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Lovantila v Returning Officer North East Guadalcanal Constituency [2012] SBHC 106; HCSI-CC 348 of 2008 (13 September 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).


Civil Case No. 348 of 2010.


BETWEEN:


ALFRED MANE NGELEA LOVANITILA
Petitioner


AND:


Dr. DEREK SIKUA
First Respondent.


AND:


RETURNING OFFICER FOR NORTH
EAST GUADALCANAL CONSTITUENCY
(Represented by the Attorney-General) Second Respondent


Dates of Hearing: 7/3/2011-7/3, 16/3 - 18/3, 23/3 - 25/3, 5/5/- 6/5, 9/5- 10/5, 13/5, 16/5, 18/5 - 19/5, 7/6 - 9/6, 27/6, 28/6 - 29/6, 4/7 - 6/7, 8/7, 11/7 – 13/7, 27/7, 29/7, 1/8/2011, 4/8 - 5/8, 11/8 – 12/8, 15/8 – 17/8, 19/8,7/9,6/10,11/10,12/10,13/10,14/10,25/10,26/10/2011,5/4/2012,26/4, 1/5/2012, 3/5/2012, 8/5/2012, 9/5/2012, 29/6/2012.


Date of Judgment: 13th September, 2012.


Mr. M. Pitakaka for the Petitioner.
Mr. G. Suri for the First Respondent.
Mr. J. Muria (Junior) for the Second Respondent.


JUDGMENT.


Faukona J: On 4th August 2010, Solomon Islands citizens went to the polls to elect members of the 9th Parliament. The date was appointed by way of Proclamation by the Governor General pursuant to section 24 of the National Parliament (Electoral Provisions) Act, herein after called the "Act". This was done on the 22nd of June, 2010. After the Proclamation the Returning Officer pursuant to Section 25 (1) (b) issued a notice stating the date, place and time at which nomination papers are to be delivered before date of election. Practically intending candidate will be publicly known after the nomination papers were filed.


2. Nevertheless, often in all situations, intending candidates did secretly hint their intentions well in advance before the date of proclamation. As well, the Act is silent about when will campaign commences. One may suggest after the Proclamation. Other may say after filing of nomination papers. In my view, the latter is more appropriate because by then the names of candidates would have emerged. Practically it would appear that campaign started earlier than the Proclamation date. However, such activities may not be perceived as contrary to the law, as the law itself stand mute and silent.


3. This election petition was filed pursuant to section 83 (1) of the Act and the Election Petition Rules 1976 "The Rules". It contains allegations as against the 1st Respondent, corrupt and illegal activities on the grounds of bribery, treating and undue influences. As against the 2nd Respondent are allegations of breaches of statutory rules governing the conduct of the election.


4. Generally the petitioner alleges that before or during the national general elections, the 1st Respondent was by himself and his agents Henry Tobani, George Palua, Adrian Butu, Chief Tagabasoe, Philip Buto, Warren and Father Mantha guilty of corrupt procuring the commission of the offences of bribery, treating, personation, and undue influence contrary to the provisions of sections 66, 71 (a), 71 (c), 71(e), 72 (1) (A), 73, and 74 of the Act, in that the 1st Respondent and his agents procured named voters in the North East Guadalcanal Constituency to vote for the 1st Respondent. As such the election of the 1st Respondent as a member of Parliament representing that constituency be declared void on the grounds of bribery at five locations, undue influence that is treating at Kolosulu Village and breaches of statutory rules governing the conduct of the election.


The Law:


5. The law governing the conduct of national general elections is well covered by the Counsels representing the parties. Suffice to say that the Act criminalizes the act of bribery, treating under section 72 and undue influence under section 73. General penalty is expressed by section 70 for any breaches. Should the Petitioner can prove that the elected candidate (first Respondent) or his agent had committed or involve in any corrupt or illegal practices the election result shall be declared void according to section 66 (1) of the Act. See also the case of Fono v Fiulaua[1] and Tosika v Tran.[2]


6. Very significant was what Chetwynd J stated in paragraph 5, page 2 of Tosika's case.


"In essence, one incidence of corrupt or illegal practice by the person elected or any of his agents would be sufficient to render the election void".


7. In fact Justice Chetwynd was reinforcing Section 66 (1) of the Act which Justice Goldsbrough had touched on earlier. Having said that it would appear that Section 66 (2) which covers wide range of corrupt or illegal activities would remain mute and inapplicable because it would be difficult to prove that such activities would reasonable supposed to have affected the result. Any Petitioner in his right mind would resort to Section 66 (1) and not Section 66 (2) of the Act, which expressed no ambiguity in them.


8. Whilst I agree with my brother Judges, the intent of Parliament so for as subsection (2) is concerned has to be critically considered in particular circumstances where forbidden activities involve less number of people than the winning majority? The Courts ought to have looked into why the winning candidate wins? It further extends the question; has a voter freely exercise his constitutional right to elect a candidate of his choice? Thus the process of one exercising his voting right is one aspect ought to be taken into account. Corrupt or illegal activities must directly link to actual casting of ballot paper; in my view that's how a winning candidate wins an election, that he wins it by corrupt or illegal means and not cleanly. Secondly it is easy to fabricate evidence to proof a single incident involving small number of voters to render election void. Thirdly, so often everyone is concerned about the election results marshaling effort to render it void but no one bothers about prosecuting the guilty person.


9. The consequence arising from corrupt or illegal activity prior to, or during elections; are deemed to be guilty if proven to have been existed. Of course an unlawful act, criminal in nature, requires a standard of proof almost equated with the criminal standard, but not really there.


10. It is a well settled law in this jurisdiction that the burden of proof in election petition is on the Petitioner and that the standard of proof required is higher than the balance of probability and lower than the criminal standard. The test was first enunciated in the case of Alisae v Salaka[3] in which His Lordship Wood CJ stated on page 4, paragraph 6;


"My conclusion from the cases cited are that where in an election petition allegations of corrupt or illegal practices are made the standard of proof is that if I am to uphold the petition the ground of it must be proved to my entire satisfaction and I must be sure that the ground has been made out:"


11. The same proposition was adopted in the case of John Maetia v Charles Dausabea[4]. In the most recent case of Inoke v Tran,[5] His Lordship Chetwynd echo the same and stated at paragraph 8:


"At this stage it is necessary to consider what proof is required in these proceedings. It is settled law in this jurisdiction that the burden of proof in election petitions alleging corrupt or illegal practices is on the Petitioner. The standard of proof is very high. The grounds must be proved on the balance of probabilities but the standard of proof is a higher standard than in normal civil cases. The Court must be convinced or entirely sure of the evidence before making a finding"


12. Further to that is the issue of definition of corrupt or legal practice. Mr. Pitakaka quoted from Halsbury's laws vol. 15, page 419 as cited in Maina v Maga[5]. In a nutshell corrupt or illegal practice imports intention to do something knowing that it is wrong and doing it with the object and intention of doing that which the statute intended to forbid.


13. From Halsbury's definition which by large is certainly accepted, the intention is an element which ought to be proved as being existed in offences related to elections. His Lordship Chetwynd J deals with one of the illegal activities of bribery. In the case Inoke v Tran[6], His Lordship said;


"On the question of whether the gift is meant to be charitable or a bribe the answer depends then on the motive and timing. Once fixed with the appropriate label, that is "Charitable" or "bribe" it seems that label is permanently fixed. The adhesive that fixes label appear to be motive."


14. In concurring to His lordship exponent, it would be appreciative that in all, whether a voter cast his ballot for the winning candidate or not, is a non-issue. The offence actually occurred even prior when the intention materialized at the time of the illegal transaction, coercion or undue influence. It is a question of fact and must be proved by factual evidence.


