Togama v Longamei [2012] SBHC 166; HCSI-CC 329 of 2010 (2 February 2012)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No: 329 of 2010

BETWEEN:

CULWICK TOGAMA
Petitioner

AND:

VARIAN LONGAMEI
First Respondent

AND:

ATTORNEY GENERAL
Second Respondent

Date of Hearing: 3,4,6,11,12,13,18 May 2011; 2,3,6,8,29 June 2011;
8,9,10 August 2011; and 8 September 2011

Date of Judgment: 2 February 2012

W. K. Togamae for the Petitioner
C. Hapa and L. Kelly for the First Respondent
E. Kii for the Second Respondent

JUDGMENT

Mwanesalua J:

1. This is an election petition filed by the Petitioner on 9 September 2010, and, amended on 15 September 2010. The Petitioner was the runner up candidate in the Maringe Kokota Constituency ("the constituency") during the General Election on 4 August 2010.

2. The First Respondent was the returned candidate for the constituency. He is the current member for the constituency in the National Parliament.

3. Eleven candidates contested the election in the constituency. The results of the election as declared by the Returning Officer on 5 August 2010 and published in Extraordinary Gazette No. 90, on 16 August 2010, are as follows: The First Respondent 1, 385 votes, the Petitioner 996 votes., Leslie Kikolo 913 votes, Tione Bugotu 317 votes, Moses Sasago 246 votes, Samson Aumae 213 votes, John Colridge Lolly 72 votes, Rachel Theotagignia 41 votes, John Charlies Sotamana 26 votes and Clement Rojumana 22 votes. The First Respondent won the election from the Petitioner with a majority of 389 votes.

4. The Petitioner now seeks, among other things from the court, through this petition, to declare the election of the First Respondent as the Member of Parliament for the constituency void.

5. The election was conducted under the National Parliament Electoral Provisions Act [Cap. 87] ("the Act"). The Petitioner claims that the First Respondent's election was void, because the First Respondent himself and by his agents, guilty of corrupt practices of aiding, abetting, counselling or procuring the commission of offences of bribery and undue influence, contrary to sections 66 and 70 as read with sections 71 and 73 of the Act.

6. The burden of proving these allegations lies upon the Petitioner. The standard of proof is set out in the case of Maetia v Dausabea [1993] SBHC 29 (unreported, HCSI, Civil Case No. 266 of 1993, 23/11/1993) at page 4 where Muria CJ stated:

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

7. The particulars of the alleged corrupt practices made by the Petitioner against the First Respondent are set out in paragraphs 6 and 7 of the petition as amended. The court will now consider them in the sequence which they are set out in the petition.

Purported Inducement at Kmaga village (Paragraph 6 (a) of the Amended Petition.

8. Paragraph 6 (a) (i). The First Respondent at Panatina in Honiara in mid June 2010, during a meeting, instructed Drumond Theo, Fanasi Jagalulu, Josiah Pulotegna, Mark Asa, Cecil Tabiru, Jason Jaftan, Wilson Hane and Gabriel Daska to return to their respective villages, to write down the names of voters and influence them to vote for the First Respondent, and if they so vote, they will be given money and property.

8.1 This allegation was made by Mr. Wilson Hane Sedere. The sworn statement and the testimony of this witness did not state that this allegation occurred in mid June 2010. His shown statement merely showed that he went to see the First Respondent at Buala on Friday 4 June 2010.

8.2 It is apparent from the sworn statement of this witness that this allegation occurred in early May 2010. But this was not pleaded in the petition. In that sworn statement Mr. Sedere said that the First Respondent's driver picked him up at the IDC Office at Point Cruz and took him up to the First Respondent's residence at Panatina, where he attended a function hosted by the First Respondent and slept there that night. On the next day, at 4pm, the meeting and the instructions alleged in paragraph 6 (a) (i) above occurred. He said he was present during the meeting.

