Maesua v Dausabea [1999] SBHC 12; HC-CC 255 of 1997 (15 February 1999)

HIGH COURT OF SOLOMON ISLANDS

CIVIL CASE NO. 255 OF 1997

DMAESUA

v

CHARLES DAUSABEASABEA AND

JAMES DELEMANI (RETURNING OFFICER)

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)

CIVIL CASE NO. 255 OF 1997

HEARING: 30^th November to 4cember 1998
JUDGMEUDGMENT: 15^th February 1999.

S. PATRICK FOR THE FIRST RESPONDENT
G. G. SAMUELS FOR THE SECOND RESPONDENT

PALMER J.: On sixth August 1997, the Nation went to the polls. It was national election day in Solomon Islands. Every four years those eligible and had been registered in the electoral roll as voters go to the polls to cast their vote for their favoured candidate. The candidate with the most votes (first past the post system) wins the election in any particular constituency.

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> In the East Honiara Constituency, several cates contested, including ng the Petitioner, David Maesua, and the First Respondent, Charles Dausabea. At close of voting, the First Respondent was duly elected as the winning candidate with a majority of twenty two (22) votes over his nearest rival, the Petitioner. The First Respondent polled a total of 1014 votes whilst the Petitioner polled 992 votes.

THE PETITIONER’S CASE:

The thrust of the Petitioner's attack was on four fronts: (1) that of personation; (2) treating; (3) campaigning within 200 yards of a polling station contrary to section 78(1) of the National Parliament Electoral Provisions Act 1980 (the “Act”); and (4) irregularities in the Kofiloko Voters list.

(1) PERSONATION:

This ground contained the main thrust of the Petitioner's attack, that there was a plan to aid and abet the personation of voter's names on the electoral roll who were not in the constituency to vote on election day.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Mr. Radclyffe submitted the First Respondent knew the result would be close with nine candidates contesting. And so embarked on a massive campaign with 50-60 "campaign managers". One of his key persons he submitted was Silas Atu who joined the campaign team and sought to participate in an unlawful plain to win as many votes he could for the First Respondent. It is not in dispute Silas Atu and the First Respondent are close to each other. The Petitioner seeks to suggest this was because Silas Atu was one of the key persons involved in campaigning for the First Respondent although he was not listed as such. He submitted this placed Atu in a special position to the First Respondent, that of an agent and therefore his actions are directly relevant to the issue of whether a corrupt practice had been committed and thereby invalidating the election.

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The First Respondent on the other hand explained their close relatielationship as arising from their friendship from child-hood. He denied however that Atu was a "campaign manager" or was instructed to personate persons in voting for him. He also denied instructing anyone to engage in any such illegal activity, He sought to emphasise to this court that having been involved in a number of election petitions previously he was only too aware of the implications and so made it clear to his campaign managers to comply with the Electoral laws.

THE PETITIONER'S EVIDENCE

lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The crucial witness called by the Petitioner in support of what can be described as an elaborate plan to aid and abet personation came from Timothy Bobongi (PW2). His evidence raised a number of crucial matters. The first matter raised pertained to the activities of a youth group, the Vura Adventist Youth group (VAY) of which he was a member. He alleged in evidence the said youth group was very active in campaigning openly for the First Respondent. He identified Silas Atu as the Secretary of the group and the ring leader of their "campaign plan". Some of the things the group did included putting up posters around the vicinity and campaigning on a door to door basis.

One of the crucial meetings he recalled in which the plan to aid and abet personation was discussed was held at the house of Solo Simata on 27^th July 1997. Only boys were asked to attend and about 22 boys attended, including Silas Atu. The following things he claimed were agreed at the meeting:

1. That Charles Dausabea must wipan>

2. That in orde him to win, they agreed oned on a plan to personate names of students at Solomon Islands College of Higher Education ("SICHE") who were on leave; secondly to personate names of anyone at Vura who was on leave; and thirdly, those whose names had been registered twice could cast their votes twice.

On election day, this witness testified he met up with Silas Atu at Vura P Polling Station at about 11 am. He states there were three other members of the VAY group sitting with him at that time. He claimed Atu held a list in his hand. When he asked to see the list he was told it was confidential. He claimed that was the master list used to monitor names of persons at SICHE and those away on holiday. Atu then told him to go to Kukum Campus to cast his vote there. This was in spite of the fact he was not a registered voter there. This witness however further stated under examination in chief that Atu had told him that if he did not find his name there he should go over to Kukum Campus.

