend in campaigning in Kiribati. Some jurisdictions do provide some limits or accountability processes on campaign expenses by candidates or political parties. In Kiribati, campaign expenses (other than the “mweaka” or $20.00 practice) appear to be open-ended under the present Elections Act 2019.

Conclusion

67. I find this election petition case somewhat disturbing. In the first place, the petitioner having instituted the petition, deliberately absented himself from attending trial. The petitioner’s conduct is unacceptable. Petitioners and Respondents, like plaintiffs and defendants, in civil actions, would do well to take note of O.38 rr 5 and 6 of the High Court (Civil Procedure) Rules.

68. Secondly, the two witnesses who gave evidence in support of the petition were sent to fight the case for the petitioner who refused to join them in Court despite being advised to do so. Little that the petitioner realizes that his two witnesses were not able to establish the case for him, despite the best of their efforts.

69. Consequently, on the evidence before the Court, I find that the petitioner has failed to prove the two allegations of corrupt practices raised against the respondent. The petitioner’s election petition is without substance and it is dismissed. Whether dismissed under O. 38 r6 of the High Court (Civil Procedure) Rules or on the merits, it is dismissed. The Court hereby determines that Banuera Berina was duly elected as Member of Parliament for the Constituency of Kuria. A certificate to this effect shall be issued to the Electoral Commission.

70. Costs of this petition to be paid by the petitioner to the respondent, such costs to be paid out of the security for costs deposited into Court by the petitioner in this case.

Dated the 31^st day of July 2020

SIR JOHN MURIA
Chief Justice