IN THE HIGH COURT OF KIRIBATI 2020

HIGH COURT CIVIL CASE NO. 46 OF 2020

		[ETEAMA TIAEKI					
		[MOIAREREI ATAUEA			PETITIONERS
		[
BETWEEN	[AND
		[
		[DR TEUEA TOATU				1ST RESPONDENT
		[DR KAUTU TENAUA			2ND RESPONDENT
		[BETERO ATANIBORA			3RD RESPONDENT

Before:	The Hon Chief Justice Sir John Muria

7 July, 18 & 19 August 2020

Ms Taoing Taoaba for Petitioners
Ms Elsie Karakaua for 1st Respondent
Ms Kiata Kabure for 3rd Respondent

JUDGMENT

Muria, CJ:	At the recent Parliamentary Election the following candidates proceeded to the second round of election on 22 April 2020 for the Constituency of Abaiang, with the votes casted for each of them:

			Tekena Tiroa				924
			Arimaere Tambwereti			523
			Dr Teuea Toatu			         1,128
			Dr Kautu Tenaua			         1,025
			Betero Atanibora			        	974

2.	The three successful candidates are Dr Teuea Toatu (1st respondent), Dr Kautu Tenaua (2nd respondent) and Betero Atanibora (3rd respondent).  They were declared duly elected by the Electoral Commission soon after the counting closed.

3.	The petitioner, aggrieved by the election results, lodged this election petition on 6 May 2020 against all three respondents.  However, on 1 July 2020, the petitioner withdrew the election petition, in so far as it is against the second respondent, Dr Kautu Tenaua.  The petitioner maintains his election petition against the first and third respondents.

4.	The result of the election petition being withdrawn against the second respondent means that this Court must dismiss the election petition in so far as it is against the second respondent and confirm that he was duly elected as a Member of the Maneaba ni Maungatabu for the Constituency of Abaiang.  It is so determined and confirmed and a certificate to that effect should be issued to the Electoral Commission.

Allegations

5.	As the petitioner’s election petition continues against the first and third respondents, I shall now proceed to set out the allegations levelled against the two remaining respondents.  The petitioner sets out his allegations in general in paragraphs 5 to 8 of his election petition, namely:

“5.	The subject election was not a valid election as it involves corrupt and illegal practices committed by the respondents’ agents and/or the respondents themselves who were declared candidates for the second round of election.

6.	The subject election therefore did not provide a fair and free opportunity for the election of the person that the majority might prefer.

7.	By virtue of the extent of the corrupt and illegal practices made for the purpose of promoting and procuring the election of the Respondents, the election may be reasonably considered to have been affected in its result.

8.	The Respondents personally and through their agents committed one or more corrupt and illegal practices in connection with the election contrary to the Elections Act 2019”.

6.	As I have said, the above allegations are general in nature.  The particulars of the allegations are set out in paragraphs 9 to 15 of the petition.  I shall set them out, in so far as they relate only to the first and third respondents.

7.	Against the first respondent, the particulars of the allegations are set out in paragraphs 9 and 10 of the petition as follows:

“9.	Dr Teuea Toatu on Monday the 20th April 2020, two days before the second round of election provided one packet of half kilo Yagona to Takarano Church members for the purposes of procuring or promoting his election by Takarano Church members.  The half kilo packet of Yagona is valued $50 or more.

10.	On the night of Tuesday 21 April 2020, a day before the election, the 1st Respondent, Dr Teuea Toatu through his supporter Tiimi Kabuakaatarawa, provided one packet of half kilo to St Tiantaake Group in Takarano village, another group for the Catholic Church for the purposes of procuring or promoting his election by Takarano Church members.  The half kilo packet is valued $50 or more”.

8.	As against the third respondent, the particulars of the allegations are set out in paragraphs 14 and 15 of the petition and they are as follows:

“14.	On Tuesday evening, a day before the second round of election, Betero Atanibora provided a half kilo packet of Yagona to the people attending one funeral in Tuarabu village for the purposes of procuring and promoting his election by the members of that family.  The packet of half kilo Yagona was valued at $50 or more.

15.	On Wednesday the 15 April 2020, a day after the first election result had been announced, Betero Atanibora provided to the village members of Takarano a number of packets of half kilo Yagona for the purposes of promoting and procuring his election by the village members of Takarano”.

9.	Common in the particulars of the allegations against the first and third respondents was the claim of supply of “Yagona” during the election campaign period.  The claim in these allegations is the use of “Yagona” by the respondents to procure and/or promote their election.  We will deal with the evidence on each of the allegations against each of the respondents.  But first, I need briefly to deal with the question of standard of proof in an election petition where allegations of corrupt practice are raised.  To that I shall now turn.