This witness also claimed to have seen George Buga carting five ladies in his bus registration number A1910, from Honiara Casino at Point Cruz to Kukum Campus Polling Station on the same afternoon (around 1.30 - 2.00 pm). What was sought to be suggested was that those ladies were taken to Kukum Campus Polling Station as part of the plan to aid and abet personation of students names who were not at SICHE at the said time.

SUPPORTING WITNESS'S EVIDENCE:

Ivan Kevin (PW 6) was called as supporting witness, to testify of what he heard Samani Deffe, one of the polling assistants had told him he did on election day. He alleged this conversation took place the very next day after the elections, on 7^th August 1997. One of the things alleged in that conversation was that Samani Deffe had told him that had he gone to Mbua Valley Polling Station where he was working, he would have given him a name of the Bata Leani family to use. He pointed out to him that a lot of their names were unused on election day. He also mentioned giving names to two girls from the Casino to personate. He alleges he was told about 40 names were given out to people to use.

EVIDENCE OFNCE WITNESSES:

In his defence, the First Respondented a number of witnesses. Tes. The first witness called was Silas Atu This witness denied knowledge of any meetings in which it was ever planned to personate any person. He also denied meeting up with Timothy at Vura Polling Station in the morning of election day. He also denied holding the position of Secretary of the VAY group in 1997. He states he was elected secretary only in January of 1998.

Silas Atu alsoed holding any voters list that was as thick as the Bible ble on the witness Dock, though he did admit holding a list which was only a few pages thick.

George Buga who was alslicated in the evidence of Bobongi was also called ased as a defence witness. He denied seeing Bobongi at Vura Polling Station on the morning of election day. He also denied knowledge of or attending any meetings of the VAY group in which it was planned to personate persons whose names were on the register but were not in town on election day.

Also Samson Faisi, another defence witness denied seeing Bobongi at Vura Polling Station on the morning of election day. This witness confirmed in court that he was the secretary for VAY group in 1997. He pointed out that as secretary he attended most meetings, including one at the house of Solo Simata but at no time was he aware of any discussions concerning any plan to aid and abet personation.

GEORGE BUGA'S DEFENCE:

On the allegation against George Buga that he was seen carting voters from Honiara Casino to Kukum Campus polling station, several witnesses were called to contradict the evidence of Timothy Bobongi. George Buga denied the allegation outright. He states that at around twelve noon, he had gone to the house of Eric Daffie with Samson Faisi and spent the rest of the day watching video. He remembered clearly the three video cassettes he watched that day; these were (1) the latest Unisound concert at the Gold Coast; (2) a rugby game between the All Blacks and Wallabies; and (3) another musical cassette. He states he watched those videos at the house of Eric Daffie until about 4.00 pm before leaving.

Two other witnesses were called in support of his evid Samson Faisi and Eri Eric Daffie. Samson confirmed meeting up with George at Vura Polling Station and going to Eric Daffie's house towards lunch to watch video. He also recalled watching the same three video cassettes.

Eric Daffie confirmed seeing the two at his house when he returned at about lunch-time. He confirmed they watched video until about 4.00 pm before leaving. He was strenuously cross-examined about the identity of the video cassettes but remained firm and was able to give a clear and satisfactory explanation as to why he could recall that day vividly and what videos were watched.

I have been able to observe those three witnesses when giving evidence and d compare them with Timothy Bobongi. Their evidence cannot be lightly dispensed with. They were confident, clear and unshaken under tough cross-examination by learned Counsel for the Petitioner. Their evidence too had not been challenged seriously in anyway. At the same time, I must note learned Counsel for the First Respondent had not put his client's case to this witness during cross-examination to explain or contradict. This failure at times can be construed adversely against one's client. In this particular case however, I am confronted with what I regard as fairly solid evidence, directly challenging the evidence of Timothy Bobongi. This simply meant someone had seen fit to come to this court and make a deliberate lie. That is wrong and must be scorned at. Unfortunately I am unable to say with certainty who had lied and should be had up for perjury. I can go only on probabilities. In this instance, the weight to be attached to those three defence witnesses evidence bears up more than that of Bobongi, not only on sheer numbers alone but also in terms of their demeanour, manner of presentation and consistency of evidence. Ultimately, sufficient doubt had been raised by these three witnesses about Bobongi's evidence that George Buga was seen outside Honiara Casino carting several girls to Kukum Campus Polling Station to cast their votes.