Agency:


15. I noted from Mr. Pitakaka's submissions of which he quoted a paragraph from the Wakefield case[7]. The concept of agency is a settled law in England, in particular, when related to an election. A significant proponent of the case is outline as follows;


"Accordingly, a wide scope has been given to the term "agency" in election matters, and a candidate is responsible generally, you may say for the deeds of those who to his knowledge for the purpose of promoting his election canvass and do such other acts as may tend to promote his election, provided the candidate or his authorized agents have reasonable knowledge of those persons are so acting with that knowledge.


Agent covers a wide range of canvassers, committees and supporters. The candidate is taken to be responsible for their actions even though he may not have appointed them as agents. Knowledge of what they are doing does not need to be proved against a candidate for him to be fixed with their action"


The Allegations and evidence to prove.


Alleged bribery outside ZFM Studios:


16. The petition alleges that an agent and supporter of 1st Respondent, RW9 Tobani had given $500.00 to a voter registered in North East Guadalcanal Constituency PW2 Ngelea to vote for the 1st Respondent. At the time of the transaction, it was alleged that RW9 Tobani forced PW2 Ngelea to voter for the 1st Respondent because the 1st Respondent was their brother. From the sworn statement of PW2 Ngelea repeated the actual words said by RW9 Tobani four times in four different paragraphs.


17. RW9 Tobani was called as a witness for the 1st Respondent. He admitted giving the sum of $500.00 to PW2 Ngelea on 17th June, 2010, outside of ZFM studios, next to United Church. But denied coercing PW2 Ngelea to vote for the 1st Respondent. The question is was the giving of the $500.00 an act of bribery or an illegal activity so as to amount to corrupt practice, in coercing PW2 Ngelea to vote for the 1st Respondent. The second question is was RW9 Tobani an agent of the 1st respondent within the meaning of Agency expounded in Wakefield Case?


18. The circumstances surrounding the allegation are that PW2 Ngelea and RW9 Tobani had met previously on 10th June 2012, at the Honiara market. Their conversation canvassed quite a number of issues, including the burnt down of PW2 Ngelea's house and the assistance he sought from RW3 Palua as the Privately Secretary of the 1st Respondent, who at the same time coordinated the Rural Constituency Development Funds of the constituency. From that conversation PW2 Ngelea affirmed that his request for assistance to rebuild his house from RW3 Palua was refused. A matter related to who should be voted was also thrown into the conversation.


19. RW9 Tobani then sympathized with PW2 Ngelea hence offer to assist with $500.00 for the purpose of start rebuilding his burnt down house. He suggested that PW2 Ngelea to collect the money from him at his office at Ranadi on 17th June, 2010, his next fortnight pay period. On 17th June, 2010, PW2 Ngelea collected the money from RW9 Tobani outside of ZFM studios in Honiara. Upon giving of the money RW9 Tobani informed PW2 Ngelea to sort his problem with his two cousin brothers, RW3 Palua and the 1st Respondent.


20. The first issue here is has RW9 Tobani possessed the intention to bribe PW2 Ngelea to vote for the 1st Respondent by giving the $500.00. From the facts it appears that PW2 Ngelea at that time was without a roof to cover his head. In other words he was without a home. Any logical human would be convinced that it was a gift out of compassion in particular when such a disaster had its toll on a friend, a one talk or a relative.


21. RW9 Tobani denied any corrupt action and doing something knowing that it was wrong. In fact he expressed himself as a genuine sympathizer.


22. In answering the second question, RW9 Tobani as he admits, that he is neither a supporter nor an agent of the 1st Respondent. In fact he is tied up with work and could not afford time for politics. He denies in evidence that he voted for any of the six candidates who contested the seat, unlike 2006 general elections where he was involved.


23. On the question whether the gift is out of love and compassion by an independent sympathizer depends on the motive and timing.


24. In regards timing it is undoubtedly the case that there has already being imminence of the election. The prospect that such an act is at stake of being found guilty. In deed the gift was before the election on 4th August, 2010 and there is no dispute.


25. In connection with the issue of intention, I refer to Chetwynd J's quote from CJ Sapolu of Samoa in the case of Vui v Ah Chong[8], which he refers to a text book by Rogers on Elections, 20th Edition. At page 6 His Lordship Chetwynd J quote:


"The intention of a person charged with bribery must be gathered from his acts. Mellor J in Launceston [1874] 2 O'M H 13 said: 'I cannot go into any intention of the respondent, I must be governed by what he said and what he did, and by the inferences I ought to draw there from. And this was followed in Kingston – upon – Hull [1911] 6 O'M & H385, per Buchnill J: You cannot allow a man to say, I did not intend to do that which amounted to bribery if when you look at all things which he did there is only one conclusion to draw and that is has done that which he said did not intend to do."


26. The evidence in support of the allegation is from PW2 Ngelea himself. In considering the facts surrounding the gift it was indeed a gift to a person whose house was utterly destroyed by fire. His effort to sought assistance from the constituency development funds refused. So he was left wholly vulnerable in the dark with anxiety and frustration. The $500 gift from an employed sympathizer whose interest is no longer in politics was indeed of a charitable nature. It is nothing more than an example of a charitable gift which was not intended to influence PW2 Ngelea to vote the 1st Respondent.


27. Having said that I am not satisfied on the standard that the allegation herein is proved to my satisfaction. Hence the allegation must therefore be dismissed.


28. On the issue of agency, whilst I concur with Wakefield's definition, it is indeed too open without any limitation. Anyone with evil motive can concoct evidence by conspiracy or any other form to defeat the entire process in order to invalidate any election result. A subsequent effect of a person unfamiliar to the candidate, but who promotes his election is an uncalculated risk and I am quite cautious. A good law does not permit negative consequences to proliferate justice which must be upholding at all times.


Alleged bribery at Nubu Polling Station.


29. In this allegation the Petitioner alleges that on 4th August 2010, Stanley Koma and Deon Koma received some cash from RW1 Butu, one of the campaign managers of the first Respondent and uttered words to induce them to vote for the first Respondent and not for a candidate of their choice.


30. The only witness who is called to support this allegation is PW17 Wyless Ghetila. In his sworn statement (paragraph 4) he did not mention who actually gave the bribe money and who actually receive it and what were the actual words uttered to induce both Stanley and Deon to vote for the first Respondent.


31. In examination in chief the witness said that it was Stanley Koma and Doen Koma who told Morgan Soni and himself that the brothers got the solar panel towards end of June 2010. That piece of evidence alone is hearsay. The evidence originated from the Koma brothers, then to Morgan Soni, then to PW17 Wyless, the witness who attempts to convince the Court to belief what he heard from Mr. Morgan as true. Morgan Soni was not intended to be called. That is absolute hearsay evidence and cannot be admissible in this Court.


32. In the latter course of re-examination PW17 Wyless again said that RW1 Butu who was the campaign agent for the first Respondent bought the solar panel and lap top and gave it to Doen Koma. However, nothing of such can be read from the sworn statement and examination in chief. Even the words alleged as uttered to induce the Koma brothers was not mentioned during the course of PW17 Wyless's entire evidence. His evidence is basically hearsay and which cannot substantiate the allegation.


33. Any evidence branded as hearsay does not legally or even necessary require rebuttal. Its strength and credibility has been diluted to nothing. Therefore to call upon Deon Kama to give evidence to clear his name is absolutely out of context. However, RW1 Butu gave evidence denying the allegation. He said the Koma family had possessed an 80 watts solar panel since mid-June 2010. RW2 Garimane says he bought the DVD player for $980.00 from Apple store at Point Cruz close to the end of 2008. He allowed D. Koma to use his DVD because D. Koma married his sister. He got the money from the sale of his cocoa.


