Fono v Fiulaua [2011] SBHC 6; HCSI-CC 335 of 2010 (11 March 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Goldsbrough J)

BETWEEN:

FRED IRO FONO
Petitioner

AND:

JACKSON FIULAUA
Respondent

Date of Hearing : 24 – 28 January 2011 and 4 March 2011
Date of Decision : 11 March 2011

Radclyffe A for Petitioner
Hapa C for Respondent
Firigeni R for Attorney-General

DECISION

1. There was a General Election held in Solomon Islands on 4 August 2010. It was conducted under the National Parliament Electoral Provisions Act [Cap 87]. The present petition was filed in the High Court on 13 September 2010 by the petitioner, Fred Fono, a candidate at the election challenged which was for the Central Kwara'ae Constituency, Malaita Province. He was an unsuccessful candidate, the seat having been declared in favour of the Respondent.
   
2. The allegations made against the election are said to be actions of the respondent and his campaign staff, managers or agents. There are no allegations of misconduct of the election on the part of election officials under the Act.
   
3. Sworn statements were filed by all persons sought to be called to give evidence in the petition, and notice given by counsel to cross examine all witnesses whose evidence was to be presented. Thus no witness had their evidence admitted solely through the presentation of a sworn statement. In some instances the sworn statement was relied upon as evidence in chief, after the witness had been sworn in court and taken through the formality of his or her statement. In some instances the sworn statement was not relied upon at all.
   
4. As no allegations were made against any election officials, the Attorney General appeared through counsel only to fulfil the requirement of Rule 27 Election Petition Rules 1976. By consent his representative was permitted to question witnesses called and to make submissions. As his position was that of amicus it was expected that he took no position on the petition itself but only on the law.
   
5. Absent withdrawn allegations, the petition alleged bribery, undue influence and treating. Bribery was alleged at Arabala, Aisalinga, Kwalo, Maoro, Fousadeo, Abetaba and Gwaisala Villages. Undue influence was alleged to have taken place at Mage and Abukwau and treating at Auki, Anosa, Kwalo, Bethlehem and Sufura, and Kilusakwalo villages. In submissions it is conceded by counsel for the Petitioner that there is not sufficient evidence to support the allegations in respect of treating at Auki and Bethlehem and Sufura villages.
   

Standard of proof

6. Where an allegation of election offences is made, consideration is necessary of the required standard of proof. That burden of proof rests with the petitioner and in Meatia v Dausabea [1993] SBHC 29 the High Court set out what it considered to be the appropriate standard, which it said is a standard higher than the balance of probabilities.
   
7. That a higher standard of proof is required when dealing with what is effectively a criminal allegation occurs elsewhere in law. It most often is referred to when dealing with allegations of contempt of court which may attract a penalty. In those cases it is often suggested that the standard of proof is closer to the standard applied in criminal cases In an Election Petition case in England and Wales R v Rowe Ex Parte Mainwaring [1992] 4 All E. R. 821 it was suggested that the standard was that of beyond reasonable doubt.
   
8. 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. Other cases suggest that rather than raising the standard:-
   

". . .the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities." R(n) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605.

9. In the case of this petition where serious allegations amounting to criminal offences are made, that higher standard, however expressed, will be applied.
   

General corruption, specific corruption and the effect of Section 9 of the Act

10. All of the allegations of bribery, treating and undue influence (save one) are said to have been committed by the candidate or his campaign agents. There is no allegation of general corruption such as is dealt with under section 66(2). These are allegations under section 66 (1) alleged to have been committed by the candidate elected or his agent. Section 66 (1) provides that:-
    

No election shall be valid if any corrupt or illegal practice is committed in connection therewith by the candidate elected or his agent.

11. Section 66 (1) does not suffer the qualification found in section 66 (2). That qualification is that the corrupt or illegal practices or illegal payments, employments or hirings committed in reference to the election must have so extensively prevailed that they may be reasonably supposed to have affected the result. Counsel for the Attorney General submits that section 66 (1) should be so qualified.
    
12. Support for the contention that the first subsection should not be so qualified can be variously found. The words of subsection 1 and clear and distinct. There is no ambiguity such as to require external assistance in their interpretation. There is an obligation to give effect to those clear and unambiguous words. There is no conjunctive expression between the two subsections. They speak of different subjects. Subsection 1 speaks of what elsewhere is described as 'specific' corruption, as opposed to subsection 2 which speaks of 'general' corruption. Subsection 1 is confined to actions of the candidate elected or his agent. Subsection 2 is not so qualified.
    
13. Further support for not allowing subsection 2 to qualify subsection 1 can be found in section 76. Describing further consequences of a conviction of a corrupt practice, it provides that in addition to any other punishment, the offender shall be disqualified during a period of five years from the date of his conviction— (a) from being registered as an elector or of voting at any election; and (b) from being elected as a member of the National Parliament or, if elected before his conviction, from retaining his seat as such member.
    