But even if that were true, (suming for one moment that that what Bobongi alleges was true) I find nothing unlawful about his actions. He can transport persons who want a lift to go to the polling station to cast their votes whether they would vote for the candidate of his choice or not (voting is by secret ballot). What is wrong, is for him to offer a lift in exchange for votes for his favoured candidate. There is no evidence or even any suggestion of that sort in this instance.

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Secondly, there is insufficient evidence to support any allegation that those girls did actually cast any votes using names of other persons. In other words, little evidence to support personation. In his evidence, Bobongi could only say those girls were taken and dropped off at the Kukum Campus Polling Station. He saw them entering the Polling Station but did not know if those girls were duly registered or not, or whether they did cast any votes or not and therefore personation had taken place. At the most it was assumed those girls personated others to cast their votes. Stanton Buka and Martin Posenau (PW 7 and PW 8) polling agents of the Petitioner, who were present at the said polling station could neither confirm nor deny the allegations of this witness. When all the evidence is weighed and balanced, I am unable to accept Bobongi's evidence as true. Sufficient doubt had been raised to cause me to rule against the veracity of his allegations, that what George Buga did was part of the elaborate plan to aid and abet personation.

Further it is important to noat apart from Bobongi's evis evidence, the only other evidence adduced which made reference to any Casino girls came as indirect evidence from Ivan Kevin (PW 6). Unfortunately his evidence could not be used directly to support Bobongi's allegations (although it was suggested), in that his evidence referred only to two Casino girls who voted at Mbua Valley Polling Station. Kukum Campus Polling Station and Mbua Valley Polling Station are not the same polling stations. The Casino girls referred to by Bobongi (if true) therefore couldn't have been the same ones referred to by Ivan Kevin.

Also any suggestions that Ivan Kevin's evidence corroborates Bobongi's evidence of any plan does not hold water either. Apart from the evidence of Beui Lamani that Samani Deffe was a supporter of the First Respondent, there is little evidence to link Deffe with the elaborate plan to aid and abet personation. Dausabea denied knowledge of Deffe and stated he only saw him for the first time the week before this case was due to be heard. There has been no evidence, or suggestion either, that Deffe was a member of the VAY group or a supporter, and that he was aware of any elaborate plan to aid and abet personation.

It should also be pointed out that in the conversation alleged eged to have taken place by Ivan Kevin, the purported comment by Deffe made no reference to who his preferred candidate was. So even if a name could have been given to Kevin, it is no guarantee that he would have voted for the First Respondent. There was no mention of who Deffe supported or who Kevin supported; it is not known therefore who Kevin would have voted for if he had been given a name to personate.

In evidence, Deffe denied meetingn on 7^th August gust 1997. He explained that day was spent sleeping and resting off the previous day's work. He did not deny however, he might have met him on another date. He conceded too he might have said something about some Casino girls coming to cast their votes who appeared drunk but the only one he could remember was Carolyn Foasi, who not only voted but was a duly registered voter.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Carolyn wlled as a defence witness to confirm Deffe's evidence. She She denied any suggestions that other girls from the Casino might have accompanied her, or that she knew of anyone from the Casino who had voted. She explained she went to the polling station in a public bus, thus excluding any suggestions she might have been transported there by George Buga.

When all these evidence are put together, it raises doubt in my mind concerning any plan, that Deffe might have been part of or participated in to aid and abet personation. There can be no corroboration accordingly, in Kevin's evidence of Bobongi's evidence of any such plan.

PLAN TO AID AND ABET PERSONATION:

With Bobongi's evidence severely challenged and undermined by the evie evidence of other defence witnesses as discussed above, how should this court view Bobongi's evidence of a plan to aid and abet personation. That Bobongi's credibility had been tarnished, in my respectful view, is without question. For instance, his evidence about George Buga's movements on the afternoon of election day had been seriously and successfully challenged; his description of Silas Atu as the secretary of the VAY group in 1997 was proved wrong by the unchallenged evidence of Samson Faisi; also his description of a list held by Silas Atu as thick as the Bible on the witness dock, could not have been accurate if it was a list containing names of people registered to vote in the Vura area only. Atu had conceded he had a list with him that day but it was not as thick as the Bible on the witness dock. Respectfully, Bobongi's description of the thickness of such a list was in my respectful view, an exaggeration. It should also be noted there was nothing unlawful about the existence of such a list or that Atu had one in his hand. Atu had pointed out in court the Petitioner's group also had a similar list with them.