34. RW1 Butu in evidence denies receiving $500.00 from the 1st Respondent. And denies giving any money to Stanley or Deon Kama on or about 4th August, 2010. And denies uttering any words to induce them to vote for the first Respondent. And denies being an agent of the First Respondent.


The same can be said about RW2 Garimane's evidence. He denies receiving any money from the first Respondent or RW1 Butu to buy the DVD.


35. On the entire allegation, on its face, has to be dismissed on two grounds. One that the evidence intended to support the allegation is a total hearsay which is inadmissible and cannot be accepted as possessing any strength to substantiate the allegation. Even if there should be any remnant strength, it does not prove that the first Respondent gave money to RW1 Butu who in turn gave some money to D. Koma. There is also no evidence to proof that D. Koma acquired his DVD player in 2010, whilst in reality on the unchallenged evidence of RW2 Garimane who says Koma acquired his DVD player in 2011.


36. Upon assessment of evidence, there is indeed no evidence at all to substantiate the allegation and therefore must be dismissed accordingly.


Alleged bribery at Magia Village.


37. The facts related to the allegation are that on or about 15 July, 2010, when the first Respondent conducted his campaign at Magia village gave $30,000.00 to voters of Magia village to induce them to vote for him. RW26 Koba as one of first Respondents agents advised PW3 Graham that the first Respondent will pay the voters if they voted for him.


38. The petitioner called PW3 Billy Graham the only witness to support the allegation. In his sworn statement he says that RW 26 Koba confirmed to him that the first Respondent gave $30,000.00 to Magia Community during his campaign there. RW26 Koba denies telling PW3 Graham that the first Respondent gave $30,000.00 to Magia Community. The first Respondent also denies giving $30,000.00 or any money at all to Magia Community during his campaign.


39. However, upon cross examination PW3 Graham says he was present with his candidate at Magia village at the time the first Respondent was conducting his campaign but said nothing more.


40. RW5 Nealeta who was present at Magia village on the date of campaign, followed the first Respondent closely. He did not see the first Respondent gave money to anyone or to chief Manedetia or even promise anyone any material item.


41. RW6 Sale who was present at Magia village the day the first Respondent conducted his campaign did not see PW3 Graham there. He himself and the Police followed the first Respondent closely. He did not hear the first Respondent talked about or gave $30,000.00 to Magia community. He even did not hear any promise of $10,000.00 for campaign managers.


42. The Petitioner in this allegation rely on a single evidence of PW3 Graham to convince the Court that what RW26 Koba told him about $30,000.00 given to Magia community is true. The root of that information was damaged through denial by RW26 Koba, RW5 Nealeta and RW6 Sale leaving the evidence of PW3 Graham in tatters and unfounded. As such a Court of law would not accept, or even to consider because it is hearsay evidence which is baseless. If PW3 Graham was present at the time the first Respondent campaigned at Magia village, why should he not based on what he saw happened, or hear from the lips of the candidate. There could not have been any attempt to convince the Court to believe him of something someone had said. The Court will always accept admissible and direct evidence and in exceptional circumstances hearsay evidence.


43. The test is expounded in Alisae V Salaka,[9] is that evidence must be clear and unequivocal in order to enable the Court to be entirely satisfied that the allegation of corrupt practices are made out and not simply on the balance of probabilities.


44. Single evidence in support of this allegation contains no legal foundation and value nothing more than hearsay. No tunnels provide a room to escape. All escape roots has been thwarted by Respondents evidence. I am far from being satisfied, and the evidence adduced by the Petitioner must be dismissed. I therefore dismiss this allegation accordingly.


Allegation of bribery at Nubu Village.


45. This ground contain an allegation that on 10th June, 2010, RW3 Palua, the Private Secretary to first Respondent handed a cheque of $7,000.00 to RW4 Mr. Poe in the pretext of assisting Nubu Women's Resource Centre. It was alleged that RW4 Poe gave the cheque to PW12 Geseni who in turn gave it to a representative of Nubu Women's Resource Centre and conveyed to her to inform other women of Nubu to vote for the first Respondent by uttering the words to the like effect, "this is part of the money for the construction of Nubu Women Research center from the first Respondent. If you vote the first Respondent back to Parliament then he will give the balance of the total amount requested".


46. The Nubu Women's Resource Center made an application for funding on or about 27th April, 2010. The first Respondent approved the application on 10th May, 2010, for $7,000.00 to cover carpenter's cost (labor cost) for the first stage. He reached that decision knowing that there was information that all materials had already being purchased except for the labor cost. He denied promising further payment.


47. By his evidence RW3 Palua says that the application was handed by a group led by RW4 Poe. This was confirmed by RW4 Poe himself. PW14 Mrs. Joy, wife of Petitioner confirm that at each visit to the office of the CDO RW4 Poe accompanied the women to submit and check on the progress of the application.


48. PW14 Joy further states that she supports the project and application. She also advice Prudence Manele, one of the leaders of the women's group, to seek assistance from the Provincial member or the first Respondent in the event they were financially constraint.


49. Upon handing over of the cheque to RW4 Poe, RW3 Palua denies saying that the balance requested would be paid later if first Respondent was elected. After collecting the cheque RW4 Poe delivered it to PW14 Joy. RW14 Poe denies uttering words alleged that the money was a part payment for the project and the remaining will be given later if first Respondent is re-elected. However he admits saying, "that if Dr. Sikua wins they will continue to follow up the application, but if another candidate wins he will help to follow up".


50. At the time of uttering the alleged words the driver of the taxi PW12 Geseni and the Petitioner were present and could hear everything RW4 Poe was saying.


51. The cheque was then given to PW12 Geseni by PW12 Joy at Koilo village, East Guadalcanal, who then handed over the cheque to Nubu Women's leader Ms. Prudence Maneka. When PW12 Joy gave the cheque to Geseni she did not say anything. But she told Ms. Prudence later of what RW4 Poe said that the balance will be paid after Dr. Sikua wins back. When PW12 Geseni gave the cheque to Ms. Prudence he told her that the cheque was the first payment, later another half will be paid.


52. PW14 Joy is the wife of the Petitioner. She is an educated woman and had been in employment as Development Officer for Guadalcanal Province for eighteen years. She knew her husband (Petitioner) will contest the North East Guadalcanal Parliament seat. Before the date of the allegation the Petitioner had already materialized his intention to contest in the national general election by launching his intention in November 2009, at Lela beach, West Guadalcanal.


53. By having full knowledge of her husband's intentions, it is mystery and appalling to rely on words to promote bribery when uttered by RW4 Poe to Prudence Maneka; an action I describe as weird because it will divert the vote from her husband. In reality there was no direct conversation between RW4 Poe and Ms. Maneka. On a high caliber reasoning she should not have relied on those words; alternatively such circumstance is open for suggestion and question whether this petition is a pre-meditated one orchestrated to flaw the outcome of the election; the turn of events suggests a possibility. In any case it amounts to the question of credibility of witness which I doubt PW14 Joy is a credible witness. By relying on the alleged words PW14 Joy took upon herself the medium and agent of crime with evil motive to support the petition. She knew it was wrong and she knew her husband is contesting the seat. Naturally no one is daring question because the petition was lodged by her husband, an understanding of a matrimonial unity. My personnel perception of PW12 Geseni is a total fallacy and inconsistency. He runs dubious evidence. After a lunch adjournment he returns with invariable evidence, changing his evidence gave previously. It appears he was couched. His excuse is that he is confused. In fact there is no confusion at all. His sworn statement confine to the cheque. He is not actually telling the truth. Such evidence in any Court of law is expected to be refused and I do likewise here. He is not a credible witness and I do not accept his version of events.