Standard of Proof

10.	I have dealt with the question of standard of proof in election petition cases, in particular, where allegations of corruption or corrupt practices are raised against winning candidates in an election, in 
Inatio –v- Berina [2020] KIHC 18; Civil Case 48 of 2020 (31 July 2020).  I have also referred to the other cases which dealt with the similar allegations from Kiribati as well as from other courts in the Region.  I therefore do not intend to repeat what I have already said about the question of standard of proof in allegations of corruption in election petition.

11.	To this end, I need only recount what this Court said in paragraphs 29 to 30 of this judgment in Inatio –v- Berina, which are as follows:

“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 not.  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”.”

12.	It is suffice only to reiterate the point that in an election petition where allegations of corruption or corrupt practices are raised against successful candidates, there must be clear and cogent proof, on the evidence before the Court, so as to satisfy the Court of such allegations.  This standard is very proper in my view, since allegations of corruption or corrupt practices lie above the normal civil standard of proof on the balance of probability and below the criminal prosecution standard of proof beyond a reasonable doubt.  The seriousness of the allegations of corruption or corrupt practices must therefore be met with a higher standard of proof to the entire satisfaction of the Court, falling short of the criminal standard of proof.

The Law

13.	As correctly referred to by Counsel for the petitioner the law applicable is that set out in section 27 of the Elections Act 2019.  The said provision provides as follows:

“27(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 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”.

14.	The two subsections must be read together as a whole in order to show that law provides that the petitioner has to prove the actus reus (the actual acts of corrupt or illegal practices), the mens rea (the intention or the purposes of acts done) and the effect (the extensive prevalence of the acts impacting on the results of the election).  The petitioner must do so on the evidence adduced before the Court.  It cannot be simply assumed.  See Kabaua –v- Nenem [2017] KIHC 14; Civil Case 4 of 2016 (17 March 2017).

15.	The general principle must be that the winning candidates at a general election are chosen by the will of the majority of the electors and ought not to be lightly removed from their seats in the House.  The petitioner has that heavy burden of proving the alleged corrupt practices brought aainst them to justify their dethronement.

Evidence

16.	On the two (2) allegations of corrupt practices against the first respondent, Dr Teuea Toatu, the evidence in support of the petition came from Kaotibiira Teaoti, Tebao Itinmarawa, Kautoa Taaua, 
Beia Betero and Teaonana Kautoa.  I will deal with each allegation against the first respondent separately.  I have set out the allegations in paragraph 7 above, in this judgment.  The first allegation is that the first respondent provided ½ kilo Yagona to Takarano Church Members for the purposes of procuring or promoting his election.

17.	The evidence of Kaotibiira Teaoti is that on the night before the election day which was 22 April 2020, Tiimi came and gave a packet of Yagona to him (Kaotibiira).  The Yagona was said to be for his Church group.  There was no evidence from Kaotibiira to show that the Yagona was from the first respondent.  What Kaotibiira said in his affidavit was that Kautoa, Bwerenteata and Maere told him that Tiimi told them that the Yagona came from the first respondent.  Apart from the obvious hearsay aspect of that evidence, there is simply no support for the suggestion that the first respondent supplied the Yagona as alleged by Kaotibiira.  The evidence of Kaotibiira is rejected.

18.	Then we have the evidence of Tebao Itinimarawa.  His evidence was that he went to Tokoriri’s house to collect Yagona.  The first respondent was there but he was busy talking to a Councillor from Ribono Village when Tebao went to collect the Yagona from Tokoriri.

19.	Basically, Tebao’s evidence is that there was an argument between Tekabwaara and Ioane and they reconciled.  So they decided to go and get Yagona.  They rang Tokoriri who confirmed that he had Yagona belonging to the Church Fundraising Group.  The Yagona belonged to the Group and managed by Tokoriri.  The Yagona was obtained and taken to the Kava Bar where they all shared in the evening after work on the Church house.

20.	There is absolutely not a stint of evidence from Kaotibiira or Tebao to even suggest that the Yagona was given by the first respondent.  When the evidence of the first respondent, Tokoriri, Tiimi and Bwebweari is pitted against the stories of Kaotibiira and Tebao, the picture becomes clear.  It is a picture painted by the petitioners’ witnesses that Yagona drinking in Abaiang during the election campaign period must be presumed to have been done for the purpose of supporting candidates.  So that even having a normal social Yagona session for reconciliation purposes must be assumed that it was an electioneering event just because it was done during election time.  That cannot be right.  The evidence of Tebao is rejected.

21.	The evidence of the first respondent is that he never supplied Yagona to induce people to vote for him.  He published his position and many have heard it, including Tebao who confirmed in Court of the first respondent’s position that “the giving of Yagona to induce voters was unlawful”.  The first respondent, in his evidence, denied giving Yagona to Tebao for the Church group.  Tokoriri supported the first respondent’s evidence and so is the evidence Tiimi and Bwebweari who both stated that they had not taken any Yagona from the first respondent to give it to the Church group or any other person.

