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High Court of Solomon Islands |
IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)
Civil Case No. 344 of 2010
BETWEEN:
SEVERINO NUAIASI
Petitioner
AND:
JOHN MANENIARU
First Respondent
AND:
PETER FAALIMAE
(Returning officer, West Are 'Are Constituency)
Second Respondent
Date Hearing: 30 September 2011
Date Decision: 9 November 2011
A Nori for Petitioner
P Afeau for First Respondent
D Damilea for Attorney General
JUDGMENT
Mwanesalua J:
1.1 This is an election petition filed by the Petitioner, Mr. Severino Nuaiasi, on 14 September 2010 after the general election was held on 4 August 2010. The Petitioner was the runner up candidate with 1,178 votes. The Respondent Mr. John Maneniaru, who was declared winning candidate with a margin of 103 votes, and the current sitting member of Parliament for the West Are'Are Constituency, in the Malaita province.
3.1 What is a Corrupt or Illegal Practice? In relation to this question, Foukona J in the case of Maina -v- Magga HCSI- CC 288 of 2006 cited Halsbury's Laws, Vol. 15, page 419 (footnotes) that:-
"Corrupt imports intention, does not mean wickedly, immorally or dishonest, or anything of that sort, but doing something knowing that it is wrong and doing it with the object and intention of doing that thing which the statute intended to forbid".
3.2 In the case of Alisae -v- Salaka, (1985-1986) SI, LR 31 Wood CJ stated that –
"There is a clear distinction between treating and bribery in two respects, first as it affects the candidate, and secondly as it affects the voter. In bribery there must exist a corrupt arrangement, but not so in treating, where voters are sought by a display of generosity". S.71 of the Act is drafted in similar terms to the United Kingdom legislation and commenting on that legislation dealing with this section Blackburn J said:
".....corruptly there does not mean wickedly, or immorally or dishonestly or anything of that sort, but with the object and intention of doing that which the legislation plainly means to forbid. In fact giving meat or drink is treating, when the person who gives it has an intention of treating....and...not otherwise and in all cases where there is evidence to show that meat or drink has been given, it is a question of fact for the judge whether the intention is made out by the evidence which in every individual case must stand upon its own grounds."
3.3 In relation to section 71 (a) the Act, Wood CJ stated:
" In s.71 (i) (a) of the Act which forbids treating, that is, corruptly providing food, drink or entertainment for the purpose of influencing the vote, the word corruptly does not mean wickedly, immorally or dishonestly, but it rather means with the object or intention of doing what the legislator forbids."
3.4 His Lordship Wood CJ, then went on to say in relation to section 72[1] of the Act that:
"Corrupt means doing the thing which the legislature forbids. The question whether the intention was to influence the vote must depend upon circumstances and the manner in which the refreshment was given, the time when it was done and very much upon the nature of the entertainment".
3.5 In the case of Ulufa'alu -v- Saemala (1993) SIHC 31 Muria CJ stated, it thus:-
"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".
Two things must therefore be established by evidence –
4.1 The elements of bribery as set out is section 71 (a) of the Act as follows:
(i) Any person or his agent who directly or indirectly
(ii) Gives, lends,
(iii) Agrees to give or lend
(iv) Offers, promises or promises to procure
(v) Endeavour to procure
(vi) Any money or valuable consideration
(vii) to or for any elector or any person on behalf of the elector or to or for any other person
(viii) in order to induce the elector to vote or refrain from voting or
(ix) corruptly does any such act as aforesaid on account of any elector having voted or refrained from voting, at any election.
5.1These are set out in section 72 (1) (a) of the Act as follows-
(i) Any person or his agent who
(ii) Corruptly
(iii) Before, during or after an election
(iv) Directly or indirectly
(v) Gives, provides or pays or
(vi) Promises to give or pay
(vii) The expenses of giving or providing food, drink, and entertainment to any person
(viii) For the purpose of corruptly influencing that person or any other person to vote or refrain from voting.