54. From my analysis what remain standing are the evidence rebutting the allegation. There can be no doubt about it. The scale definitely tilts towards the First Respondents case. On the same level, no evidence given by any women from Nubu to affirm that they were being induced by the payment of $7000.00. Ms. Prudence was not called as a witness.


55. Mr. Pitakaka contends that the first Respondent ceased to be a member of Parliament on 24th April, 2010 following the dissolution of Parliament. The payment which was transacted on 10th June, 2010, seven weeks before general election, in fact a disguise of a normal response to assistance but promoting the election of the first Respondent. Mr. Suri submits otherwise.


56. It is with no doubt the first Respondent's status as MP has been retrieved and ceased. The office of the Prime Minister still open and function. He was still performing his duties to certain extend, in acting capacity. Likewise is the office of the Constituency Development Office (CDO) which manages funds allocated to the constituency. What matters most is that, so long as funds are still available in CDO coffers, the CDO will continue to disperse those funds. In this case since the 1st Respondent still function in acting capacity he will still endorse applications. After all the CDO office manages the peoples' money. Quite often than not, people with outstanding applications will continue to pursue despite campaign period or not. Their desire is to get the funds and get on with life.


57. It may be perceived as irregular and bribe, but there is nothing much anyone can do unless the Government completely do away with free aid funds given to each MP for constituency development. This is a national issue and has to be resolved nationally.


58. In all I find there is no evidence to substantiate this allegation. The Petitioner's witnesses are not credible and cannot be accepted. The allegation is therefore dismissed.


Allege bribery at Komuvatha village.


59. This ground allege that on or 2nd July, 2010, between 9-10pm, at Komuvatha village, the first Respondent after completed his campaign gave $5,000.00 to PW1 Shem, the chairman of first Respondent Constituency fund committee of Komuvatha Polling Station, and uttered the words to the like effect, "Yiu bro nao chairman blo mi so yiu must helpem me more". The recipient of the money PW1 Shem was called as witness to substantiate this ground.


60. To rebut the Petitioners evidence the first Respondent call five witnesses who deny the allegation but admitted the $5,000.00 cheque was given as payment for Komuvatha polling station and not for PW1 Shem personally.


61. The first Respondent agrees he had given the money to PW1 Shem outside the hall at Komuvatha village on 2nd July, 2010. This was following a meeting at Geza village on 30th June, 2010, where PW1 Shem asked if the cheque be given to him. First Respondent confirm in evidence that the $5,000.00 were to be shared between Mr. Shem for his application and another RW10 Ramau. RW10 Ramau confirms that $3,000.00 for his project was approved and was included in the $5,000.00 cheque given to PW1 Shem. He further affirms that PW1 Shem since then has not given any more to him.


62. On another reason, RW10 Ramau and RW11Gelua affirm in their evidence that PW1 Shem was present at the meeting at Komuvatha village. At the meeting his wife asked when the outstanding amount of $5,000.00 for Komuvatha polling station will be dispatched. The first Respondent in reply, he would give the amount to PW1 Shem, the chairman that evening before he left.


63. There is no dispute that the first Respondent gave $5,000.00 cheque to PW1 Shem, the chairman of Komuvatha polling station. It was not given in secret or under cover of any resource. The transaction of the cheque was a fulfillment of what was agreed upon previously in a meeting at Geza village on 30th June 2010. And further confirmed that it would be given to PW1 Shem after the meeting at Komuvatha village on 2nd July, 2010, after Ms. Shem had asked a question when the outstanding payment for Komuvatha polling station would be paid. Indeed the cheque belongs to the polling station and not belongs to PW1 Shem personally.


64. Perhaps the crucial and significant issue is that the money was given little more than a month before national general elections. And by perception it gave rise to suspicious of bribery. That may be true, because humans respond to their instincts. In this case though the first Respondent ceased to be a member of Parliament as of 24th April 2010 he was still performing his duties in acting capacity. His CDO office still open and functioning and there were funds still available for disposal. What matters most is people desiring funds for their projects, whether it is close to elections or prior to elections is not of their interest. So long as aid free money continued influx this country the attitude and mentality of Solomon Islanders will be carried away into seven heavens. It is a national issue and required national decision to resolve it.


65. As it is, as long as money still available to be managed by the CDO office no one will stop it. It has to be given to the people because it's the peoples' money and they are obliged to receive it for projects or whatever needs that may arise.


66. In conclusion how credible is witness PW1 Shem? He denies his wife asking any question during the meeting at Komuvatha village. That evidence was rebutted by four Respondent witnesses. Upon cross examination by Court he affirms that the first Respondent did not utter any words to persuade him to vote the first Respondent. That is contrary to his sworn statement. Further, it is common knowledge that the cheque of $5,000.00 given to him was the outstanding for Komuvatha polling station which he was the chairman. The cheque should meet his piggery project and the depot project approved for RW10 Ramau. RW10 Ramau's entitlement of $3,000.00 was not given to him by PW1 Shem. Evidence clearly shows that PW1 Shem is not a credible witness. His evidence accumulates fabrication and features him being not a trustworthy person. I therefore conclude that there is no evidence supporting this allegation and must therefore is dismissed.


Alleged undue influence during election campaign:


67. The petition alleges that the first Respondent and his campaign managers during various campaign meetings in the villages within North East Guadalcanal constituency directly or indirectly threaten to inflict loss of assistance from the remaining constituency funds of 1.6 million dollars after the 8th Parliament was dissolved in order to induce voters of the said constituency. Therefore the first Respondent contravenes, impedes or prevents the free use of vote by electors.


68. The petition further alleges that on Sunday 18th July, 2010, the first Respondent convened a meeting for his campaign managers and his supporters at his village at Ngalitavethi. At that meeting the first Respondent briefed his campaign managers and uttered words to the like effect, "campaign managers to convince more than 100 voters for each of the 16 polling stations by promising them money, projects, roofing iron, water tanks, etc".


69. On returning to their various homes campaign managers did exactly by visiting households and promise them assistance from the 1.6 million dollars which still remain if first Respondent gets re-elected. The first Respondent promise to pay each campaign manager $10,000.00 each.


70. The Petitioner relies on five witnesses to substantiate the above allegations whilst the first Respondent adduces evidence through seven witnesses to rebut.


Alleged promise of $1.6 million dollars:


71. The first allegation is about 1.6 million dollars which is still available from the constituency funds and which the first Respondent capitalizes on to induce voters. This action falls under the definition of contravention impedes or prevent free use of vote by electors.


72. From the sworn statements of five witnesses whom Mr. Pitakaka submits as supporting the undue influence allegation, only one mentions the figures. Two others whose names are not mention also support the allegation.


73. PW5 Koluvanga and PW13 Mantabea also mention the $1.6 million dollars. It is with respect that the Court ought to look beyond, to establish, if there is evidence to proof what other campaign managers or supporters of the first Respondent that may perhaps reflected what being told to say in other occasions during campaign.


74. PW5 Koluvanga says in evidence that he heard from the first Respondent campaign managers and supporters about the 1.6 million dollars and that those who failed to vote for the first Respondent will not receive any assistance. In a similar note, but with slight difference, PW13 Vincent Mantabea mentioned 1.6 million dollars still remain and whoever voted the first Respondent will be included.


75. The problem with PW5's evidence is hearsay. What he says in Court is what he heard from campaign managers and supporters with no particular name mentioned. Even if names are mentioned his evidence remains hearsay. He cannot successfully persuade the Court to belief his evidence which he merely gathered from others. He must, the least, hear from the first Respondent with named others at their campaign occasions.


