Ulufa'alu v Saemala [1993] SBHC 31; HC-CC 204 of 1993 (10 December 1993)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 204 of 1993

BATHOLOMEW ULUFA'ALU

-V-

FRANCIS JOSEPH SAEMALA

High Court of Solomon Islands
(Muria CJ.)

Hearing: 8, 9 10, 11 and 12 November 1993
Judgment: 10 December 1993

A. Radclyffe for Petitioner
T. Kama for the Respondent

MURIA CJ: This is an election petition brought pursuant to section 81 of the National Parliament Electoral Provisions Act 1980.

At the May 26, General Election this year, the Respondent was elected Member of Parliament for Aoke-Langa Langa Constituency having polled 1138 votes while the Petitioner polled 959 votes. The difference was 180 votes. The Petitioner brought this petition on a number of grounds set out in the petition.

At the hearing of the petition, the Petitioner called a number of witnesses. The Respondent gave evidence and also called a number of witnesses.

In his submission at the end of the hearing of the evidence, Mr. Radclyffe, however, sought to rely mainly on the grounds contained in paragraphs 3, 4, 5, 6, 10 and 12 of the petition. I will deal with each of these grounds in turn.

Ground 3.

In ground 3, the Petitioner alleges breaches of sections 15 to 18 of the National Parliament Electoral Provisions Act 1980. The allegations are that Forms B were not used to registered some voters in Aoke-Langa Langa Constituency. Instead, the registration officers took down voters names and entered then onto the Form C Lists.

The Petitioner further says that the Forms C had not been published so as to bring to the notice of persons who were entitled to be registered. Consequently, the Petitioner says, section 18 of the Act which allows appeal period against the Voters List had not been allowed to operate.

It has also been alleged that the Form C, List of Voters, for Aoke-Langa Langa was tampered with by unauthorised people who were employed by the Malaita Province.

The evidence relied on by the Petitioner on these allegations came from George Waleka, Sanisi Bobby and Paul Kenioriana who was the Election Manager and who was also the Registration Officer before the election.

Waleka's evidence shows that while he issued Forms B during the registration of voters, he also had people registered to vote without the Forms B being signed. His evidence was that at Koalia, Laulasi, Su'u/Afele and Fodoru he simply obtained the names of the people from the Chiefs of those places. He later entered those names in the Forms B. According to Waleka about 60 people were registered in this manner.

Chief Sanisi Bobby of Koalia confirmed that George Waleka obtained the names of the people from him. This was during the registration period. Chief Sanisi Bobby also stated that when he saw the List (Form C) published in April this year, he saw the names of those people he gave to George Waleka.

Paul Kenioriana gave evidence that the Lists of Voters, Form C, were published. They were posted up outside the Auki Post Office, and sent out to the various Polling Stations. Chief Bobby's evidence that he saw the Voters List in April 1993 would tend to support Paul Kenioriana's evidence that the Lists of Voters had actually been published well before the election not only at Auki Post Office but also at the various Polling Stations.

On the strength of the evidence before the Court, I cannot be satisfied that Form C had not been published as required by Section 17 of the Act. As such the claims in paragraphs 3(ii) and (iii) have not been substantiated.

Equally the evidence on the allegation in paragraph 3(iv) has been very slim. The Petition suggested that Mrs Bernadette Akuna helped to alter the Voters List for Aoke-Langa Langa Constituency. But the evidence to support that allegation is simply not there. There is no evidence that others helped to tamper with the Voters Lists (Form C).

As to paragraph 3(i), the evidence clearly, is that George Waleka who was then an Assistant Registration Officer, issued Forms B to some people who wished to be registered to vote. But he did not issue Forms B to others in Koalia, Laulasi, Su'u/Afele and Fodoru Villages, where he simply took the names of those who were to be registered to vote. It was after he obtained the names that he entered them into Forms B and later to Form C.

The complaint here is not so much that the people who gave their names were not qualified to vote, but rather the method of registering them to vote was not done according to law. As such Mr. Radclyffe argued that such a non-compliance amounts to a breach of the principles of election law in terms of section 9 of the Act.

The provision of section 9 is in the following term:

"9. No election shall be invalid by reason of non-compliance with this Act if it appears that the election was conducted in accordance with the principles of this Act and that the non-compliance did not affect the result of the election."

