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Baia v Attorney General [2025] KIHC 105; Civil Case 42 of 2020 (2 April 2025)

IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction
(South Tarawa)

HIGH COURT CIVIL NO: 42 of 2020

BETWEEN

MWAKURITI BAIA ____________________________ Plaintiff

AND

ATTORNEY GENERAL ________________________ 1^st Defendant

TEKEA RIKIAI _______________________________ 2^nd Defendant

Date of Hearing: 26 March 2025

Appearances: Ms Taaira Timeon for the Plaintiff

Ms Tumai Iaokiri for the 1^st Defendant

Ms Botika M McDermott for the 2^nd Defendant

RULING

AMTEN, J. – After the closing of the plaintiff’s side, counsel for the 1^st defendant, Ms Tumai Iaokiri (“Ms Tumai”), submitted a no case to answer. A discussion on the matter with counsels ensued, and Ms Tumai elects to make the submission.

Before moving on to the submissions, I just want to clarify that the 1^st defendant was named as the Attorney General, which is a misnomer. The real defendant is the Kiribati Police Service (“KPS”). The Attorney General is only acting in respect of the KPS. The Registrar should have corrected this error, and I am only hoping this is an isolated event.

In a nutshell, Ms Tumai submitted that the plaintiff has failed to establish her case on the balance of probability. In her rebuttal, she did not dispute that the 2^nd defendant was the employee of the 1^st defendant. She however, argued that there is no evidence that the 2^nd defendant was working at the time of the incident. She further argued that there was no evidence of injuries. She submitted that the plaintiff had failed to satisfy this court that the 2^nd defendant, at the time of the incident, was on duty.

Counsel for the plaintiff, Ms Taaira, on the other hand, argued that there is some evidence to link the 2^nd defendant to the 1^st defendant. There is evidence that when the incident occurred, the 2^nd defendant came out of his vehicle in half uniform. After talking with the plaintiff, he went back to his car and then reappeared in full uniform. She further argued that the time the incident occurred was within working hours. The test, she argued, is not on the balance of probability but on the sufficiency of evidence. She submitted that there is a case for the 1^st defendant to answer.

The law is clear in that a no case to answer submission can be made but must be regulated strictly. Unless the defendant elected not to call evidence, the submission of a no case to answer must not be entertained. On these premises, a dialogue was made with counsels, and it is the understanding of this court that Ms Tumai has elected to make a submission and not to call evidence. She was therefore allowed to make the submission.

The standard of proof of a no case to answer is not on the balance of probability; it rests on the sufficiency of evidence, meaning the plaintiff only has to show a prima facie case, and the defendant will be required to provide an answer. On what amounts to a prima facie case, I found comforting the decision of the Supreme Court of India in the case of Martin Burn Ltd vs R.N Banerjee^[1] when it said this:

“A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record.”

A simpler definition can be seen in General Electric Company of India Ltd. v. The Fifth Industrial Tribunal, West Bengal and Ors.^[2], where the Calcutta High Court stated:

"The expression 'prima facie' means at the first sight or on the first appearance or on the face of it, or so far as it can be judged from the first disclosure. Prima facie case means that the evidence brought on record would reasonably allow the conclusion that the plaintiff seeks. The prima facie case would mean that a case which has proceeded upon sufficient proof to that stage where it would support finding if evidence to the contrary is disregarded.”

Both cases stated precisely what prima facie is in the common law. I cannot find any other definitions elsewhere; hence my reach to the other part of the continent.

Bearing in mind the principles above, it is important for me to see the evidence of the plaintiff as it is. This means taking into consideration any evidence adduced from chief examination as well as those established during cross and re-examination to confirm if the evidence is still sufficient to support what the plaintiff seeks.

On the face value of the plaintiff’s evidence, there is evidence that at the time of the incident, the 2^nd defendant was in uniform. The uniform is evidence that he is employed by the 1^st defendant, and this is not disputed. There is also evidence that the time of the incident was in the morning at 11 am, which means this is within the normal working hours. There is also evidence that the plaintiff suffered injuries. Putting together these pieces, I find that there is sufficient evidence to support the case of the plaintiff and hence a prima facie case against the 1^st defendant.

Order: The submission by the 1^st defendant of a no case to answer is refused. The hearing shall proceed at a later date to be fixed by the court.

Dated this 2^nd day of April 2025.

.............................................
HON JUSTICE A. T. AMTEN

PUISNE JUDGE

^[1] 1958 AIR 79
^[2] 1990 (60) FLR 874 (Cal)