14. If the consequence of a criminal conviction for corrupt practice (which section 70 defines as bribery, treating or undue influence) is to be disqualified from retaining one's seat, it would seem both improbable and illogical that a corresponding provision in relation to the consequences of an election petition based on allegations of corrupt practice would not be similar. This leads me to conclude that Section 66 (1) is self-contained and need not rely on 66 (2) to impart its meaning.
    
15. At this point it may be convenient to discuss the implications of section 9 of the Act wherein it is provided that:-
    

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.

In Holosivi & Ors. V Vahoe & Returning Officer for Malaita Outer Islands HCSI 223 of 2006 Faukona J in dealing with allegations of corrupt practice said, obiter, that there must be evidence sufficient not only to prove the corrupt practice but also that the corrupt practice must have affected the result of the election. His remarks were obiter in that he did not find evidence sufficient to establish any corrupt practice and therefore was not obliged to rely upon any decision as to the application of section 9.

16. The Act as a whole makes provisions for the parliamentary constituencies for the national parliament, for registration of electors, for the conduct of elections, for the hearing of petitions in in relation to such elections and provisions related thereto and consequential thereupon. Section 5 requires that the election of members of the National Parliament shall be in accordance with the provisions of the Constitution and this Act. As already set out section 66 (1) provides that an election shall not be valid if a corrupt or illegal practice is committed by the candidate or his agent. Thus is can be said that where an election can be shown to involve the commission of corrupt or illegal practice by the candidate or his agent, the election cannot be said to have been conducted in accordance with the principles of this Act.
    
17. It is the qualification contained within section 9 that, perhaps, was overlooked in the earlier decision of Holosivi. In those paragraphs where the judge deals with the section there are no references to 'in accordance with the principles of the Act' but only references to 'affect the result'. For those reasons, I take a different view to that expressed obiter in Holosivi.
    

Allegations of bribery

18. The allegation of bribery at Arabala Village arises because of the evidence of Jeff Sauiroa and his brother Ben Bua'alea. They are both registered electors in the relevant constituency. They both allege that they were given money by an agent of the winning candidate, who they name as Ben Bau. Their evidence is that Ben Bau came to them and invited them to his house for tea, during which visit he handed over $50 to Jeff and $100 to Ben (Benwell). I am not satisfied on their evidence that Ben Bau was indeed an agent for the winning candidate nor am I satisfied that the money was indeed handed over on this occasion by this man. Indeed one Ben Bau gave evidence for the respondent and his evidence was most clear and I accept it as a true story that he did not invite these brothers to his house for tea. His evidence was to the effect that their village strongly supported the Petitioner and there was little to be gained in trying to influence anyone in that village. I do not find this allegation made out to the required standard.
    
19. At Aisalinga Village $2000 was handed over on behalf of the respondent to the household of Thomas Abisia. The wife of Thomas Abisia has a brother, Billy Toi'tona. Billy Toi'tona visited his sister and was told of a fire that had taken place in her small kitchen. He provided some money to assist in the reparations, and did as he was asked and reported the misadventure to the respondent. In turn the respondent provided $2000 in cash which he himself delivered to the household. This all took place during election time and it is said on behalf of the Petitioner that this money amounted to a bribe. I do not accept that this is made out to the required standard. I find that the money did come from the respondent, was $2000, was handed over to the household but was not a bribe.
    
20. Of the building material delivered to Kwalo Village in June 2010, I find that this material was delivered as alleged, was provided by the respondent but was material ordered well in advance of the election and its delivery delayed. I do not find that its provision had anything to do with the election as alleged by the Petitioner.
    
21. Of the allegation of bribery by Chillion To'ofoloa of Michael Maelengu which is alleged to have taken place at Maoro Village on 30 July 2010, the court heard evidence from both of those men. Mr Maelengu gave evidence of attending a campaign meeting, of meeting the respondent and one of his campaign managers Mr To'ofoloa. He did not need to be introduced to Mr To'ofoloa as they are relatives. He had not met the election candidate before. He says that his uncle sought him out after they had spoken and gave him $100 to induce him to support his candidate, the respondent. His evidence was delivered clearly without prevarication. There was little cross examination of his evidence and no inconsistencies resulted from that cross examination. The evidence of Chillion To'ofoloa confirms that he is a campaign manager for the respondent and that he travelled around with the same candidate during the campaign. He denies being given money by the respondent and denies being where Mr Maelengu says the money was handed over when it was said to have been handed over. Towards the end of his evidence he became confused and was unable to answer questions with answers that related to the question asked. His notion that he became a campaign manager through his own choice and not through being invited or asked by the candidate was a little confusing. His denial was based on his recollection that the campaign meeting in Maoro was on 27 July and not 30 July and that he did not give money in any event to Mr Maelengu.
    