76. In relation to the evidence of PW13 Mantabea who says he attended the first Respondent's campaign at Kolosulu village. He heard about the 1.6 million dollars but did not mention in his sworn statement, neither in examination in chief. But raised it at cross examination stage and at re-examination. After the issue has been processed through the normal judicial process the witness is able to say that 1.6 million dollars was for those who voted the first Respondent and to pay his campaign managers.


77. The first Respondent denies at his campaign locations capitalize on the 1.6 million dollars which is still available to induce or disadvantage voters in his constituency to vote for him. What he actually said was that the 1.6 million dollars was under Government budgetary for his constituency yet to be disposed of. If he was voted back he would continue the same constituency program. If he lost it would be up to the new member of Parliament to decide on the plans and programs he would embark on. However, he would assist him discuss the programs and the plans for the constituency.


78. That evidence is supported by RW13 Wara who attended the Ngalitavethi meeting. He says at that meeting the first Responded gave his last advice to his campaign managers to return to their polling stations and campaign clean and not to demean other candidates contesting because they also have right to stand. He denies campaigning after the meeting and making promises.


79. PW8 Veloa who attended the Ngalitavethi meeting said in cross examination, that he heard the first Respondent mentioned that a sum of 1.6 million dollars still remain under the constituency fund. If he gets back he will use it and distribute to the constituency. At the Kolosulu meeting in which the witness also attended heard the first Respondent said, "if another candidate won he would not know what he would do with the money. It depends on his program".


80. Apparently PW8 Veloa's evidence seems to confirm what the first Respondent and RW13 Wara are saying.


81. PW8 Veloa used the word "if" in his evidence to refer to what the first Respondent said. The word in my opinion has an interpretation giving option to people to elect a candidate of their choice. It indicated allowing voters to exercise their rights freely. If he wins he will continue to disperse the amount, but if he loses a new member will embark on new plans. I do not seem to see that words said by the first Respondent and his witnesses, supported by PW8 Veloa amount to undue influence.


82. The allegation that the first Respondent capitalize on 1.6 million dollars in order to induce or compel voters to vote him, even indirectly is not established. In fact the first Respondent was quite open and publicly announced that the money is still available for the elected Member of Parliament to access. There is no secret dealing, nor does he secretly campaign inducing voters. But open even allowing other contesting candidates aware of the availability of the constituency funds. To say that the first Respondent has the upper hand in having knowledge of the funds and perhaps have preference than others is a swallow argument.


83. The figure came into light in a form of reporting. As an outgoing MP he'll be asked how the funds were used, and on what and whether there is any fund remain. An answer to the questions is promoting transparency and accountability, a significant requirement from a person holding public office.


84. I find there is no evidence to proof that the figure 1.6 million dollars was used to broker undue influence to voters to vote for the first Respondent. The allegation must fail.


Alleged promise of money, projects, roofing iron and water tanks:


85. Mr. Pitakaka submits that there is evidence that the first Respondent has promised voters of North East Guadalcanal Constituency that he will continue with his housing scheme if he is voted back. This contention emerges from the conflicting evidence of the first Respondent who affirms he has embarked on a housing scheme; his witnesses denied that they discussed iron roofing, nails and tanks in their campaign.


86. Gathering from evidence, there is no doubt that the first Respondent has a rural housing scheme and basically that is what the funds are made available for to raise standard of living and better livelihood for the people in the rural communities. However, there is no evidence to prove that the first Respondent use the housing project and promise roofing iron, nails and water tanks. RW13 Wara who attended the meeting of Managers at Ngalitavethi village said that the meeting was to review performance and effectiveness of campaign and assess the chances. He further states that the first Respondent told them to return to their polling stations and campaign clean and not to demean other contesting candidates who also has the right to stand. RW 15 David Rex says in evidence that first Respondent informed them not to promise roofing iron, project, water tank and money. He also said that the briefing at the Red House where the first Respondent instructed them to campaign clean and to make no promises. That evidence corroborates the evidence of PW8 Veloa who was also present at the meeting at Ngalitavethi village and who confirms in court that he did not hear the first Respondent made any promise relating to water tank, iron roofing and money.


87. From the evidence it is plain clear that there is no evidence to proof that the first Respondent has capitalized on those material things to promote his influence and in so doing induce voters that he will continue with the housing scheme project if he is voted in. Instead of supporting the allegation the evidence of PW8 Veloa absolutely contradict it. As such I am not satisfied on the evidence supporting the allegation to the standard of proof. Therefore the allegation is not made out and must be dismissed accordingly.


Alleged promise of $10,000.00 to campaign managers.


88. The evidence supporting the allegation of $10,000 promised by the first Respondent emerged from two sources. Firstly from PW4 Divasia who said RW13 Wara told him at NPF plaza, at Point Cruz, in Honiara, that he was waiting for the first Respondent to give him his $10,000.00 for the work he had done as one of campaign managers. The second source came from RW17 Jerolyn Tapalia who alleged to have told PW3 Graham and PW13 Vincent Mantabea on 5th September, 2010, at Kolosulu village, while attending the mourning of the death of an old auntie. Both PWs say that first Respondent's campaign managers will receive $10,000.00 each. The merit of that evidence depends on two significant elements. That the evidence is qualified under the hearsay rule and the truthfulness of what RW17 Mrs. Tapalia said.


89. In dealing with the second issue the question to pose is from whom RW17 Mrs. Tapalia did acquire the information about the payment of $10,000.00? There is no evidence to suggest or hint any source. She must be a woman of status and integrity that such information could be disseminated to her freely. However possible option could be from her husband RW18 E. Tapalia who was one of the campaign managers, however he denies in his evidence. Whether the source from which RW17 obtain information was from her husband or any other does not change the position. What PW13 Mandetea and PW3 Graham say in Court is an attempt to convince the Court to belief what RW17 Mrs. Tapalia told them was true. Whether the source from which RW17 Mrs. Tapalia acquired information is identified or not, the position does not charge either, it is still hearsay evidence.


90. However RW17 Mrs. Tapalia denies in Court giving any such information to the two petitioners witnesses. From the evidence available I am able to perceive it lacks proof to the standard as required.


91. In furtherance the petitioner also rely on the evidence of PW4 Divasia. The problem I noted from that witness is that he has a credible background as a former United Church pastor and a former Provincial member and has good intention to contest the 2014 national general election. What appears to have placed his integrity in question is the merit and credibility of his evidence. Firstly he said he was neutral and did not involve in the elections and did not nominate any contesting candidate. When he was cross examined he admitted nominating Mr. Ismael Robert Lauabe but voted for the Petitioner on election day. I find it quite difficult to accept self-contradictory evidence which reflect the witness is not being truthful.


92. Furthermore, his meeting with RW13 Wara at NPF Plaza Point Cruz also put him in an awkward position. Is that location proper for a member of Parliament to meet his constituent? I do not think so. That summed up the entire allegation of $10,000.00 promised has not being proved in evidence to the required standard; therefore must be dismissed.


Alleged threat by RW16 Dickson Ngatu on the vehicle.


93. The evidence related to this allegation is that RW16 Ngatu, campaign manager for the first Respondent campaigned on two occasions threatening those present and listening to him to vote for the first Respondent or they will not get any form of assistance. On the second occasion the actual words used is that if they did not vote the first Respondent they will be like dead frogs.