The evidence clearly shows that the Assistant Registration Officer, George Waleka, did not comply with Sections 15 and 16 of the Act. He admitted not issuing Forms B. His excuse however was lack of fund which cannot be accepted. The Act places the duty on the Registration Officer or an Assistant Registration Officer to prepare and publish the List of Voters. The preparation of that list must be done in accordance with the provisions of the Act relating to registration of electors.

Part of the process of preparing that List is the use of Forms B which should be issued to electors entitled to be registered and returned to the Registration Officer or Assistant Registration Officer after they were completed by the electors and signed. That had not been done here especially for the villages mentioned.

I find paragraph 3(i) sufficiently proved but paragraphs 3(ii), (iii) and (iv) have not been proved.

Ground 4.

This ground alleges that 25 residents of Dalousu and Aefai Villages in Central Kwara'ae Constituency were registered at Firifau Village in the Aoke-Langa Langa Constituency contrary to section 55 (2)(b) of the Constitution. I have searched through evidence on this allegation and I must say that there was not one drop of evidence before the Court to prove that 25 residents of Dalousu and Aefai Villages were registered at Firifau Village in the Aoke-Langa Langa Constituency. There was no evidence to show who they were or how many were from Dalousu and how many were from Aefai.

In those circumstances I have no hesitation is dismissing ground 4 of the petition.

Ground 5.

The first part of ground 5 complains that 20 registered voters from Kwaimela Malakwai and 33 registered voters of Kukuli were on the list of voters for both the Aoke-Langa Langa Constituency (Busu Polling Station) and Central Kwara'ae Constituency. (Maoro Polling Station).

There has been much argument about where the voters of Kwaimela Malakwai and Kukuli should vote and evidence were called to this effect. According to the Returning Officer, Mr. Maetora, these two villages were inside Aoke-Langa Langa Constituency. However on advice from the Chief Electoral Officer, Mr Evaresto Ega, the Returning Officer wrote to the people of Kwaimela Malakwai and Kukuli on 25th May 1993 advising them to vote at Maoro Polling Station in the Central Kwara'ae Constituency.

When one looks at the Form C, List of Voters, one finds that Kwaimela Malakwai and Kukuli Villages are in Ward 38. Now to add to the complication, Ward 38 was in existence at the time of the registration of voters but it was not so at the time of election although the List of Voters used during the election still has voters listed under Ward 38. By Legal Notice No. 70 of 1993 Ward 38 had been included in Ward 1 and Ward 38 no longer existed as a Ward. The new Constituency of Aoke-Langa Langa comprises of all of Ward 1. The new Central Kwara'ae Constituency comprises of Wards 15, 16 and 29 inclusive. Under that Legal Notice, Ward 29 is made up of both previous Wards 36 and 37.

It is therefore hardly surprising that when the people of Kwaimela Malakwai and Kukuli were told on 25th May 1993 to go and vote in Central Kwara'ae Constituency they protested. According to the Returning Officer he wrote to the people of Kwaimela Malakwai and Kukuli telling them to go and vote at Maoro Polling Station in Central Kwara'ae following the advice from the Chief Electrol Officer as contained in a letter of 13 May 1993.

With respect to the Returning Officer, I feel he misconstrued the Chief Electoral Officer's letter. Nowhere in Mr. Ega's letter did he advise the Returning Officer for Aoke-Langa Langa Constituency to notify the people of Kwaimela Malakwai and Kukuli to cast their votes at Maoro Polling Station in the Central Kwara'ae Constituency.

The Returning Officer stated that he relied on paragraph (c) of Mr. Ega's letter which he said referred to Kwaimela Malakwai. Again that is not correct. Mr Ega's letter did not say anything about Kwaimela Malakwai Village.

Mr Ega's letter to the Returning Officer was about Radefasu Village which is in Kwaimela/Radefasu Ward which is Ward 29. Kwaimela Malakwai Village is obviously not the same as Kwaimela/Radefasu.

The evidence clearly shows that the Returning Officer's Final Notices (Exhibit 17) for the Aoke-Langa Langa Constituency were put up prior to the election day in accordance with the requirement of the Act. Those Notices shows the Polling Stations and the Villages in those Polling Stations. Among the Villages shown under Busu School Polling Station are Kukuli and Kwaimela Malakwai. According to the Final Notice for Busu Polling Station registered voters of those two Villages were to cast their votes at Busu Polling Station and not anywhere else.