22. In his evidence Mr Maelengu said Mr To'ofoloa had sought him out after the three had talked by asking some boys. None of those boys were called to give evidence. There is nothing else supporting his assertion that he was given $100 by his uncle and that this was for support for the candidate, nor any other evidence that the money was handed over when it was alleged. In those circumstances and given that the standard of proof required this allegation of bribery is not made out.
    
23. At Fousadeo Village it is said that the respondent himself handed out $50 to each of three women who had attended his election rally. The respondent in his evidence denies that this giving of money took place. He agrees that there was a campaign rally at this village one Tuesday although does not agree with the date given in the statements by two of the women. I find as a question of fact that the rally was held on a Tuesday in July and that both witnesses who said it took place on 26 July 2010 were wrong when they said that. Naomi and Hilda gave evidence of this giving of money and both said they were in the company of another woman called Raellyn Billy. Raellyn Billy did not give evidence. The evidence of both women, Hilda and Naomi was similar, a handing over of money by the respondent without any words spoken or ideas otherwise exchanged. They both speak of seeing the others receive money. The evidence from Hilda was not clear. My note taken at the time I heard her evidence was that it was not of a sufficient standard to establish anything to the requisite standard. That opinion is re-enforced when I consider that the third woman said to have received money in these circumstances is not called to give evidence.
    
24. The reason given for indicating in their statements an incorrect date was that the lawyer who took the statement "just said a date" and "I agreed with it" (evidence of Naomi). I find as a fact that this is what indeed happened and it raises a much broader question relating to evidence on behalf of the Petitioner in this case. One lawyer was responsible for preparing all of the witness statements for the Petitioner. It is not the lawyer who represented the Petitioner at this hearing but another lawyer who was also a witness for the petitioner.
    

Comments of the preparation of sworn statements

25. Several statements filed in these proceedings were made by people who neither speak nor write English and yet they were written and sworn in the English language without recital of the fact of being translated or read back to the deponent in any particular language. This causes the court some concern as it is not possible to be sure that the person speaking knows what was written down on their behalf. It is incumbent on anyone who prepares a statement for another that they ensure, if the statement is recorded in a language which the deponent does not habitually speak or read, that the statement is read over to the deponent prior to signing and swearing as true. If this does not appear on the face of the statement, it is incumbent on the Commissioner of Oaths to ascertain that the correct procedure has been followed.
    
26. There are good and substantial reasons for this practice to be followed. There are serious consequences to swearing false material and it would be wrong for anyone not to know exactly what it is they are swearing to. Sworn statements are important and significant documents and must be prepared and treated with respect. They could ultimately form the basis for a court judgment.
    
27. If a deponent cannot be said to understand the language of the statement and there is no evidence that it was translated for them, how can it be asserted that the words in the statement are that of the deponent? How can a deponent be found to have committed perjury where they do not know what the words are that they are supposed to have said?
    
28. Here the suggestion is that the evidence was not that of the witness but of the statement recorder, which is not supposed to be the case. If sufficient care had been shown in the taking of the statement and in reading it back to the witness such a situation should not have occurred.
    
29. A similar situation arises when one considers the evidence of allegations of the gift of rice in Auki. Two witnesses said in their statements that they were to be given money to buy rice, and yet in evidence their story was that they were to be given rice from the Rarasu Motel. It was clear that their real story had not been recorded correctly in their statements and that their true story was not contained in those statements. There was much confusion when counsel for the Petitioner asked questions in evidence in chief trying to elicit the information contained in the witness statements when the witnesses wanted to say something quite different
    
30. More significantly a witness for the respondent gave evidence that he refused to sign a statement drafted by the same lawyer on his behalf. This evidence was contained in the evidence from Philip Ragi (also known as Philip Buna or Philip Ragi Buna). His sworn statement was tendered without objection. In it he recounts meeting with a lawyer for the Petitioner (not the Petitioner's present counsel in this hearing) and seeing a draft statement for the first time at the Magistrates' Court where he was expected to swear the contents. At the magistrates' court was another person not the lawyer who prepared the statement. The witness testified to the content of his draft statement not being true, and that he refused to sign it because it contained not history but the story the preparing lawyer wanted him to tell. There are competing allegations of the witness asking for money, being promised money and solar panels for signing the statement and of receiving money to make his final statement denying the first.
    
31. Given the complexity of the allegations it might have been difficult to know where the truth lies. It is clearly a fact that the first statement was drafted. That is established as it is an exhibit to the sworn statement of Philip Ragi filed 19 November 2010. It is equally clear that he did not swear the statement. One reason for that is contained in his evidence before the court, that it was not a true statement. A reason proffered by the Petitioner in cross examination questions was that because the Petitioner was not prepared to pay money or provide goods in consideration for the statement, the witness decided to try his luck with the respondent. This would explain the suggestion, again in cross examination, of the witness making a gesture to the lawyer who prepared the statement suggesting it was all about the money.
    