94. The first occasion was when he was travelling home on a vehicle hired by the first Respondent. PW11 Tavalia also travelled with Mr. Maneanea on the same vehicle. He says whilst on their way RW16 Ngatu who was standing behind the vehicle cabin using megaphone told them to vote the first Respondent if not they will not receive any form of assistance. He repeated the words twice. However, PW8 Veloa who was also travelling on the vehicle sighted RW16 Ngatu in the vehicle.


95. RW16 Ngatu denies campaigning on the vehicle using a megaphone, though admitted he was one of the first Respondent's campaign Managers. He also denies that Mr. Alfred Maneanea was travelling on the same vehicle with them home. The question whether Mr. Maneanea was on the vehicle was settled by PW8 Veloa who said Mr. Maneanea was not on the vehicle with them. He states on the vehicle people were expressing their views in support of the candidates they prefer. Upon cross examination PW11 Tavalia says he heard RW 16 Ngatu expressed his view by saying some of you had received assistance from the First Respondent, if we changed some of us who received nothing will continue to receive nothing. His words were put in an abstract sense. If he had received nothing previously, then there is a need for change. If he had received nothing but wish to continue with the same candidate, that shows he had been benefitting and would like to see the first Respondent continue on.


96. In assessment, I consider who in particular was convinced and affected by the words of RW16 Ngatu, as a result of which he did not properly exercise his right mind to cast his vote because of fear of any repercussions arising from his independent choice. There is no evidence to affirm any single voter affected by RW16 Ngatu's words, hence divert his or her allegiance and voted for the first Respondent. Improper as it may, the practical aspect of placing a ballot paper in the ballot box in divergence is not the law. It is the act of threat when proof is unlawful. That leads to a search for some support. There is none in this particular allegation.


97. The evidence of PW8 Veloa seems to dilute the petitioner's case. Though he was on the vehicle he did not hear anything said by RW16 Ngatu. He was rather confined to discussion they had on the vehicle. He also mentioned he heard PW11 Tavalia and RW16 Ngatu had a row when PW11 Tavalia got off at Ghegede village. His evidence seems to support that of RW16 Ngatu. From his story I could able to glean that the rationale for raising this allegation was that PW11 Tavalia and RW16 Ngatu were not in good terms prior to the general elections. On the whole, the evidence adduce to support the allegation do not proof to the standard required. Therefore I must dismiss this allegation.


Allegation of undue influence by RW16 Dickson Ngatu at Gheghede village.


98. The allegation of undue influence leveled against RW16 Ngatu for threatening people at Gheghede village on 3rd August, 2010 by uttering the words to like effect that "if we do not vote for Dr. Sikua, we will not receive any form of assistance". The allegation was deposed by PW11 Tavalia who was present at that time together with PW10 Felixon Billy. Both witnesses recall RW16 Ngatu as saying, "if you don't vote Dr. Sikua you will be dead as frog".


99. RW16 Ngatu denies going to Gheghede village and campaign using megaphone on 3rd August, 2010. His version of event is that at about 7-8 am RW18 E. Tapalia and PW8 Veloa and he departed Magia village and after walking for six hours they arrived at Kolosualu village early afternoon. Corroborating RW16 Ngatu's alibi is RW18 E. Tapalia who says PW8 Samson Veloa and himself together with RW16 Ngatu left Magia village and walked to Kolosulu; walking time for regulars is six hours. RW18 Tapalia further states that only PW8 Veloa owned a megaphone and that RW16 Ngatu did not go anywhere prior to their departure to Kolosulu on 3th August, 2012.


100. This is a situation where the evidence of two witnesses against two witnesses and which is almost balance. The person expected to tilt the balance is PW8 Veloa. In this particular alleged incident PW8 Veloa is so quiet and mentions nothing about it in his evidence, or even mention whether he accompanied RW16 Ngatu and RW18 Tapalia to Kolosulu on the morning of the incident or not. However, I noted from PW8 Veloa's evidence that he heard RW16 Ngatu and PW11 Tavalia had a row the previous day when the vehicle they travelled on dropped PW11 Tavalia. That may perhaps prompt a motive for this allegation. Whilst I cannot rely on baseless evidence, it is assessed as almost equal. In such a circumstance it is safe to grant the weight to the party that does not carry the burden. Therefore the weight tilts towards the Respondent. I find the evidence does not proof the allegation to the standard required in law therefore must be dismissed.


Alleged treating at Kolosulu village:


101. Section 70 of National Parliament (Electoral Provisions) Act provides for the offence of treating and the penalty. Section 71 (1) (a) of the Act define person who may deemed to be guilty for the offence of treating. Upon finding of guilt the candidate's election be declared invalid by section 66 (1) of the Act. In the case of Alisae V Salaka[10] treating affects both the candidate and the voter and is sought by a display of generosity. In fact giving meat or drink is treating. When the person who gives it has an intention of treating.. and.. not otherwise ...


102. The question whether the intention was to influence the voter must depend upon the circumstances and the manner in which the refreshment was given, the time when it was done and the nature of the entertainment.


103. In an attempt to define and refine the practical aspect of treating, words such as giving promises, generosity, refreshment and entertainment are employed. Attach to those practicality is time when it is done. In the midst of that, section 72 (2) draws some guideline must also come to play, it says;


"For the 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 purposes of this section if the provision of the feast or entertainment is not for the purpose of corruptly influencing any person".


104. The section allows a feast or entertainment be provided by a contesting candidate but in accordance with established custom and is not for corruptly influencing voters.


105. In applying the law to the present case it is noteworthy to appreciate the content of the allegation. It clearly states that about 30th July 2010, at Kolosulu village the first Respondent paid four pigs valued at $1000.00 each and host a feast. In doing so handed out some money to persons who attended the feast to induce them to vote for him. Also noted the feast took place four days before election day and that the first Respondent did campaign on that day after the feast. He did pay for the pigs.


106. The first issue is whether that feast was hosted by the first Respondent or the Kolosulu Community and secondly whether it was hosted in accordance with the custom of Paripao ward where Kolosulu village was situated.


107. To substantiate this ground, the petitioner called seven witnesses. They are PW4 Patterson Divasia, PW5 Justice Koluvanga, PW8 Samson Veloa, PW9 John Rex, PW13 Vincent Mantabea, PW15 Jackson Soniluvu and PW17 Robert Wyless.


The feast:


108. All the witnesses called by the petitioner said that the feast was not done in accordance with Paripao traditional practice and was done with an intention to influence voters of Kolosulu. To Paripao people when pig is an element of feasting it is considered as most significant and highly valued; one which could able to induce people to fall a prey, see evidence of PW9 John Rex. It rarely happens and only happens in extra-ordinary occasions.


109. PW15 Chief Soniluvu, PW8 Veloa and PW18 Wyless narrated in Court the traditional process of olioli-ni-vanga. The emphasis of olioli-ni-vanga is that the host provides for all food staff and the visitor reciprocates by providing shell money and cash; and the food is accepted and concluded by feasting. PW8 Veloa adds that a visitor attending should not pay. In other words the visitor is not obliged to take a leading role in providing major elements as pig for the feast. The host should meet everything. And of course it was wrong because it was campaign time.


110. There is no dispute about the Paripao traditional feast of oli-oli-ni-vanga. However, the first Respondent's version of event is quite different, some of which is not disputed. He says in evidence that when he attended Church dedication at Geza village the chiefs and elders (including chief Ngele and Chief Konsele) invited him to go to Kolosulu village so that they would kaikai with him. After the invitation the first Respondent included Papae and Kolosulu villages in his campaign program for 30th July, 2010. The purpose was to eat together in appreciation of what he had done in the last four years with the people.