8.3 The First Respondent denied inviting Mr. Sedere and hosting any function at his residence at Panatina in Honiara in May 2010. The First Respondent and Messrs Drumond Theo, Fanasi Jagalulu, Joshua Votu, Gabriel Daska, Cecil Tabiru, Josiah Pulotegna and Jason Jaftan all denied ever convening any meeting and being instructed to write down the names of voters, and, to influence them to vote for the First Respondent, during the presence of Mr. Sedere in June 2010. There is evidence though of a meeting being held during the first week of July 2010, which was attended by the First Respondent and Messrs Rawcliff Ziga, Drumond Theo, Fred Gaviro, Fanasi Jagalulu and Rodrick Leguvaka, Mr. Sedere was not present and party to that meeting.

8.4 It is clear that no evidence of any meeting as described in this allegation occurred in June 2010. This allegation has not been proved.

9. Paragraph 6 (a) (ii) - That Messrs Drumond Theo and Fanasi Jagalulu promised voters from Kmaga village to vote for the First Respondent and they will be given solar and cash by the First Respondent. That the voters to write their names down with Chief Rawcliff Deniau, cast their votes, tick their names on the list and collect their solars.

9.1 This allegation was made by Ms. Felistas Gerea. Ms Gerea says in her sworn statement that she was at Kmaga village on 2 August 2010 to vote. On that day she was sitting outside her house on the beach, when she saw Mr. Fanasi Jagalulu walking passed. A neighbour then asked him about the properties. Mr. Jagalulu responded by saying "Just 'Chu' (caste) your vote in the box and pick up yours".

9.2 Mr. Jagalulu denied this allegation in his sworn statement. But he confirmed in his testimony that Ms Gerea and he were Honiara residents who arrived at Kmaga village on the early morning of 2 August 2010. He said his residence was located at the end of the village and not in the middle of the village. He explained that after he arrived, he accompanied his nephews on a fishing trip at about 8 am in the morning and returned to the village about 6.00pm in the evening. He denied meeting Ms Gerea at all.

9.3 The neighbour whom Ms Gerea referred to in this allegation who asked Mr. Jagalulu about the properties was Grace. She was not called as a witness for the Petitioner in relation to this allegation.

9.4 In relation to the allegation against Mr. Drumond Theo, Ms Gerea alleged in her sworn statement that, at 2.00pm on 3 August 2010, Mr Theo returned from Buala and told her and others, that they could collect their Solars after voting for the First Respondent. That Mr. Theo allegedly told them that he would go to Buala and collect them the next day.

9.5 In his testimony, Mr. Theo denied having knowledge of Solar Panels being earmarked for Kmaga village at the First Respondent's residence at Buala. Further, he said that he did not meet Ms Gerea at 2.00pm on 3 August 2010, because on that day, he went with the First Respondent campaigning at Buala. He did not return to Kmaga until 5.00pm, because the OBM boat which should take him back to Kmaga was engaged in the birthday preparation for Chief D. Lulei. In view of that, Mr. Theo could not have met Ms Gerea at Kmaga at 2.00pm as claimed by Ms Gerea. The Petitioner did not call the three persons with Ms Gerea when Mr. Theo allegedly met and spoke to them on the beach at Kmaga.

9.6 Chief Deniau said in his sworn statement that never in his life did he write down the names of voters who voted for the First Respondent after they have voted for him, and ticked their names for purpose of collecting their Solars. Chief Deniau explained that the 48 Solar Panels received by the Kmaga community were requested and purchased for 48 households of families who live permanently in the village and could not afford to purchase them. They were requested and purchased by the First Respondent well before the election was held on 4 August 2010.

9.7 This allegation has not been proved

10. Paragraph 6 (a) (iii). The First Respondent on 4 August 2010, between 10am and 11am gave 48 Solar Panels to Theo, Deniau and Jagalulu who in turn gave them to families of voters who voted for the First Respondent.