5.2 Subsection 71 (1) (b) says that any elector who corruptly accepts or takes any such food, drink, entertainment or provision is also guilty of treating.
5.3 Section 72 (2) of the Act provides that:-
"For avoidance of doubt, it is hereby declared that the provision of any feast or other entertainment in accordance with established custom shall not be treating for the purpose of this section if the provision of that feast or entertainment is not for the purpose of corruptly influencing any person."
6.1 In the case of Maina -v- Magga HC/CC 228 of 2006, Faukona J. said-
"In Solomon Islands the test to be applied where allegation of corrupt practices is raised in an election petition case, has finally been settled in the case of John Maetia - v- Charles Dausabea, [16] which His Lordship Sir John Muria CJ said,
"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 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 equivocal in order to enable the court to be entirely satisfied that the allegation of corrupt practices is 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".
6.2 His Lordship Faukona J. then went on to say that-
"The test was adopted in the case of Gigini v. Notere HC/CC 09 of 2002 with approval. Therefore, to lay things at rest, it is with no doubt the standard of proof to be applied in election petitions, in particular, where the issues of corrupt or illegal practices were raised; is that the court must be satisfied to its entire satisfaction that the allegations are made out.
The test is higher than the balance of probabilities but lower than the criminal standard of proof beyond reasonable doubt. It is a half way test between the civil and criminal standards of proof."
6.3 In the recent High Court case of Fono -v- Fiulaua HCSI CC 335 of 2010, p.2 at para 8, Goldsborough J. said-
"However expressed, it appears that the standard of the balance of probabilities as applied to civil proceedings is not a sufficiently high standard of proof where an allegation of bribery, treating or undue influence is alleged."
7.1 The first allegation was that the first Respondent supplied large quantities of food consisting of rice, tined food, coffee, tea and sugar to his campaign supporters through Mr Joe Kasiwai to distribute them to electors between Waisisi and Wairokai Villages in the West Are'Are constituency, for the purpose of corruptly influencing the electors to vote for him. The petitioner relies on the sworn Statement of Sisio Houhaka to substantiate this allegation. According to his sworn Statement, Mr. Houhaka deposed that a load of cargo was supplied by the first Respondent for his awareness and campaign committees in West Are 'Are. The cargo was brought from Honiara by Mr Kasiwai, the Chairman of the committees. The cargo consisted of cartons of coffee bottles, bales of sugar, navy biscuits and blocks of tobacco which were shared amongst the 9 zone committees. On cross-examination on the quantity, Mr Kasiwai confirmed that each of the 9 zone committees was given a carton of navy biscuits, 2 bottles of coffee, half block of tobacco and 2 to 3 packets of sugar. Although Mr. Houhaka said that he was aware that further supply of cargo was supplied to the committees, he did not produce any evidence regarding that further supply of cargo to the committees.
7.2 The First Respondent relies upon the evidence of Mr Kasiwai and Mr Beato Roma Apaniai to counter this allegation. In response to Mr. Houhaka's evidence, Mr. Kasiwai deposed that he and Mr. Apaniai went to Honiara to consult, brief and convey to the First Respondent about the zone committees' request for some coffee and biscuits for their zone committee meetings. That was about November 2009. The Frist Respondent responded to the request by giving them 1 carton of coffee bottles, 2 bales of sugar 500grams, 9 cartons of navy biscuits and a few sticks of tobacco. Mr. Kasiwai denied receiving further supplies from the first Respondent which was confirmed by the First Respondent himself. Mr. Kasiwai said he and Mr Apaniai took the goods home on M.V Haurosi and not on M.V Baruku as alleged by Mr. Houhaka, and distributed the goods amongst the 9 zone committees for their use during their own meetings and not for distribution to other electors. Mr. Apaniai confirmed Mr. Kasiwai's evidence in his sworn Statement evidence. He said, the food was merely enough for one committee meeting, of each of the First Respondent's 9 zone committees. There is no evidence from the Petitioner to show that food sent to the 9 zone committees were ever distributed to electors as claimed by the Petitioner. The goods were solely consumed by the First Respondents committee members. This first allegation therefore fails and is dismissed.