It was therefore not proper for the Returning Officer to issue the notice by letter of 25th May 1993 advising the voter of Kwaimela Malakwai and Kukuli to go and vote at Maoro Polling Station in Central Kwara'ae Constituency. Thus the visit by Chief Tutu and others to the Returning Officer and the Election Manager that night before election day which resulted in the hand-written note made at about 0305 hours on 26th May 1993 by the Respondent and signed by the Returning Officer and Election Manager were simply actions taken to comply with the Final Notice as earlier published by the Returning Officer.

There is also one matter that must be mentioned here. The evidence tend to support the contention that Kwaimela Malakwai Village is the Village at the mouth of that River and which is inside what previously Ward 38 whereas Kwaimela Village is the Village inland and which comes within the boundary of Ward 29. These are two different Villages.

Again when one looks at the Overall Register of Voters (Exhibit 19) for the whole Malaita Province, one finds that Kwaimela Malakwai Village is in Ward 1 and there is a Village just called Kwaimela which is in Ward 29.

I have dwelled in explaining these facts to show why the confusion arose here.

In the light of what has been said, the Petitioner's claim in paragraph 5(a) cannot be sustained. In any case there is simply no evidence to establish the claim and it must also fail.

Paragraph 5(b) follows the same fate as 5(a) above and it, too, must fail.

Ground 6 (a), (b) and (c)

In paragraph (a) of this ground, the allegation is that several ballot papers in the Respondent's ballot boxes were folded in twos, threes, fours and even fives and that it appeared that such ballot papers were folded together and inserted in the ballot boxes at one time. In support of this ground, the Petitioner called Rachel Fagani, Waleburi Olomane, Michael Waletobata and Joses Maetorea (Returning Officer).

According to Rachel Fagani, she was present when the ballot boxes were emptied. She said she saw two ballot papers folded twice from the Respondent's ballot box for Auki Polling Station. However she said, those folded ballot papers had "Official marks" in them. She didn't make any complaint about the folded ballot papers until after the Respondent was declared winner.

Waleburi Olomane was also present at the counting of votes. He was the Petitioner's counting agent. He said he saw from the Respondent's boxes for Auki, Oibola and Rade Polling Stations many ballot papers which were folded once and twice.

Michael Waletobata also said he saw many ballot papers folded. He did not say how many he saw folded.

Joses Maetorea was among the six persons present during the counting. He was supervising the counting of votes. He testified that he saw only three ballot papers folded together from the Respondent's boxes. He further stated that there were several ballot papers also folded together by voters in the process of pushing those ballot papers into the boxes as the boxes were full. He said that all the ballot papers said to be folded had all "official marks" in them. As far as Mr. Maetorea was concerned only three ballots papers were spoiled, one for each of the three candidates, the Petitioner, the Respondent and Philip Jack Aru.

The argument implicit here for the Petitioner is that there were extra ballot papers in those folded ballot papers. However such a suggestion has absolutely no support from the evidence. The evidence shows that all folded ballot papers had "official marks". The ballot papers issued equalled to the number of electors voted.

None of the people counting the votes raised any complaint about the folded ballot papers until after the Respondent was declared winner. In fact there was nothing at all that prevented the folded ballot papers from being accepted and counted. Under section 49 of the Act, the only grounds for not accepting a ballot paper are where a ballot paper

(a) does not bear an official mark; or

(b) on which anything is written or marked by which an elector can be identified other than the printed number.

In this case, apart from the complaint that those ballot papers were folded once, twice or three times, there is nothing in the evidence that would persuade the court to disregard those ballot papers. The only ballot papers which the Court would disregard are those which the Returning Officer had already rejected.

The allegation in 6(c) is that Presiding Officers from the four polling stations who were supporters of the Respondent issued approximately 400 ballot papers other than to registered voters. This allegation has no substance whatsoever and must be discarded.

There is nothing else need be said about this ground and it, also, must fail.

Ground 10

This ground alleges personation in that supporters of the Respondent at Auki, Oibola and Busu Polling Stations were issuing pieces of papers to people and that those pieces of papers contained names and numbers of registered voters. It is then said that the people to whom the pieces of papers were issued voted using other people's names.

