Wate v Folotalu [1993] SBHC 30; HC-CC 241 of 1993 (23 November 1993)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 241 OF 1993

ANTHONY WATE

-V-

WALTER FOLOTALU

High Court of Solomon Islands
(Muria CJ.)

Hearing: 1 November 1993
Judgment: 23 November 1993

A. Radclyffe for Petitioner
T. Kama for the Respondent

MURIA CJ: This is an election petition brought by the Petitioner challenging the election of the Respondent who was the successful candidate at the last general election for the Baegu Asifola Electoral Constituency. At that election the Petitioner polled 254 votes while the Respondent polled 332 votes.

There are basically two allegations raised by the Petitioner against the Respondent. Both are allegations of corrupt practices.

The first allegation is that contained in paragraph 3 of the petition in the following terms:

3. "Your Petitioner further states that during the lection the Respondent was guilty of the corrupt practice of aiding and abetting the commission of the offence of personation contrary to Section 73 of the National Parliament Electoral Provisions Act 1980 (hereinafter called "The Act") in that he assisted his brother David Tome from Niu Rove who was not a registered voter to vote at the election at Sulufou polling station using the name of another man called David Makona of Foufalae Village who was in Auki on 26th May 1993 and that the said vote so recorded is void and ought to be struck off the poll."

In his evidence the Petitioner stated that at the time of voting at Sulufou, he saw David Tome, the Respondent's brother, went in to vote. According to the Petitioner, David Tome should not vote at Sulufou.

After David Tome voted, and after the close of the Poll, the Petitioner went to check with the Polling Assistant, Mr. Edward Bakale who told the Petitioner that David Tome used the name "David Makona" when be voted.

David Makona gave evidence and said that on 26 May 1993, he was at Gizo. He was registered to vote but because he was at Gizo at the time of election he did not vote.

Edward Bakale confirmed that the Petitioner asked him if David Tome voted. Edward Bakale further stated that David Makona's name was crossed out on the list of voters which showed that he either voted or someone voted under his name. He also stated in evidence that it was him who crossed the name "David Makona" from the list.

David Tome gave evidence and stated that his name was David Tome but his full name, he said was David Tome Olomea and that he came from New Rove.

According to David Tome Olomea there was also another person called David Tome who lived at Foufalae, and whose full name was David Tome Eteomea. David Tome Olomea is the Respondent's brother. There was no evidence to dispute that from the Petitioner.

The Respondent's brother was a registered voter. He was registered to vote under Foufalae village and the Polling Station was Sulufou. The other David Tome was not registered to vote and never voted.

The evidence before the Court given on behalf of the Respondent became clearer when the official List of voters of Foufalae (Exh. 9) was put before the Court. David Tome's name was clearly crossed off confirming that he voted at Sulufou Polling Station. The evidence of Edward Bakale who stated that he crossed out the name "David Makona" from the List of voters cannot be supported. There was no 'David Makona' on the list although there are names like "Johnson Makona" and "Makona Melarel" both of whom had not voted because their names had not been crossed out.

I accept the evidence of the Respondent's brother that he was registered as a voter at Foufalae Village and that he voted at Sulufou Polling Station which is supported by Exhibit 9. There is no evidence that the name "David Makona" had been used by the Respondent's brother or anybody during the voting at Sulufou on 26 May 1993.

The allegation of personation in this case lacks substance and therefore fails.

The second allegation against the Respondent is that of a corrupt practice of bribery. The evidence in support of this allegation came from Muriel Tate and Violet Fangai.

In her evidence, Muriel Tate stated that she saw the Respondent opened his brief case in Jasper's Bakery at Foufalae and took out a $10.00 note which was given to Jasper's wife whose name was Kosi to change. She stated that the Respondent divided the money in as follows - $5.00 to Futa, $2.00 to Edwin (Futa's husband), $1.00 to herself (Muriel) and 80 cents to her daughter (Joyce). She further stated that when the Respondent gave the money, he told them that they must vote for him and that his symbol was an "AXE". She also stated that Futa spoke out in support of the Respondent and stated that she would vote for her son, the Respondent.

Violet Fagai gave the same account in her evidence as that of Muriel Tate.

The Respondent's evidence was that when he was dropped off from the truck (Manuitolo's truck) at Foufalae on 17 April 1993 before 10.00 am, he went into the bakery where he met his uncle Edwin and his wife Futa. They had some chat and then Futa asked the Respondent if he brought anything for her from Honiara. She also asked if the Respondent could give her the loaves of bread he was holding.

The Respondent stated that in custom if a relative or someone close to him made such remarks, he must give something. The Respondent then, after saying he had not much money, took some money from his pocket and he gave them to Futa and her husband. The amount he gave was $7.00. When the Respondent gave the money to his uncle and his uncle's wife, Muriel and her little daughter were there looking. It would be an embarrassment in his custom not to give something to them. So the Respondent took the remaining $1.80 and gave it to Muriel who gave 80 cents to her daughter.

The Respondent denied that the money was given for the purpose of obtaining their votes at the election.

There was evidence from the Respondent that he had always helped Edwin and Futa because the two are related to him. He helped them to pay bride prices for their two sons (Jasper & Johnson). He helped Jasper and his wife last year when Japser's wife had problems with breast-feeding their child. He helped Edwin and Futa financially many times.

Evidence of the practice of giving gifts in custom was given by Sir Fred Osifelo who is well-recognised not only in Malaita, but in the country. He stated that the giving of gifts as done by the Respondent was in accordance with accepted customary norms of Malaita, including the Respondent's place.

The other evidence also given by the Respondent's relates to the time when he actually arrived at Foufalae. His Diary entry showed that he arrived at Foufalae on 17 April 1993 and not 17 May 1993.

Stephen Subuomea gave evidence confirming that on 17 May 1993 the Respondent was at Lagoe holding an election meeting. That was also confirmed by the letter written by the Respondent to Stephen (Exhibit 2).

Mr. Radclyffe who acts for the Petitioner rightly pointed out the difficulty faced by the Court when it comes to the question of what is and what is not a gift in accordance with accepted customary practices. This is really where the aid of those who are well versed with custom is essential. In this case I must record my gratitude to Sir Fred Osifelo for his assistance to the Court on this aspect.

In allegation of bribery it must be proved by evidence that the giving of money or gift to an elector or to some other person on behalf of the elector must be with the corrupt intention of inducing the elector to vote or refrain from voting. The standard of proof must be stricter than the normal civil standards, as I have said in Maetia -v Dausabea CC No. 266 of 1993 (Judgement given on 23/11/93) adopting Alisae -v- Salaka (1985/86) SILR and Manata & Others -v- Maetia CC No. 115 of 1984

I have considered all that had been put before the Court in this case both for the Petitioner and Respondent on the allegation of bribery. I have come to the conclusion that the allegation had not been made out to the required standard.

The result is that this petition fails and must be dismissed with costs.

I shall certify to H.E. The Governor-General that Walter Folotalu had been duly elected as the Member of Parliament for the Baegu Asifola Constituency.

(G.J.B. Muria)
CHIEF JUSTICE