8.1 The Second allegation made by the Petitioner against the first Respondent was that the First Respondent paid large sums of money to a large number of electors from his Constituency, for the purpose of bribing them to vote for him during the election. In support to this allegation, the Petitioner relies upon the sworn Statements Mr Peter Hauia and Mr Harold Kausimae. Mr. Hauia deposed that during the month of May 2009, he learned that the First Respondent was handing out money to potential voters from West Are'Are Constituency at his office in Honiara; that he deposes that he saw Mr. Naohaoru entering the Respondent's office, and when Mr. Naohaoru came out, Mr. Naohaoru told him that he was given money by the First Respondent to refill his drum of petrol; he deposes that he saw many people going in and coming out from the First Respondents office; and he then said, that there was no doubt in his mind that people were going into the First Respondents office to receive money from the Respondent. Mr. Naohaoru denied ever accompanying Mr. Hauia to the Respondent's office. He denied telling Mr. Hauia that he received money from the First Respondent. Mr. Silvario Paina did carry a large amount of cash to the first respondent's office. This money was clarified by Mr. Aloysio Poi'ohia that it belongs to his young brother, Pius Maemae. Mr.Poi'ohia said that the money composed of fares and freights for a chartered ship to West Are 'Are. The first Respondent said he gave $150.00 to Mr. Kausimae in June 2010, but the First Respondent explained that the money was for Mr. Kausimae to pay his boat passage home to work as the First Respondent's campaign agent along the Wairaha River during the election. Mr. Kausimae never did any work for the first Respondent. Mr. Hauia merely heard that the First Respondent paid potential voters. This evidence is hearsay and it not admissible to prove that First Respondent did pay money to the voters who came to see him in his office. There is no evidence of bribery by the First Respondent to any electors who came into his office as described by Mr. Hauia. This allegation of bribery has not been proved. It fails and dismissed.
9.1 The crucial question on this allegation is whether there is evidence of intention to treat. The evidence is that meat and food was eaten both by non-electors and electors; the music attracted both non-electors and electors; people attend the opening of this campaign whether as non-electors and electors have same share of the meat and food during breakfast, lunch and dinner on 11 July 2010; lunch of campaign has become a practice in West Are'Are Constituency occurring far back as the 1970s to the one held on 11 July 2010; the Petitioner also launched his campaign with food and 7 pigs with many people attending the event; the First Respondent launch his campaign about 4 weeks before election on 4 August 2010; there was an announcement during the launch that electors present were not obliged to vote for the First Respondent, but were free to cast their votes on candidates of their own choice; the level of food eaten at each meal provided was proportionate to the number of people attending; the court is doubtful about the accuracy of an alleged statement made at the launch, that is to say, "if you want to win vote for John" The witness on this statement seemed to be Mr. Hauia. Ms. Modesta Patanikeni deposed that she was sure that Mr. Hauia was not present at the launch. There is also doubt about the truth and accuracy of this statement as the Petitioner's witnesses said that the First Respondent launched his campaign on 12 to 13 July 2010. In the circumstances, there was no intention to treat on the part of First Respondent and his agents.