Mr Radclyffe submitted that the use of pieces of papers during voting time encourages personation. I agree with Mr. Radclyffe. The case of Dio -v- Saemala CC77/89 cannot be said to be the authority allowing the use of pieces of papers as a means of identification of electors at the poll. The reason for the remarks made by Ward CJ in that case that he saw no practical difference between a voter giving his name to the polling assistant orally or by writing on piece of paper was simply because the procedure allowed the polling agents to check and protest anyone they thought was not correctly identified and since no objection was ever raised at the time voters using pieces of papers, it really did not matter. But as I said in Maetia -v- Dausabea CC266 of 1993 (Judgement given on 23rd November 1993) at page 11 of the Judgement:

"In Dio -v- Saemala CC 77/89, the question of the use of pieces of papers as a means of identifying an elector at the time of voting had been raised. The learned Chief Justice Ward felt that he saw "no practical difference between a voter giving his name to the polling assistant orally or by writing on piece of paper." With respect, I feel that what the learned Chief Justice said in that case must be viewed in the light of the circumstances of that case only. It cannot and would not be appropriate to apply that to all cases of election petitions where the use of such pieces of papers have been challenged. One can only discover from the evidence in this case the practical difference that can arise with the use of a piece of paper as a means of identification of a voter. In the present case Patterson Fusuota identified himself with the use of a piece of paper. He was not a registered voter and should not have voted, yet, through the use of a piece of paper, he was able to pass through the polling assistant and was allowed to cast his vote.

The case of Dio -v- Saemala does not in any way encourage the use of pieces of papers as a means by which a voter can identify himself and it would be wrong to assume that CC77/89 does that. Any candidate who encourages the use of such pieces of papers during polling runs the risk of being subjected to allegations of illegal or corrupt practices."

If I may repeat it once more, there is no authority in this country for the use of pieces of papers as a means by which an elector can be identified at the time of voting and this Court is not prepared to set one. The polling assistant must carry out his duties under Section 37 and he cannot have electors do the work for him through the use of pieces of papers.

Having said all that, I turn to the allegation in this ground. At Oibola Polling Station, Waleburi Olomane saw voters using pieces of papers to identify themselves to the Polling Assistant. He stated that after 10 people used pieces of papers, he took the pieces of papers from the Presiding Officer's table and gave them to Sgt. Andrew Dau, a police officer stationed at Oibola Polling Station.

Sgt. Dau said that he also noticed voters presented the pieces of papers to the Polling Assistant and Presiding Officer and were then issued with ballot papers. He said there were 28 pieces of papers that he saw.

Neither Olomane nor Sgt. Dau could say that those electors who presented the pieces of papers and were issued with ballot papers voted in somebody else's names.

David Walemae agreed he gave pieces of papers to Maesi Waletalau and to some women who could not read and write to help them voted. The List of Voters (Form C) for Laulasi did in fact showed that Maesi Waletalau voted. His registration number was 38/21/55. As for the women to whom David Walemae gave pieces of papers, there was no evidence who those women were and whether they in fact voted or not.

The allegation in paragraph 10 is not simply that of issuing pieces of papers to people but it also alleges that those people used the pieces of papers to vote in other people's names. Where is the evidence to substantiate that assertion? The Court cannot assume that people issued with pieces of papers voted in other people's names. It must be shown by evidence who those people were, that they voted and did so in other people's names. I am afraid the evidence did not show that such was the case here as alleged.

As far as the allegations in ground 10 are concerned, the evidence stops far short of proving the contents of those allegations contained in that paragraph and must also fail.

Ground 12

This ground alleges the corrupt practice of bribery against the Respondent through his agent Mr. Joseph Akuna. The test to be applied where such allegation has been raised is that set out in Alisae -v- Salaka (1985.86) SILR 31 and adopted in Maetia -v- Dausabea CC 266 of 1993. See also Mamata and Another -v- Maetia CC 115 of 1984 and Wate -v- Folotalu CC 241 of 1993.

The allegation is that Mr. Akuna had a meeting with one Daniel Walesara during which Mr. Akuna told Mr. Walesara to vote for the Respondent and that if he did so, the Respondent would help him with 3 fishing nets and a 9.5 HP Suzuki outboard motor. In this regard, the Petitioner relies mainly on the evidence of Daniel Walesara.

Mr Walesara gave evidence and stated that on 24th April 1993 he went to see Mr. Akuna who was the Respondent's campaign Manager. According to Mr. Walesara it was Mr. Akuna who asked him to go and see Mr. Akuna. It was during that meeting that Mr. Akuna said to him that he should note for "S" meaning Saemala (the Respondent) and that if he did so, he would be assisted with fishing nets and outboard motor.

In the course of their conversation Mr. Walesara asked when the fishing nets and outboard motor would be available. In reply Mr. Akuna said "after the election". Mr. Walesara said he did not believe Mr. Akuna when he said that if he (Mr. Walesara) voted for "S", he would be given the things which Mr Akuna mentioned. Mr. Walesara then went back to his place.