111. Being aware of the first Respondent's visit to Kolosulu village to campaign, PW8 Veloa, who was the chairman, leader of Kolosulu Community according to his evidence called a meeting. The same meeting was attended by RW18 Tapalia, RW19 Boge, RW20 Manegaua and RW21 Subaniu. What transpired at the meetings were not the same? PW8 Veloa says that at the meeting pig was considered but question mark. RW18 Tapalia says the Kolosulu community decided to get four pigs because one is not enough. The first Respondent will come with a big group. This was confirmed by RW19 Boge and that the first Respondent's name was not mentioned. In addition RW20 Rev. Manegaua denied the first Respondent's intention to host the party for them. At the meeting no name was mentioned but the community decided to contribute money to buy pigs. They tried to contribute to raise sufficient funds but unable to do so, hence intended to ask the first Respondent to buy four pigs. RW21 Subaniu affirms what RW20 Rev. Manegaua said and that they agreed to contribute to buy four pigs.


112. On another occasion, perhaps after the invitation, the late Ledley Gena approached the first Respondent at the Red house and told him that when he visited Kolosulu village, as instructed his brother will kill a pig. The first Respondent in response said customary obligation requires he would reciprocate in such circumstance. The first Respondent then told the late Gena to tell his brother Michael Oghaogha to look for a pig for him to buy.


113. Whilst awaiting concrete decision to be made whether to provide a pig or not PW8 Veloa alluded that he met the late Gena on 16th July, 2010, at Honiara and told him to prepare four pigs to be purchased by the first Respondent. The idea of buying four pigs, as it seem, originated from the first Respondent according to the evidence of PW8 Veloa, who states that the first Respondent sent message to Kolosulu community to kill four pigs which will be paid on arrival. The question whether PW8 Veloa is telling the truth cannot be verified because Ledley Gena had died and cannot be called as witness.


114. What the late Gena told PW8 Veloa could have been the result of the meeting which RW20 Rev. Manegaua said that they could not able to raise enough funds so they would approach the first Respondent to buy the four pigs.


115. On 30th July 2010, the day appointed for the first Respondent to arrive at Kolosulu village and rally his campaign he did go with his party about 34 in all including 8 local Police Officers and 8 RAMSI officers. Certain people were arranged to meet him at old Papae village. They were PW8 Veloe, RW18 Tapalia and Michael Oghaogha. At the old village site there was a discussion about the pigs with Michael Oghaogha, PW8 Veloa and RW4 Pastor Subaniu. PW8 said he heard Mr Oghaogha told the first Respondent that four pigs at Kolosulu village were on sale. He also heard the first Respondent asked if the cost is $1000.00 he would buy. It would appear PW8 Veloa seem to distance himself away from the discussion. However what actually transpired that three men told the first Respondent that four pigs were ready and that should be sufficient because a lot of people would attend. The first Respondent agreed provided the prices were reasonable and affordable. Mr. Oghaogha confirmed the prices were $1000.00 for each pig. It was then the first Respondent agreed to purchase. There was no prior discussion about the pigs until at old Papae village at 11.00 o'clock the morning of the arrival of the first Respondent.


116. The reason for the first Respondent going to Kolosulu and Papae villages has been clear, that he was invited to share in a feast. The idea of reciprocating with one pig was a respond to L. Gena's arrangement that his brother will kill a pig for him. That is recognized as a worthy traditional practice and accepted universally by the people of the constituency.


117. In the final analysis it is noted that at the time of the feast the first Respondent was an acting Prime Minister after the National Parliament was naturally ceased in April, 2010. His acting capacity will continue to valid until a new Parliament and a new Prime Minister was elected. The feast at Kolosulu was held on 30th July, 2010, and no one denies it was campaign time.


118. From evidence it appears attending the feast by the first Respondent was made possible by way of invitation. The invitation was conveyed by people recognized as having integrity and respect in Kolosulu community. There is no dispute that the first Respondent purchased four pigs at $1,000.00 for each. But that was not done by himself as usurping the responsibility of the host. In reality, according to credible evidence he was the last resource to resort to after the Kolosulu community could not able to contribute enough funds even to purchase one pig. The idea of having pigs as a significant element in the feast was a resolution concluded by the Kolosulu community. Whilst it was an open option, the drawing of time to advent made it possible for the community to sought assistance from the first Respondent to purchase four pigs for the feast. That was accepted following the decision at the eleventh hour.


119. Section 72 (2) of the Act make allowance for the contesting candidate to host a feast at his campaign, but limited to the tradition prevail and adopted by the people. In this case the first Respondent had no intention to host a feast at Kolosulu during his campaign. The feast that was provided was the sole intention by the Kolosulu community at its meeting to host upon arrival of the first Respondent on his plan campaign.


120. An observer looking in will perceive that the manner in which the feast was hosted was totally outside of oli-oli-ni- vanga; however, who was to be blamed. The first Respondent was not from Paripao ward and it is expected Kolosulu community could have known their tradition better. They know and familiar with their traditions and practices. If this particular occasion is to reflect a true traditional colour of the Paripao people then that should be shined out, maintained without any deviation or omission. To vest the blame on the first Respondent is an absolute misunderstanding. He was an innocent person drawn in to assist and meet the urgent need of the Kolosulu community agreed upon at their meetings.


121. PW8 Veloa describe the approach by the Kolosulu Community leaders by asking the First Respondent to buy four pigs for the feast as wrong and contrary to the culture of Paripao ward. He also confirmed the discussion between them and the first Respondent at old Papae village as true and correct.


122. The Campaign program that followed the feasting has to be evaluated from the intent of hosting the feast. Whether the conduct of such campaign intentionally to induce the voters to divert their choice is a non-issue. It is the generosity of providing that has to be analyzed whether it was prompted by any evil motive. There can be no doubt, the evidence has revealed that the feast was not initiated nor hosted by the first Respondent. It was an idea from the Kolosulu community and they hosted it. The first Respondent was drawn into the picture to assist upon request. I accept what had been done was a general practice of providing reception for a "Big Man".


123. Mr. Suri argues that the word "purpose" enshrine in Section 71 (1) to corruptly influencing require prove of mens rea. He refers to the case of Sweet V Parsley[11] where Lord Diplock discussed in Sherras V De Rutzen and said,


"Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime no defined is not committed"...


124. In this case it was not the intention of the first Respondent to provide host for the feast. The purpose for being at Kolosulu was that he was invited to attend by prominent and leaders of Kolosulu community to have "kaikai" in other words to feast. At the same time he would embark on his campaign program. In evidence the Kolosulu community was the initiator of the feast a conduct fall short of corruptly influencing voters. There is no evidence to proof.


125. Turning to the content of what were said at the Campaign at Kolosulu village, PW13 Mantabea said that the first Respondent said he will only give roofing iron to those who voted him. PW8 Veloa stated that 1.6 million was mention and still remains unspent. If a new member is elected we do not know what he is going to do with it. In fact reference was made to 1.6 million dollars if a new member is elected he would know what to do with it. There is no reference to inducement in PW8 Veloa's evidence. That could be taken as contradicting evidence of PW13 Mantebea.


126. Despite what were said PW9 John Rex summed it up that in the culture of Tasimboko and Paripao areas, if someone does you favor, you feel oblige to reciprocate that favor. The same is equally shared by PW8 Veloa. The problem here is that the first Respondent was not the host of the feast. He did no favour to anyone. He was invited and provided upon request by the Kolosulu community. PW8 Veloa has already condemned the Kolosulu community was wrong. That gives a leeway protecting the innocence of the first Respondent. In all, I am not satisfied on the evidence supporting this allegation therefore must be dismissed.


