Hatigeva v Tuhanuku [1994] SBHC 3; HC-CC 260 of 1993 (1 March 1994)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 260 of 1993

WILFRED HATIGEVA

-v-

JOSES TUHANUKU

High Court of Solomon Islands
(Muria CJ.)

Hearing: 21, 22 February 1994
Judgment: 1 March 1994

R. Teutao for Petitioner
A. Radclyffe for the Respondent

MURIA CJ: This is an election petition brought by Petitioner in this Court pursuant to section 81 of the National Parliament Election Provisions Act 1980 (hereinafter referred to as "the Act") and the Election Petition Rules 1976. The Petitioner is Mr. Wilfred Hatigeva who was a candidate for the Rennell and Bellona Constituency at the last General Election held on May 26, 1993. The Respondent is Mr. Joses Tuhanuku who was elected Member of Parliament for the said Constituency.

The petition contained a number of allegations of offences and irregularities against the Respondent. However at the hearing of the petition the Petitioner decided to pursue only certain of the allegations against the Respondent. All those allegations brought against the Respondent but were not pursued by the Petitioner had been formally dismissed by the Court at the end of the Petitioner's case.

There are allegations concerning the use of the Voters List at Anua Polling Station. Those allegations are contained in paragraphs 40 to 44 of the Appendix to the petition. At the end of the hearing, Mr.Teutao very properly conceded that the evidence against the Respondent on those allegations had not been sufficiently made out.

I agree that the evidence on those allegations is heavily against the Petitioner and the Court will therefore dismiss those allegations contained in paragraphs 40 to 44 of the Appendix to the petition.

There is the allegation of bribery and/or treating raised against the Respondent in paragraph 27 of the Appendix to the petition. This allegation concerns the giving of $300.00 (Cheque) to the Teavamagu Women's Club of West Rennell. Mr Teutao was very frank in his submission on this point. Bearing in mind the test laid down by this Court on proof of corrupt practices, Counsel in my view, very properly submitted that the evidence on this ground would leave sufficient doubt in the mind of the Court as to the truth of the allegation raised against the Respondent in this paragraph.

As I have said, the concession by Counsel is a proper one and the Court must therefore also dismiss paragraph 27 of the Appendix to the petition.

The remaining allegations are those contained in paragraphs 11, 22 and 34 of the Appendix to the petition which are allegations of bribery and/or treating. The allegations in those paragraphs, says Counsel for the Petitioner, have been established on the evidence before the Court and so the election of the Respondent ought to be declared null and void.

I bear in mind the test to be applied in allegation of corrupt practices in election petitions. That test is laid down in Alisae -v- Salaka (1985/86) SILR 31 and applied in Maetia -v- Dausabea; Civil Case 266 of 1993 (H.C); Wate -v- Folotalu Civil Case 241 of 1993(H.C) and Thornley Hite -v- Allan Paul Civil Case No. 207 of 1993 (H.C) and it is that where corrupt practices are alleged in election cases the evidence establishing such allegation of the Court. Such evidence, as I pointed out in Maetia -v- Dausabea must be clear and unequivocal. I said at p.4 of the Judgement:

"From these observations, I am of the view that the test in Alisae -v- Salaka is the test to be followed in Solomon Islands when allegations of corrupt practices such as bribery, treating or undue influence are raised in an election petition. That required standard of proof is stricter in that the allegations must be proved to the entire satisfaction of the court. The evidence must be clear and unequivocal inorder to enable the court to be entirely satisfied that the allegations of corrupt practices are made out and not simply on the mere balance of probabilities which is a test that is appropriate to the other allegations of breaches of the election laws."

The evidence as presented on behalf of the petitioner on the remaining allegations of bribery and/or treating is that on 18/5/93 at Labagu Tony Kagobai gave five (5) sticks of tobacco to one Enoch Saunga. Tony Kagobai was said to be the supporter of the Respondent.

Enoch Saunga further stated that he took two boys to Tony Kagobai who gave them tobacco as well. According to Enoch Saunga, the tobacco were used by Tony Kagobai to campaign for the Respondent. It was alleged that Tony was an Agent of the Respondent and had campaigned for the Respondent publicly and from house to house and had use tobacco to get people to vote for the Respondent.

It was also alleged that Tony Kagobai had bribed the people of Labagu to vote for the Respondent through the distribution of fish which were caught by persons hired by Tony Kagobai to do fishing. According to Enoch Saunga, when the fish were shared Tony Kagobai made remarks that what he was doing was done on behalf of the Respondent so they should vote for the Respondent.