Mr. Akuna gave evidence and denied telling Mr. Walesara that if he should vote for the Respondent and that if he did so, he would be given fishing nets and outboard motor. Mr. Akuna agreed that he and Mr. Walesara met on 24th April 1993 but said that their meeting was not called by him.

According to Mr Akuna, on 24th April 1993, Mr. Walesara came to visit his brother Mathew when Mr. Akuna met him. It was then that Mr. Walesara asked Mr. Akuna as to why people in Central Malaita had been receiving help from their MP under the MP Discretionary Fund. Mr. Akuna then explained to him the procedure of applying for assistance under such Fund. Mr. Akuna said he then took a spare copy of the Form used when applying for such assistance and showed it to Mr. Walesara.

Mr. Walesara said that Mr. Akuna never explain to him about the procedure of seeking help from his MP through such Fund. Mr. Walesara however agreed both in examination in-chief and in cross-examination that Mr. Akuna showed him the Form (similar to Exhibit 15) which was normally used when applying for assistance through the MP's Special Discretionary Fund. That would tend to support Mr. Akuna's version of what had happened on that day.

Weighing the evidence of Mr. Walesara against that of Mr. Akuna, it is obvious that Mr. Akuna's story bears more weight than that of Mr. Walesara. I do not believe the version of evidence as given by Mr. Walesara.

There is a further difficulty which faces the Petitioner on this ground. Even if the Court were to accept (which is not) that Mr Akuna did tell Mr. Walesara that he should vote for the Respondent and that he would be assisted with fishing nets and outboard motors, in terms of section 70 of the Act, that could not be said to be bribery. It may be a step toward committing the offence of bribery.

It is true that under the section bribery can be established if the person receiving the money or valuable consideration does so as an inducement to do a favour, that is, to vote or refrain from voting. The Petitioner need not prove that the person receiving the money or valuable consideration actually voted or refrained from voting: see Henslow -v- Fawcett (1835) LJK.B. 147. However, the fact of the giving of the bribe or an agreement to give or to offer the bribe or the promise to procure the bribe must be established by evidence. There must be a giving of the bribe or an agreement to give the bribe or a promise to procure the bribe for the purpose of inducing a voter to vote or not to vote.

In this case there is no giving and receiving of a bribe and there is no agreement to give a bribe. Is there a promise by Mr. Akuna to procure a bribe here? It has been established that "promise" means an express promise and not one which may be inferred by the conduct of the parties: Lichfield Division Case (1895) 5 O'M & H 27 at p.29 and it must be a promise as such made for the purpose of inducing a voter to vote or refrain from voting: Stroud Case (1874) 2 O'M & H 181. When one takes Mr. Akuna's alleged statement asking Mr. Walesara to vote for "S" so that 'they' would give him fishing nets and outboard motor, that can hardly be said to be an express promise. One can infer a promise from that but that is not what "promise" means under section 70 and Lichfield Division Case (supra).

Again a further hurdle faced by the Petitioner is that of, not only establishing the fact of the bribe, but also establishing that the bribe as alleged had been operative at the time of election.Mr. Walesara's own evidence gives the answer beyond doubt that the alleged bribe (if there was any) could not have been operative on him at the time of election. He clearly did not believe Mr. Akuna's story (if at all was his story) about the fishing nets and outboard motor. What bribe was there to be operative then at the time of election? The answer is, none.

This ground must also fail.

As I have said earlier, these are the grounds upon which Counsel for the Petitioner relied upon.

Other allegations were raised during the hearing of this petition but which were not relied upon by Counsel for the Petitioner. Much had been said during the hearing about how the Respondent went about conducting his election meetings among the Salt Water Association communities as well as at church gatherings. However despite so much time had been taken up on these complaints, when the evidence were presented in court, those complaints fell apart. Mr. Radclyffe had ably put the Petitioner's case as far as he could. But the evidence was not forthcoming as was expected. Mr Radclyffe very properly did not seek to persuade the court of those matters.

Of the grounds relied upon by the Petitioner, only ground 3(i) has been established. The Petitioner have not proved all the other grounds. In terms of section 9 of the Act, the non-compliance as found in ground 3(i), in my judgement, would not be sufficient to hold the election invalid.

This petition must therefore fail and the Court shall certify to His Excellency The Governor-General that Francis Joseph Saemala had been duly elected as Member of Parliament for the Aoke-Langa Langa Constituency.

Petition dismissed with Costs.

(G.J.B. Muria)
CHIEF JUSTICE