22.	The evidence of Teonana Kautoa adds very little to support the petitioners’ case.  Teonana acknowledged that Tokoriri was responsible for the Church group’s Yagona which Tokoriri had been selling out to people.  Teonana then made the general proposition that Tokoriri had been giving away free Yagona to people since the first respondent arrived in Abaiang.  There is no basis for such statement especially since by her own evidence she agreed she had never seen the first respondent gave any Yagona to Tokoriri.  The evidence of Teonana is without substance and is rejected.

23.	The other two witnesses called to support the Petitioner’s case were Beia Betero and Kautoa Taaua.  First, the evidence of Beia Betero states that the first respondent has no land in Abaiang.  That evidence is clearly not true because the first respondent produced a Certificate of Title to a land he owns at Tuarabu in Abaiang.  The land is described as Taborio 269-0/1/1 located at Tuarabu, Abaiang as shown in the Land Registration of Abaiang.  This is the first sign that he is not a truthful witness.

24.  	Secondly, like Teonana, Betero was also bent at making assumption.  He said that it was common knowledge that the Yagona which Tokoriri gave out to people were not from the Church group but that it was from the first respondent.  He produced no evidence to demonstrate the basis of the so-called “common knowledge” that he referred to.  This is pure assumption and his evidence is rejected.

25.	Kautoa Taau’s evidence produced no link between the Yagona which he said was drunk two days after the election and the first respondent.  He agreed he did not know if the first respondent gave the Yagona or not.  He said he heard it from Tiimi.  The evidence of Tiimi was that he never told Kautoa that the Yagona was from the first respondent.

26.	I reject the evidence of all the witnesses who testified in support of the Petitioner’s case against the first respondent.  As such I do not find it necessary to dwell on the evidence of the first respondent and his three witnesses, Tokoriri, Tiimi and Bwebweari.  However, it would be a remiss of the Court if I do not deal with the basics of the evidence of the first respondent and his witnesses.  I shall turn to that now.

27.	The first respondent gave evidence and denied supplying Yagona to registered voters to induce them to vote for him.  As clearly shown by the evidence of the petitioner’s witnesses there is not a single evidence pointing to the suggestion that the first respondent supply Yagona to the Takarano Catholic Church members for the purpose of procuring or promoting his election.

28.	He expressly made his position known to the people that he was not supplying Yagona to anybody since “it would be unlawful to do so”.  Again the first respondent’s evidence on his expressed position regarding supply of Yagona had not been rebutted by any of the petitioner’s witnesses.

29.	The evidence of Tokoriri Tiimi and Bwebweari, have not been shaken at all.  They were firm in their evidence that the Yagona drank by the Takarano church group belonged to the Church Fundraising Group, managed and issued by Tokoriri.  There is simply no evidence whatsoever before the Court to point to any suggestion that the Yagona drank by the Takarano Church group on the alleged dates came from the first respondent.

30.	I find the two allegations of corrupt practices brought by the petitioner against the first respondent lack substance, without merit and unsustainable.  They are dismissed.

31.	I now deal with the two allegations against the third respondent, Betero Atanibora.  The first allegation alleges that the third respondent provided ½ kilo Yagona to the people attending funeral at Tuarabu Village, the day before the second round of election, to procure his election.  The petitioner’s witness on this allegation was Kautoa Taaua.

32.	Apart from being muddle-up with his dates, Kautoa’s evidence was largely hearsay.  He never saw the third respondent brought Yagona to the people at Kabure’s house.  He said that he only heard it from others.  The court cannot rely on such evidence.

33.	On the second allegation that the third respondent went to Takarano and provided Yagona to the Takarano Village on Wednesday 15 April 2020, to procure his election, the evidence of the third respondent supported by Baraniko Metutera is that on 15 April 2020, the third respondent was at Tanimaiaki Village and had not gone to Takarano Village at all on that date.  Kautoa later changed his story and said it was on 16 April 2020.

34.	The evidence of Kabure Tiinoa, before the Court clearly shows that it was Kabure who provided the Yagona for those he invited to his house.  He and others were supporters of the former Member of Parliament, Tetaake Kwong.  He and his group had Yagona as they listened to the third respondent made his campaign.  Kabure welcomed the third respondent to his Village, so that he and his people could listen to the third respondent.  The third respondent had nothing to do with the provision of Yagona during his time with Kabure and his group.