10.1 In her sworn statement, Ms Gerea alleged that at about 4.00pm on 4 August 2010, she saw Mr. Theo and family, and Messrs Tinoni and Denisi arriving back at Kmaga village from Buala with Solar Kits. Messrs Theo and Jagalulu denied this allegation. They were not at Buala on 4 August 2010 between 10.00am and 11.00am. The First Respondent denied giving out any Solar Panels to Messrs Theo, Jagalulu and Deniau on 4 August 2010 between 10.00am and 11.00am at all. In his sworn statement, the Constituency Development Officer, Mr. Avix Manehava confirmed that he distributed the Solar Panels to the communities who requested them well before the election from 6pm on 4 August to 5 August 2010.

10.2 This allegation has not been proved.

11. Paragraph 6 (a) (iv) Drumond Theo from late July to 4 August 2010, promised voters $1,000.00 or $1,500.00 if they vote for the First Respondent. Voters must write their names down

11.1 This allegation was made by Mr. Edward Hillary. He said that on 30 May 2010, Mr. Theo stood on the beach, and called out to him saying "everything is straight as planned my nephew. $1,000.00 or $1,500.00 per head will be given to all voters who vote for the First Respondent".

11.2 Mr. Theo denied this allegation, saying that he knew Mr. Hillary as a teacher, but Mr. Hillary was neither his nephew or relative. He dismissed the allegation as baseless and false.

11.3 The court does not believe Mr. Hillary's evidence. It would be impossible for the First Respondent to honour the payment of bribes at that level to each of his voters.

11.4 This allegation has not been proved.

12. Paragraph 6 (a) (v) Felix Siru, Jacob Uza and Ataban Tugumana supporters of the First Respondent, at Koeregu village, "promised voters $1,000.00 if they voted the First Respondent".

12.1 Mr. Siru denied this allegation against him. His evidence is that he is from Koeregu village, where the Petitioner comes from. He is also related to the Petitioner. The majority of voters in the village were supporters of the Petitioner and he could not campaign against him in front of people in the village. He did not promise voters in the village to vote for the First Respondent in order to receive $1,000.00.

12.2 Mr. Tugumana denied this allegation. He is from Koeregu village. He said that he did not campaign for the First Respondent, or promised voters to vote for First Respondent, in exchange for their votes. He also denied writing down names of people to collect properties from the First Respondent.

12.3 There is no evidence to prove this allegation.

13. Paragraph 6 (a) (vi) Ataban Tugumana, Jacob Uza and Selwyn Teimana on 4 August 2010, at Koregu village, between 9am and 10am, being supporters of the First Respondent, went around the village to write down the names of the 22 people who voted for the First Respondent to receive payments and property.

13.1 This allegation was raised by Messrs Lawson Lonamana, Patrick Wayat, and Wilson Hane all of Koregu village. They believed that the confirmation of voters who voted for the First Respondent by Messrs Tugumana, Teimana and Uza constituted an act of undue influence and collection of payment and or property by such voters.

13.2 But this allegation was denied by Messrs Tugumana, Teimana and Wayat.

13.3 The court does not believe evidence that Messrs Tugumana, Teimana Uza would openly go out to record the names of voters who voted for the First Respondent and to get reward in exchange for their votes, bearing in mind that Petitioner has more supporters at Koeregu village, and that he comes from that place as well.

13.4 The court does not believe the evidence given in support of the allegation. This allegation has not been proved.

14. Paragraph 6 (a) (vii) - The First Respondent gave 30 horsepower Mercury Engine to Chief Rawcliff Deniau on or before August 2010, who wrote down the list of voters for the First Respondent, verifying the voters for the delivery of Solars on 4 August 2010.