When all the eve had been duly shifted and weighed, I am not satisfied d it had been proven to my satisfaction that there was indeed a meeting in which an elaborate plan was worked out and agreed upon to personate names of persons who were not present in East Honiara Constituency to cast a vote. Silas Atu denied attending any such meeting in which any such plan was discussed, though he conceded a number of meetings were held at Solo Simata's house. The same was also said by George Buga and Samson Faisi. These all denied any such plans being discussed at any such meetings.

Samson Faisi did point out he was the secretary of the VAY group that year, but denied any such plans were discussed in any of the meetings he attended. All denied that the majority of the group were supporters of the First Respondent, though they conceded there were some within the group.

Having seen and heard those witnesses giving evidence, I have been been impressed with the way their evidence had been given. It has more the ring of truth than Bobongi's evidence. I find their answers and explanations to questions and suggestions put to them to be clear, reasonable and consistent. I do not find them to be evasive or on the defensive and reluctant to answer questions as might have been suggested. They conceded many things and in my view demonstrated an awareness and a concern to be truthful. On the crucial issues, they remained firm and unshaken.

When everything is weighed, I cannot say that I am sure on the balance of probabilities that what was alleged by Bobongi was correct and true and can be relied on in preference to what the defence witnesses have said. It wasn't the case where the defence witnesses' evidence had been completely discredited or discounted to the point that the Petitioner's main witness's evidence is more credible and reliable on the balance of probabilities. I accept the burden of proof is a little less than the criminal standard and higher than the civil burden, but still I am not satisfied it had been duly discharged in this case.

But even if it were so, that there was a plan, the subsequent uent evidence adduced in support had been severely undermined by defence witnesses to the point that I cannot say with certainty and confidence that any such plan had been put into effect by anyone. There was no evidence for instance to directly implicate Silas Atu about any improper activities that day. The most that could be suggested was being seen holding a list as thick as the Bible on the witness dock. I have formed the view however after hearing evidence that this could only have been an exaggeration. Silas Atu conceded holding a list but there is little evidence to suggest that it was used for any improper purposes. Timothy Bobongi could only assume it was used to monitor the names of persons who were on holiday or who were students at SICHE, because he conceded he was not shown the list. If he was an active member and supporter of the First Respondent, who had gone door to door, campaigning and putting up posters around Vura area, why would he be denied access to the list. If what he said was correct, that he was not a registered voter, then surely one would have expected him to be one of the first persons to be given a name by Atu to use either at Vura Polling Station or at Kukum Campus Polling Station. He was never given any name or shown names on the list that he could use, or testified of anyone having been shown such names or list to use. It appears he never voted either, in spite of the fact that he was an ardent supporter of the First Respondent until just recently. Also the fact he might have been told to go and vote at Kukum Campus Polling Station implies a name had been identified for him to use or that there was someone at Kukum Campus to assist him find a name to use. There was no evidence of such.

s I have stated and repeat, when all these matters are take taken into account, I am not satisfied it had been proven to my satisfaction that there was indeed any such elaborate plan to aid and abet personation by Silas Atu or any of the persons named in the evidence of Bobongi.

SPECIFIC PERSONS ALLEGED:

p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> That there were personations however, I proven in respect of some oome of the persons named in the petition. However what is important to note from the outset is that I am not satisfied these were done by or on behalf of the First Respondent by any agent.

Paragraph 4 (c): PHILIP SUA.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> This witness found that his name had been crossed out at the Mbua Valley ley Polling Station when he went to cast his vote in the afternoon. Unfortunately there is no evidence to suggest that this was done as part of the plan to aid and abet personation as alleged by Timothy Bobongi.