32. Given the problems earlier referred to in the taking of statements by this same lawyer, I cannot safely conclude that the story contained in the unsworn statement was ever the story of this witness, and whilst one might not accept his present evidence as reliable given the competing claims of financial inducement, one cannot conclude with any certainty that his present evidence is false. The effect that this has on the evidence for the Petitioner as a whole is to reduce its reliability to something less than it should be to expect to succeed.
    
33. That this is the case at all is regrettable. That the situation has been caused by a qualified and practising legal practitioner is most disappointing.
    

Treating

34. On the hosting of parties and the distribution of food, the evidence of Eddie Manu through cross examination was reduced to nothing admissible. He agreed that he saw no food and was only told about it by others. Part of that allegation was in any event withdrawn by the Petitioner. Evidence from the householders where it was said that parties had been hosted was sufficient in my view to negate the evidence that the parties were events to induce strangers to vote for the candidate. I am satisfied that they were legitimate, if undeclared, events to provide food and refreshment for campaign workers after a long days' work. That is not unreasonable and unexceptional as far as campaigns go. The evidence from other villagers was remarkable only in that none of them could have seen all that they said they saw. Each saw from their own vantage point and suggesting that they saw all of the events when in practice they could not have seen so many varied locations all at once indicates the lack of reliability in their evidence.
    

Undue Influence

35. Two witness gave evidence of what they heard said about the use of violence. Margaret Oromae gave evidence to the effect that Alphonse Kisita said that if the Petitioner was elected there would be a riot in Auki. Alphonse Kisita is acknowledged in these proceedings as campaign manager for the respondent. Her evidence was that he said this to her privately and not as part of a meeting. He gave evidence denying using the words attributed to him.
    
36. The outright denial by the campaign manager of uttering any threat puts counsel for the respondent in somewhat of a difficulty. Given that the evidence he has led suggests that the words were not used, he cannot make submissions on whether, if they were used, they amounted to undue influence. He therefore made no submissions on the point.
    
37. Undue influence is defined as the threat of the use of force or violence in order to induce or compel a person to vote or refrain from voting. There is nothing in the evidence here to indicate whether, if indeed the words were used, as to whether the speaker was doing more than predicting what, in his view, may have been the consequences of the re-election of the Petitioner. The latter part, inducing a vote, seems to be missing. It could, perhaps, be inferred from the circumstances but here since the speaker was engaged, if the event took place at all, in a private after rally conversation, any inference would necessarily include that he was not trying to cause general fear and despondency amongst a large group which he might have done.
    
38. I am not satisfied to the requisite standard that these remarks, which I do find were made to Margaret Oromae by Alphonse Kisita, amount to undue influence.
    
39. The second incident described in evidence was described by Emmy Kwato'o. Her evidence was of hearing a threat from a nephew of a former MEF leader that guns would be used if the Petitioner was re-elected. This evidence was not challenged by the respondent through any evidence. In answers to cross examination she said she knew that the speaker was a supporter of the respondent although the rally was for another candidate. There is no evidence that the speaker was any more than a supporter of the respondent. There is no evidence that he was an agent of the respondent and therefore the allegation falls within section 66 (2) and must be accompanied by evidence of the extent to which this type of behaviour prevailed. That evidence is lacking.
    
40. I have dealt with allegation of treating earlier but complete this part with consideration of the allegation of giving a soccer ball to a group of youths. This was said to have involved Alphonse Kisita and was said to have taken place on 3 August 2010. On the balance of probabilities I accept that Alphonse Kisita was in Auki that day and not at the place where the ball was said to have been given. I cannot find to the requisite standard that this allegation of treating has been made out.
    

Evidence generally

41. It may be that I have been unduly influenced in considering the evidence by the poor performance of the lawyer who compiled the original witness statements for the Petitioner. It is difficult not to be so influenced because I am satisfied that some of the statements did not reflect what the witness wanted to say. At the very least the stories were embellished and at worst were fabrications. Given this scenario, what might have been strong evidence becomes tainted and cannot found the basis for findings where the standard of proof required is that the court must be entirely satisfied.
    
42. Conscious of this danger I have looked again at all the evidence yet remain of the same conclusion that the Petitioner has been unable to demonstrate to the requisite standard, applying the tests as set out in this judgment, that the Court should find in his favour.
    

Decision

43. In the event the petition is dismissed. The Petitioner will pay the costs of the respondent such costs to be agreed or taxed.
    

Dated this 11th day of March 2011

GOLDSBROUGH J