Breaches of Statutory Rules:


127. The allegation makes reference to number of incidents which relate to breach of statutory rules.


Lack of Police Officer at Kolosulu Polling Station:


128. It is alleged that on the polling day 4th August, 2010 at Kolosulu polling station there were no police officers to provide security for neutral and free environment for people to cast their votes. It is not disputed that there were no police officers present at Kolosulu polling station. Despite no police officer present PW5 Koluvanga said voting was generally good throughout until evening, there was no fighting. A similar note was said by PW8 Veloa that there was no problem during voting. Section 35 (1) of the Act states each candidate may appoint two persons as polling assistant for the purpose of detecting personation of which is define in section 40 (1), and such person be prevented from voting pursuant to subsection (2) by authority and power granted to the presiding officer by Section 39 (2) of the Act. On election day despite no police officers polling assistance were present.


129. Nevertheless, despite the absence of any police officer voting went about well without disturbance. In fact there is no law that provides that police must present at all polling stations. The function of Police is controlled under the command of the Commissioner of Police. In circumstances where due to lack of resources only various spots are identified as hot spots are allocated security personnel. Kolosulu polling station was identified as not a hot spot. As a normal course of event I do not seem to perceive this ground has raised any allegation, therefore must be dismissed.


Coercion by Presiding officer:


130. It was alleged that due to no Police officer at Kolosulu polling station, coupled with the fact that all the election officials were the supporters of first Respondent, Jimmy Koba (Presiding Officer) coerced, forced people to vote for the first Respondent by uttering words to the like effect that "you should tick Dr. Sikua's box symbol shield". More specifically PW13 Mantabea who said was present on the polling day for five minutes, which time he also noted PW11 Tavalia voted. On that occasion he spotted four girls (RW22 Monica, RW23 Jacobeth, RW25 Emily and RW24 Jerinda) joined the queue to collect their ballot papers. Whilst approaching the Presiding officer RW26 Koba whispered to them loudly to vote the first Respondent.


131. Later, on Sunday 8th August, 2010, RW22 Grettal, the daughter of RW26 Koba went to PW3 Graham's house and told him, his wife PW7 Jane and daughter PW6 Delwyn that RW26 Koba forced the four girls to vote for the first Respondent. This evidence was supported by PW6 Delwyn and PW7 Jane. RW22 Grettal denies telling anyone after election that she and other three girls were coerced by PW26 Koba.


132. RW 26 Koba denies coercing the girls. The four girls also deny being coerced. Their version of evidence is that RW 22 Grettal and RW25 Emily left Veratina village at about 8 am. By 9 am they arrived at Kolosulu polling station and cast their votes. RW 23 and RW 24 said, they left Veratina village at 1 pm and cast their votes about 2 pm at Kolosulu polling station. Their separate journey to Kolosulu polling station is contrary to PW13 Mantabea's evidence who said he saw the girls together and were coerced at the same time. In cross examination PW11 Tavalia said he was unsure whether RW 24 Emily and RW25 Jerinda went earlier or after him. His uncertainty was inconsistent with the evidence of PW13 Mantabea who said he saw the four girls together and being coerced, and also saw PW11 Tavalia casting his vote. Further inconsistency is the evidence of PW11 Tavalia when he saw the two girls RW25 Emily and RW24 Jerinda after, he casted his vote. That could possibly consistent with the evidence of the four girls, that only two went at one time to Kolosulu polling station and cast their votes, two in the morning and two in the afternoon.


133. PW11 Tavalia also states that RW24 Jerinda and RW25 Emily after voting told him near the Synod House that RW22 Koba forced them to vote the first Respondent. RW24 Jerinda denies being forced by RW22 Koba but says he encouraged them to vote anyone of their choice. RW25 Emily also says in evidence that R22 Koba did no advise them as to whom to vote.


134. Transpires from the evidence there are inconsistency in the evidence of PW11 Tavalia and PW13 Mantabea. Besides that the four girls attested in evidence that PW11 Tavalia had influenced three of the girls to vote his brother Bradley Tavalia (one of the candidates) by cooking rice for them, a serious issue not contested which must be weighed against his credibility. Of course this has questioned his credibility. In all, this allegation is not proved to the standard as required to satisfy me, therefore has to be dismissed accordingly.


Low turnout of voters.


135. The allegation of low turnout of voters on the election day was marred by rainfall the previous day and on the day of election. PW5 Koluvanga who was one of the polling agents arrived at the polling station to take up his position at 9:30 am. He says the turn out in the morning was not good until between 10:00 am and 12:00 noon. It was until between 1:00 pm and 3:00 pm that most of the voters turn up. Hence it would not be possible for total official recorded turn-out of 292 due to bad weather. He also mentions there was double voting.


136. Again PW8 Veloa, a polling agent, says in evidence that about 4:30 pm he saw one ballot book was completed and the other still unfinished. From what he saw he guessed that roughly 170 people could have casted their votes. The witness relayed his guess to PW4 Divasia. The guess thereafter developed into an allegation.


137. RW26 Koba gives evidence that two ballot books were fully completed and the third one had 7 ballot papers left. The completed books were placed in an envelope. Before 3 pm or 4 pm no polling agent asked him for the number of votes casted. And that the list of voters tally book with ballot books appeared corresponded to one another.


138. The allegation is an absolute mere guess without any proper verification. What could have possibly changed the normal course of things must be expressly stated. Double voting adduced by PW5 Koluvanga was without any firm evidence to support. Making conclusion without evidence to support is a bad case.


139. Indeed RW 26 Koba in evidence instructed polling agents that should any irregularity occurs they should raise their hands. No one raise his hand. And that was affirmed by PW8 Veloa who said in the last 30 minutes nothing was wrong the people were still voting at that time. That is inconsistence with what was alleged by PW5 Koluvanga, that there was double voting. That could not be possible, even without the absent of any police officer. PW8 Veloa's evidence concluded that at the close of election day there was nothing wrong.


140. With the evidence before this Court the allegation that poor turnout due to bad weather and rain could not have warrant 292 voters to turn up and vote, has no basis and no evidence to support, it's a mere guess. In a volatile situation without any corps the allegation of double voting could have made up the number. That allegation has no substantive support as well. I must therefore dismiss the allegations completely.


141. In conclusion to prove the offence of bribery there must be evidence of corrupt arrangement. There is no evidence to proof corrupt arrangement. The Petitioner has failed to proof to satisfy the burden of proof. To prove the offence of treating there must be evidence to show that the first Respondent sought out his votes by a display of generosity with the intention of influencing voters. There is no evidence to proof. Again the Petitioner has failed to show evidence of treating. In relation to allegation of statutory breaches of electoral rules, they are unfounded allegations and not supported by law. In view of the entire petition, the evidence adduced to support it falls below the required standard of proof; respectively the petition must fail in its entirety.


ORDERS.


1. The petition is dismissed in its entirety.
2. Cost is to be borne by the Petitioner payable to the Respondents to be taxed if not agreed.


The Court.

[1] [2011] SBHC6; HCSI – CC 335 of 2010 (11th March 2011).
[2] [2012] HCSI – CC 340 of 2010 (18 April 2012).
[3] [1985-1986]SILR 31.
[4] [Unreported, HCSI Civil Case No. 266 0f 1993, 23 Nov.1993.
[5].Ibid para 6..
[5] [Unreported, HCSI, Civil Case No. 340 of 2010, 18th April 2012].

[6] [Ibid]
[7] [1874] 2 O’ M H 100.
[8] [2006] WSSC S2 [26 Sept – 2006].
[9] [1985 – 1986] SILR 31.
[10] [1985] – 86] SILR 31 [April 4, 1985] SBHC6.
[11] [1969] UKHL 1; [1970] AC 132.

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