There is no direct evidence either to link Samani Deffe (Polling Assistant at Mbua Vaua Valley Polling Station) with this personation; that he was instrumental in facilitating this personation and others. The only evidence adduced however which sought to implicate Deffe was in the conversation alleged by Kevin to have taken place on 7^th August 1997. When the contents of that conversation are analysed properly, there is very little to implicate him with this particular personation or indeed with the rest. All that his evidence amounted to was that Deffe had told him that had he gone to see him at Mbua Valley Polling Station where he was working, he would have given him a name to use. He did not say anything about voting for the First Respondent. Neither did he ask Kevin who he voted for. Also we do not know who Kevin voted for in the elections. If it had been for the Petitioner, then he would have been given a name to use so that he could vote for the Petitioner instead. In cross-examination, he conceded Samani Deffe did not ask him who he voted for and neither did he tell him who he voted for. It was therefore merely an assumption to say that Samani Deffe gave those names so that votes could be cast in favour of the First Respondent.

Paragraph 4(d) and (e):

The can be said in respect of Fred Toata and the claim by Laey Laeni Bata that he noticed Sas Laeni’s name had been crossed out when he went to cast his vote. Sas Laeni was at Malaita on the said day and therefore could not have been present in person to cast a vote. Fred Toata also confirmed in Court he was at Malaita on the said day and therefore could not have voted. Again the allegation sought to be raised was that this was part of the elaborate plan to aid and abet personation of persons who were not present to vote in favour of the First Respondent. Unfortunately, there is very little evidence to link Deffe with this. Not only was it never put to Deffe that he may have been a member of the VAY group, but the indirect evidence of Ivan Kevin did not come near to implicating him directly in such a scheme.

p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Paragraph 4(f):

The allegation made under this paragraph assumed that Sauminia Laeni had voted in the morning of that day but that her name had not been deliberately crossed out thus providing scope for personation. Sauminia was never called to give direct evidence on this. Bata Laenia's evidence was based on hearsay evidence, that he was told by Sauminia that she had gone to cast her vote in the morning. I reject this evidence. But even if it were to be accepted, it is clear no vote was ever recorded against her name and so rules out automatically any allegations of personation.

Paragraph 4(g):

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The only evidence suggesting impropriety against Deffe came from the purported conversation alleged to have taken place between him and Kevin. There is however nothing or little in that conversation to suggest that those names were given so that those two so-called girls could cast their votes in favour of the First Respondent, or that Deffe was part of the elaborate plan to aid and abet personation. It is as much anyone's guess whether those two Casino girls did cast their votes if true, for the first Respondent. It is quite possible they may have cast votes for the Petitioner.

lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Deffe however denied specific reference to wo Casino girls who appearepeared drunk and were given names to use. He stated on oath he could only remember the name of one Casino girl who actually came and voted, but denied knowledge of anyone else. That girl (Carolyn Foasi) had been called and gave evidence denying any suggestions that other girls from the Casino might have accompanied her that day.

I am not satisfied it had been proven to my satisfactionhe evidence before mere me that Deffe arranged for any two Casino girls as part of an elaborate plan or scheme to aid or abet personation in favour of the First Respondent.

Paragraph 4(h)(i):

The only evidence of personatioRebecca Tari came from an i an indirect source. One of the Polling Agents Martin Posenau, for the Petitioner recalled being told by another Polling Agent Stanton Buka, that when the said student arrived to cast her vote she found her name had already been used. Unfortunately, when Stanton Buka gave evidence he could not recall this particular incident. Rebecca Tari was not called to confirm this. I am not satisfied on the evidence before me this had been established to my satisfaction on the balance of probabilities.

4(h)

Leave to withdraw the allegation in respect of Kaigikimua was made and granted during the hearing of the case.

4(h)(iii) & (iv):

It has been concedeevidence of personation has been produced and so alle allegations must be dismissed.

Paragraph 4(i):

Again has been very little evidence of personation and so the he allegations raised under this paragraph must also be dismissed

Paragraph 4(j):

I accept personation had been proven in respect of the registegistered voter Abunolo James but no evidence of any scheme or plan to aid and abet personation by an agent of the First Respondent. There is no evidence to suggest that the person who personated Abunolo James was anything more than a supporter.

Paragraph 5:

he allegation under this paragraph was that a voter by the the name of Everlyn Wilson Ulasi was registered twice at Naha and Mamulele Polling Stations with numbers 11:06:1019 and 11:07:426, and voted twice. In her evidence before this court however, Everlyn denied voting twice. She only admitted having voted at Mamulele Polling Station. I find her to be a truthful witness. She was confident, clear and unmoved in her evidence. I am not satisfied this person voted twice. What most likely happened with a similar name registered at Naha was that it might have been used by someone else. If any vote is to be disallowed, it should only be in respect of the vote cast at Naha.