10.1 On ground 11 of the petition it was alleged that the First Respondent was guilty of corrupt practice in that he supplied electors with ethanol in September 2009. The Petitioner relied upon the sworn Statement of James Horoto. The first part of the Statement relates to an event which he said occurred on or about 6 September 2009 at Tawainakera, at the residence of the First Respondent, where he claimed over 30 people were drinking ethanol diluted with soft drink, and that Mr Pius Maemae, the Respondent's younger brother, was doing the mixing. That whilst they were drinking, talking and joking one of them named, Siriako Wakio, said that they were to understand that only those who would vote for the Respondent should be allowed to drink. In paragraphs 10 and 11 of his sworn Statement, Horoto stated that there was a bag of ethanol bottles there and they must have drunk around 10 bottles. Each bottle was 1.5 liters in volume and this (1.5 liter bottle) when mixed would make up to 30 people quite drunk. When it was suggested to him in cross-examination that he was very drunk at the time (after drinking 10 bottles of ethanol) and anything said by the people there could not be taken seriously, he became inconsistent to the extent that he contradicted his own evidence in paragraph 10 and 11 of his sworn Statement saying that they only drink one bottle. In the Second part of his sworn Statement evidence (para 13-17) he made the following bare assertions without any evidence or proof that- (a) during the campaign period in 2010 ethanol was distributed freely by Pius Maemae; (b) ethanol supply started in late 2009 mainly to the supporters of the First Respondent; (c) each time Maemae arrived from Honiara he would bring ethanol with him; and (d) that Mr. Maemae supplied ethanol to Stephen Waina'ai.
10.2 Mr. Maemae denied mixing ethanol with pop drink on 6 September 2009. He was not present on that occasion as he was sleeping because on the night of 5 September 2010 he was involved in raising funds in aid of the Uhu Aid Post; Mr. Maemae deposed that the fund raising followed soon after the Aid Post was opened on the 5 September 2010. Mr. Maemae also denied freely distributing ethanol to electors; denied supplying ethanol to supporters; denied arriving from Honiara with ethanol; and denied that Steven Wainaiai was selling ethanol at $15.00 a bottle.
10.3 Mr Jimmy Maneniwai went to the First Respondent's residence on 6 September 2010 where he saw Mr. Maemae sleeping in a hammock and not awake during that day. Mr. Maneniwai also denied that ethanol had been supplied to people to support the First Respondent. Mr. Horoto deposed that on 6 September 2009, he heard Mr. Siriako making a statement at the First Respondent's place to the effect "while we are drinking we were to understand that only those who would vote for the Respondent should be allowed to drink." Mr.Wakio was not called to deal with this statement. It would seem that Mr. Hotoro's account of these words would be hearsay and inadmissible. There is no evidence to prove that Uhu Aid Post had been closed after the election on 4 August 2010.
10.4 There is no credible evidence of treating with ethanol before the court. This allegation fails and is dismissed.
11. Allegations 5 to 10
11.1 Allegation 5 claims that the First Respondent was guilty of treating and bribery when he supplied a carton of medicine to people
of Porepore village and promised to build a clinic for the village days before the election was held on 4 August 2010; Allegation
6 claims that the First Respondent was guilty of corruptly influencing electors when he supplied medicine for Uhu Aid Post, when
in fact the clinic was not approved by Malaita Provincial Medical Division; Allegation 7 claims that the First Respondent was guilty
of corruptly influencing electors when he supplied a large quantity of food to Nelson Puiaraha for the purpose of distributing to
electors; Allegation 8 claims that the election law was breached when ineligible electors were allowed to vote; Allegation claims
that 9 the electoral law was breached when ten people who were under aged persons were permitted to vote in the election; and allegation
claims 10 that the provisions of the electoral law was breached when the First Respondent supplied food and beverages on board M.V
Tafusibata while on her voyage to West Are'Are with electors to vote. The Petitioner did not provide evidence on these allegations.
They fail and are dismissed.
Decision
In conclusion, the Petitioner has not proved to the satisfaction of the court that the First Respondent was guilty of bribery, corrupt practices and corruptly influences electors. The Petition fails and is dismissed.
Order:
(1) Election Petition fails and is dismissed.
(2) Petitioner to pay the First Respondent's costs.
THE COURT
[1] Prior to the Revision of the SI Laws in 1996 the current section 72 of the National Parliament (Electoral Provisions) Act was section 71 and hence the references to that section in the Salaka case.
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