Tony Kagobai agreed he was a supporter of the Respondent but that at no time did he ever act as a agent of the Respondent. He agreed also that when he went home had some tobacco and other goods with him which he said were usually taken with him whenever he visited home. The tobacco were not from the Respondent nor were they used to lure votes for the Respondent. According to Tony Kagobai, not only did he give tobacco to Enoch Saunga but also to other boys in the village as he usually did before whenever he went home on leave because they all asked him for tobacco.

The fish which were caught and brought to the Village were for the elders. This was an act of generosity on Tony Kagobai's part seeing that the elders had missed out on fish caught earlier and taken to people further inland. He had money and felt that morally he should help his elders.

In so far as the allegations against Tony Kagobai are concerned, it is really a question of who the Court believes - Enoch Saunga or Tony Kagobai? This the Court will do so bearing in mid the test as mentioned earlier in this judgement. I also bear in mind the fact that the onus is on the Petitioner to satisfy the Court under the test as laid down under the cases referred to.

When one considers Enoch Saunga's evidence of the alleged corrupt practices against Tony Kagobai, one still needs to ascertain whether there is support for the allegations.

It so happened that Tony Kagobai took his annual leave in this case during the time of election. That in my view does not make any difference. Enoch Saunga's evidence, standing on its own in this case, would not be sufficient to satisfy the Court of the substance of the allegations raised. Tony Kagobai's explanations as to the giving of the tobacco and fishing for the elders are equally acceptable. It is not uncommon in Solomon Islands to expect a person returning home on holiday to at least share some of his goods brought with him home with his people in his village.

I do not find Enoch Saunga's evidence in this respect to be convincing. Equally I do not find his allegation of Tony Kagobai campaigning for the Respondent satisfactory nor is there any evidence to show that Tony Kagobai is the Respondent's agent.

Moses Kava's evidence does not advance the Petitioner's position any better on the allegations raised in para 11.

On the test as laid down on allegations of corrupt practices, I am not satisfied that the allegations in para. 11 of the Appendix to the petition has been made out and it must fail.

As to paragraph 22, the allegations are that the Respondent gave money and food to Enoch Saunga, Obed, Stella, Noaika and Enoch's wife for the purpose of inducing them to vote for the Respondent. The giving of the food and money was said to have taken place at the Renbel Store at Labagu.

Again, the evidence here only comes from Enoch Saunga himself. None of the other people who were said to be given food and money had ever been called to give evidence to verify Enoch Saunga's story. It is again only the evidence of Enoch Saunga as against the Respondent's.

Enoch Saunga's evidence is that he met the Respondent at the Renbel Store four days before the election. It was at that time the Respondent gave him two packets of biscuits, two packets of noddles, one small tin taiyo, one stick of tobacco, and smoking paper and $30.00. The others who were said to have received goods from the Respondent were Obed, stella, Noaika and Enoch's wife. Obed was said to have received $150.00 also.

The Respondent gave evidence and said he went to Renbel Store before election last year. There were other people there at the time. The Respondent did his shopping while these other people were watching him. The Respondent knew that it would look bad in his custom if he just ignored those people and took off with the goods he bought. So he bought some goods and gave them to those who were with him at the store at the time. Among those present was Enoch Saunga to whom the Respondent agreed he might have given some goods but not $30.00 as Enoch claimed.

As far as Obed is concerned, the Respondent said he had to give him some money as the Respondent was staying with him at his house. The Respondent would be obliged to give something to Obed for putting him up during his trip. The Respondent however said he only helped Obed with about $10.00 or $20.00 and not $150.00 as Enoch claimed.

According to Enoch Saunga's evidence, the Respondent never said anything to those who received goods from the Respondent. He said he did not know why the Respondent gave him and others goods.

Looking at the evidence of Enoch as against that of the Respondent, I am clearly of the view that Enoch's evidence cannot be preferred. I have seen and heard Enoch given evidence and I have found him to be an unimpressive witness. His evidence leaves a lot to be desired. While Enoch denied been given help by the respondent in the past, he agreed the Respondent used to visit him and others at Labagu and would sometimes stay with them. I believe the Respondent when he said he gave some help to Enoch in the past.

Enoch would have liked the court to believe that the Respondent had never given him any help before and that what the Respondent did at the Renbel Store was an act of corrupt practice. Unfortunately I do not feel I can attach any weight at all on his evidence.

For the reasons already stated, this ground cannot succeed.