35.	Teatiruru Taumwaon’s evidence does not advance the petitioner’s case any further.  In his affidavit, he said that it was the third respondent who gave the Yagona to those attending the funeral at Tuarabu Village.  In his evidence in Court, especially in 
cross-examination, he retracted what he stated in his affidavit, and said that he did not see the third respondent gave the Yagona but that he only heard it from Iotita.  Neither the petitioner nor the respondent called Iotita as a witness to clarify the position.  Nevertheless, the discrepancy in Teatiriru’s evidence must now stand unresolved.  That is not helpful to the petitioner’s case because Teatiruru becomes an unreliable witness.

36.	The evidence of Taanu Tokitebwa put Teatiruru’s evidence to rest.  It is implicit in the petitioner’s case, that Taanu was a simple watchman for the Catholic Parish with very meagre resources and who could not afford to buy Yagona.  The evidence shows otherwise.  Apart from his salary as a Watchman, Taanu also had a bakery.  He produced his Business Licence.  In addition, he also earned his income by cutting copra.  He also distributed Yagona in Abaiang.

37.	In his evidence in court, Taanu confirmed that on the date in question, he was the one who supplied the Yagona to Iotita.  The third respondent never gave Yagona to Iotita.

38.	I dealt with the evidence of the witnesses.  I need briefly only to deal with the third respondent’s evidence.  Like the first respondent, the third respondent Betero Atanibora, appeared in Court and gave evidence in his defence.  He denied the two allegations brought against him.  His denials are supported by his witnesses, Baraniko, Kabure and Taanu.

39.	On the evidence before the Court, the two allegations brought against him, lack substance.  Like the case against the first respondent, they are all based on the assumption that because it was election time, all Yagona drinking sessions during the election campaign in Abaiang were engineered and promoted by the winning candidates to procure their successful election.  It is the evidence produced in Court that matters and produces results, not assumptions.

40.	I reject the evidence brought on behalf of the petitioner against the third respondent.  The claims of corrupt practices contained in the two allegations brought against the third respondent are without substance and are dismissed.

Default of Appearance

41.	Ms Karakaua of Counsel for the first respondent has raised the issue of the petitioner’s non-appearance at the hearing of his election petition.  Ms Taoaba of Counsel for the petitioner has informed the Court that the petitioner was present in Court until the case against the second respondent was withdrawn.  Counsel for the first respondent did not pursue the point any further.

42.	As pointed out in Inatio –v- Berina [2020] KIHC 18; Civil Case 48 of 2020 (31 July 2020), default of appearance by the petitioner at the time the trial was called can be fatal to the petitioner’s case.  The default must be dealt with at the commencement of trial: O.38 rr 5 and 6, High court (Civil Procedure) Rules 1964.

43.	In the present case, the Court accepts the position as put to the Court by Counsel, that the petitioner was present at the commencement of trial.  In any case, if he was not so present, the respondents raised no issue on the matter and the trial has proceeded to its conclusion.  There is nothing further that needs to be addressed on the point.

Conclusion

44.	Ms Taoaba of Counsel for the petitioner submitted that the evidence for the petitioner has proved the allegations of corrupt practices brought against both the first and third respondents.  With respect, the evidence from all the witnesses called for the petitioner had not shown any instance where the first or third respondent gave Yagona or procured the supply of Yagona to Tiimi or Catholic Church group or Kabure or to the people at Takarano Village or those attending the funeral at Tuarabu Village, at least not on the evidence before the Court.

45.	The Court is being asked to draw a conclusion that the respondents were distributing “giveaways” Yagona and free drinks in return for votes.  Such a conclusion, in the present case, would be without evidence and therefore would be baseless.  

46.	The only conclusion that properly can be made, as Counsel for the first and third respondents submitted, is that there is no substance in the allegations of corrupt practices brought against the two respondents in this case.  The petitioner has failed in his election petition against the respondents.  His petition is dismissed.  The Court determines that the respondents are duly elected as Members of the Maneaba ni Maungatabu for the Abaiang Constituency and a Certificate to this effect shall be issued to the Electoral Commission.

Costs

47.	The petition against the first and third respondents having been dismissed, both the first and third respondents must have their costs of the election petition brought against them.  Such costs to be paid out from the security for costs deposited by the Petitioner in this case.

48.	Order:

	(1)	Petition dismissed.

(2)	The first respondent, Dr Teuea Toatu, and third respondent, Betero Atanibora, second respondent 
Dr Kautu Tenaua against whom the election petition was withdrawn, are determined to be duly elected Members of Parliament for Abaiang Constituency.

(3)	A Certificate shall be issued to the Electoral Commission that Dr Teuea Toatu, Dr Kautu Tenaua and Betero Atanibora have been so duly elected.

(4)	Costs of the first and third respondents to be paid out of security for costs deposited.

(5)	The second respondent is also entitled to costs to be taxed, if not agreed.

Dated the 1st day of September 2020

SIR JOHN MURIA
Chief Justice