Paragraph 6: (i) allegations of corrupt practices of aiding, abettibetting, counselling or procuring the commission of the offences of personation.

I haveady dealt with this submission indirectly and do not need teed to repeat myself. It must be dismissed.

Paragraph 6: (ii) treating:

p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Learned Counsel for the Petitioner has correctly conceded that there is e is insufficient evidence to prove wrong doing by the First Respondent. I set aside this allegation.

3. (PARAGRAPH 7) SECTION 78(1) [section 79(1) of the Revised Edition 1996] 96] OF THE NATIONAL PARLIAMENT ELECTORAL PROVISIONS ACT 1980:

Sub-paragraph 7(a):

The allegation under this sub-paragraph was raised againstpporter, by the name name of Suluburi, that he told people lining up to vote for the pineapple, the First Respondent's symbol. Unfortunately no evidence has been adduced in support of this and accordingly this allegation must be set aside.

Sub-paragraph 7(b):

The allegation is made against Elishah Safue, the First Respondent's campaign manager, that he told people waiting to vote for the sign of the pineapple. Witness called in support came from Beui Lamani (PW11). His evidence was that Elishah held one list containing names of people from the Lau Valley area and told whoever came past where he was sitting whether their name was on the list or not.

Elishah Safue was called to give evidence and be subjected to cr cross-examination. Safue denied holding any list in his hand and telling people whether their names were on the list or not. But even if that were so, I fail to see anything drastically wrong with that. A list of names is used to assist people coming to vote to check whether they would be able to cast a vote or not. If their name is not in the list, they would not be able to vote. Of-course like anything else, the list can also be mis-used for other unlawful purposes. Unfortunately that has not been established in this case; that Safue used the list for personation purposes for instance.

Sub-paragraph 7(c):

Thegation raised in the petition was that Robert Soeasi, a ca a campaign manager of the First Respondent, during the hours of voting told people lining up to vote for the pineapple. The witness called in support was again Beui Lamani. His evidence however consisted only of a reference to what he overhead Soeasi whispering to one woman, Ugata, who was standing in front of them, to vote for the pineapple; nothing about telling people lining up to vote for the pineapple or walking up and down telling people to vote for the pineapple.

In defence, Robert Soeasi was called. He denied being a campaign manager of the FirstFirst Respondent, though he conceded he, was a supporter. He also denied telling anyone to vote for the pineapple or whispering to any woman called Ugata and telling her to vote for the pineapple. But again even if this were true, I fail to find how this would amount to an offence against section 79(1) of the National Parliament Electoral Provisions Act 1980.

Section 79(1) states:

“No person other than a candidate shallshall within any building where voting for the election of a member of the National Parliament is in progress, or on any public way within a distance of fifty yards of any entrance to such building, bear or display any card, symbol favour or other emblem indicating support for a particular candidate or political party and no person shall within two hundred yards of any such building make any public address indicating support for a particular candidate or political party.”

he actions of Soeasi do not fall within the four corners ofrs of the offence created by section 79(1). They would be more of a private conversation if anything, between him and a close relative (note Soeasi described Ugata as a cousin sister). I find little evidence to support the ground pleaded that Soeasi told people lining up to vote for the pineapple.

Paragraph 7(d):

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The allegation raised here was that Benny Abana a supporter of the the First Respondent told people to vote for the pineapple. The main witness was again Beui Lamani. He stated Benny sat at the side of the line of people and told everyone who came past to vote for the pineapple.

What nevertheless was sought to be portrayed ining this ground was to show the kind of tactics adopted by the First Respondents campaign managers and active supporters, Respectfully however, I am not satisfied this had been established on the balance of probabilities.

4. (PARAGRAPH 8) IRREGULARITIES IN THE KOFILOKO VOTERS LIST:

What was alleged was that two pages (5 and 7) of the Kofiloko Voter's list were not available for most part of the morning on election day and so many voters who turned up could not cast their votes.

It is not disputed that when polling st, pages 5 and 7 of the Kofi Kofiloko Voter's list were missing. What is in dispute is the time it took for the missing pages to be restored to the Voter's list for use. Beui Lamani stated he went to cast his vote at about seven o'clock in the morning only to find the page on which his name was recorded in the list missing from the list of voters held by the Polling Assistants. He states there were many others who came only to find the same problem and so left. The missing pages were not made available until around twelve noon. He stated he was sure of the time as he had a watch at that time.