On the allegation contained in paragraph 34, the Petitioner seeks to rely on the $50.00 and tobacco which the Respondent gave to Flinters Andrew as evidence of bribery.

Flinters' evidence is that just before election, she met the Respondent at the Suani Rest House where the Respondent was staying during his election campaign. It was at that time that Flinters asked the Respondent for help on her daughter's school fee and school equipment.

She did not mention how much the school fee was but only mentioned $10.00 for school equipment. The Respondent gave her $50.00. She accepted the $50.00 and used $10.00 out of it for her daughter's school equipment while the remaining $40.00 went toward school fee. There was also the allegation of the Respondent giving 10 stick tobacco to Flinters. Both the giving of $50.00 and 10 sticks of tobacco were said to be for the corrupt practice of bribery.

The Respondent gave evidence and agreed he gave $50.00 and a couple of stick tobacco to Flinters at the time. The Respondent denied giving 10 stick tobacco as alleged by Flinters.

The Respondent explained that Flinters asked him for help with her daughter's school fee and as he did not have much money with him at the time, the best he could do was to give her $50.00 for her child's school fee. Flinters accepted she used the money for her daughter's school fee and school equipment. It helped her daughter to remain at school otherwise she would have been sent home.

As to the tobacco, Flinters has clearly stated in Court that the Respondent asked her if she wanted she could help herself with the tobacco. I accept she was not given 10 sticks of tobacco but rather she took a couple when the Respondent told her that she would help herself.

In support of Flinters story, evidence was given of a letter purported to be written by the Respondent to Flinters regarding the $50.00. It was alleged that the Respondent was angry with Flinters and asked for the refund of his $50.00.

Chief Nicholas Taika gave evidence of custom regarding giving of gifts. He said that in custom, it is acceptable to give items or goods to others even if they are not relatives. Relatives, however, need not ask before help can be given to them.

According to Chief Taika, the respondent is not only a Member of Parliament but he is also a Chief who is well respected, well known and has helped people as expected of him.

I do not need to go through the evidence on this ground. Suffice to say that when one considers the evidence of Flinters, Amote Tokahipu and the Petitioner, there cannot be any doubt in my mind that the story which they put together regarding the $50.00 cannot be believed.

The Petitioner attempts to paint the picture that the giving of the $50.00 is for the purpose of inducing Flinters to vote for the Respondent and that when she did not do so the Respondent wrote a letter to Flinters to refund his money. That picture is clearly not supported by the evidence before the Court. I am afraid, like Enoch Saunga, Ms Flinters had shown herself to be an unimpressive witness.

In her evidence in chief, Flinters stated that she received the letter from the Respondent one month after the election. That letter, she said, was shown to her parents at home. When asked why she did not bring the letter, Flinters said that she did not bring the letter as she did not think it would be needed in Court.

When Mr. Raddclyffe pressed her in cross-examination as to why she did not bring the letter, Flinters said that she used the letter for smoking. Of all the letters going back and forth between the Petitioner and Flinters, one would expect that the Respondent's letter to Flinters would have been vital for the Petitioner and steps should surely have been taken to preserve that letter for use as evidence in Court. That has not been done here. Nevertheless the Court has been asked to believe the existence of that letter.

Unfortunately for the Petitioner, the doubt in the mind of the Court has increased about the so-called letter said to be written by the Respondent when Exhibit 1 and Exhibit 3 are compared. They are both supposed to have been letters written by Flinters to the Petitioner. The letters are written in language but they are definitely not written by the same person.

I need not go further on this, since I do not believe the story as presented to the Court by the Petitioner and his witnesses. Their evidence on the whole does not add up to what I said in Maetia -v- Dausabea that "the evidence must be clear and unequivocal." A good portion of the evidence relied on by the Petitioner are hearsay and the Petitioner knew better to come to this Court with such evidence.

This and other parts of the evidence for the Petitioner have clearly left the Court wondering about the veracity of the Petitioner's allegations against the Respondent in this case. Bearing in mind the test to be applied when allegations of corrupt practice are raised, it is hardly surprising that the Court would have no hesitation in throwing out allegations such as the ones here raised against the Respondent.

The allegation of corrupt practice contained in paragraph 34 of the Appendix to the Petitioner must also be dismissed.

As none of the grounds raised in the petition against the Respondent succeeds, the petition is dismissed with costs.

The Court shall certify to H.E. The Governor-General that Joses Tuhanuku had been duly elected as Member of Parliament for the Rennell and Bellona Constituency.

(G.J.B. Muria)
CHIEF JUSTICE