The First Respondent called a number of witnesses to the evidence of Lama Lamani. Robert Zutu, the Assistant Returning Officer for East Honiara Constituency gave evidence regarding the missing pages. He is a crucial witness in this case. He states he was informed about the missing pages at between 7.30 - 8.00 am. Both Maesua and Dausabea had gone personally to his office to inform him of the discrepancy. Zutu states he immediately printed out copies of the relevant pages and after showing them to Maesua and Dausabea he personally transported and delivered them to the polling station by about 8.15 am and told them to use them straight away. He was unshaken in his view about the time the incident was reported and attended to by him. He confirmed it was still quite early in the morning when the discrepancy was noticed and attended to by him.

Mr. Dausabea in his evidence before this Court confirmed the time the discrepancy was discovered at around 7.15 am. He had just cast his vote at Ilia Polling Station when he was informed by phone that those pages were missing. He said he drove straight down to the Honiara Town Council and arrived there at about 7.30 am. Mr. Maesua arrived shortly after in a taxi and they went in together to see Robert Zutu. He confirmed what was said in evidence by Robert Zutu. He also put the time the pages would have been restored to the list at around eight o'clock. He states in evidence he personally followed the white hilux Zutu was in until it turned off at Vura Road to go to Kofiloko whilst he drove on to his house. He states he received a phone call from his brother which led him to believe the papers were delivered at around eight o'clock.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Mr. Jamesmani, the Returning Officer for the East Honiara Constituenituency also confirmed in evidence that the matter was reported to him and attended to straight away fairly early in the morning. This is entirely consistent with the evidence led by Robert Zulu and confirmed by Dausabea.

Faced with such sevidence from reliable and objective witnesses who ha have no reason to lie, I find it very difficult to accept the evidence led by Lamani that the papers were not made available until about twelve noon.

I am satisfied on the evidence before me the correct time the miss missing pages would have been sorted out for use at the Kofiloko Polling Station was that given by Robert Zutu at around 8.15 am and not at twelve noon as described by Beui Lamani.

On the question whether trregularity amounted to any breach of the National Paal Parliament Electoral Provisions Act 1980, in my respectful view this must be answered in the negative. The hours of voting as stipulated under section 37(2) of the revised law, was to be from seven o'clock to five o'clock in the afternoon. The pages were made available soon after they had been found missing (at the most l -1 ˝ hours). Those who missed out in the early hours would have had ample time to cast their votes after half past eight in the morning. It wasn't the case where they were prevented from voting that day or told that they couldn't vote that day. There has been no evidence to suggest that those who were affected were never given any opportunity later that day to cast their votes. If a voter decided not to wait that morning for the relevant pages to be brought or to return later and cast their votes, that is their individual right to exercise. Nobody can force them to vote and equally I am not satisfied they had been deprived of their right to go to the polls and cast their vote. If anything, what occurred was a temporary suspension of the rights of those voters affected for approximately 1 ˝ hours only. That must surely be a minor irregularity.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> But even could have amounted to non-compliance with the Act, I am m am more than satisfied the voting was conducted in accordance with the principles of the Act and that the irregularity did not affect the result of the election. It was addressed as soon as it was discovered. There was no evidence of improper delay either or impropriety, on the part of the Polling Assistants such that it could be said there was an attempt to interfere with the voting at Kofiloko Polling Station, and far from being condemned by any ordinary man as a "sham or a travesty of an election by ballot" (see Morgan and Others v. Simpson and Others (1974) 3 All ER 722 at 731). It was more an inadvertent oversight, but handled and dealt with promptly and efficiently.

PARAGRAPHS 9 0:

These have been dealt with.

ORDERS OF THE COURT:

1. Dismiss paragraphs 4(c), 4(d), 4(e), 4(f), af), and 4(j) - personation proved, but did not affect result of the election.

2. Dismiss paragraphs 4(h), and 4(i) - i) - personations not proved.

Dismiss paragraph 5 - pers personation proved in respect of name of Everlyn Ulasi at Naha but did not affect result of election.

4. Dismiss paragraphs 6 - 10 in their entiretyirety.

5. Determine pursuant to section 84(3) of the National Parliament (Electoral Provisions) Act 1980 (1996 Revised Edition) that the First Respondent was duly elected.

.

ALBERT R. PALMER
THE COURT.>