14.1 The source of this allegation is not apparent from the Petitioner's witnesses. However, in his sworn statement, Chief Deniau said that the Engine and Solars were requested at the beginning of 2010. Due to lack of funds, they were not purchased and delivered earlier. The First Defendant denied the Engine was given to the Kmaga Community in July 2010. Chief Deniau said that he had no knowledge of making a list of voters, for the purpose of inducing voters. Chief Deniau said that the 48 Solar Panels delivered to Kmaga village covered the whole village, not only for the First Respondent's supporters.

14.2 The First Respondent's evidence was, that he purchased the Engine with RCDF funds as the Kmaga community urgently needed it to prepare for Ini Kopuria's day, scheduled for 6 June 2010.

14.3 The Petitioner adduced no evidence in support of this allegation. It is therefore not proved.

15. Paragraph 6 (a) (viii) - That on late July 2010, the First Respondent was alleged to have told voters at Buma village, to cast their votes for him and afterwards pick up the 15HP OBM.

15.1 It is clear from the sworn statement of Mr. Stanley Huidi, that the First Respondent did not tell the Buma Community during his campaign at the village on 24 July 2010, to cast their vote for him and pick up the 15HP OBM afterwards. According to Mr. Huidi, the First Respondent informed the community that their Engine was at Buala and they could collect it after the vote. In his sworn statement, Mr. Hubert Haehathe said that the First Respondent told the Buma Community that their OBM was with him at Buala. But on cross examination, it is apparent that Haehathe was absent when the First Respondent campaigned at Buma village. He only heard from his wife that the Engine was at Buala. Such evidence is obviously hearsay and is inadmissible.

15.2 The First Respondent denied this allegation. In his sworn statement, he explained that he never told voters to pick up their engine after casting their vote for him. The truth is that, in response to their question about their community's requested Engine, he told members of the Buma Community (inclusive of non-voters) to pick the engine after election time had lapsed and cast their votes for any candidate they wish to elect.

15.3 This allegation has not been established by evidence from Messrs Huidi and Haehathe

Purported undue influence is Koviloko Ward (Paragraph 6 (b) of the Petition as amended)

16. Paragraph 6 (b) (i) of the Petition - on or about 2 August 2010, the First Respondent allegedly told the voters at Kologaru village to cast their votes for him and thereafter pick their Solars.

16.1 This allegation was based on the evidence of Mr. Ramo Didikome (Ramo) of Koeregu village. His evidence is that on 2 August 2010, the First Respondent campaigned at that village. During his campaign, "the First Respondent told his voters of Koeregu village to cast our votes and pick our Solars on or after Election Day of 4 August 2010". Chief Ogodi, and Messrs Autedi, Hudson and Ramo himself went to Buala by boat on 4 August 2010 after casting their votes. Upon their arrival, they went to the First Respondent's house. At about 11am on 4 August 2010, the First Respondent gave them 50 Solar Kits which he promised to give to Koeregu village during his campaign. They then left Buala at 2.30pm and arrived back at Koeregu village at about 3.30pm.

16.2 On the contrary, Mr. Autedi's evidence^[1] is that Mr. Ramo is not a registered voter. That it was Chief David Gogromana and Messrs Hudson and Autedi himself who went to Buala to collect the Solar Kits after they have votes. They collected them after 5pm; they used a 15HP OBM and it was Mr. Autedi himself was the driver.

16.3 Mr. Autedi's evidence shows that Mr. Ramo and Chief Ogodi did not go to Buala as claimed by Mr. Ramo. Further, it also shows that the Solar Kits were given out to them after voting was closed. This was confirmed^[2] by First Respondent's Constituency Development Officer (CDO) Mr. Manehava who delivered items after the election period was over.

16.4 There is no evidence to prove that the First Respondent told voters at Koregu village to cast their votes for him, before picking their Solar Panels, batteries and light bulbs. The court will accept the evidence of Mr. Autedi to that of Mr. Ramo. There is no evidence to prove this allegation.

17. Paragraph 6 (b)(ii) - on the night of 3 August 2010, Wilson Tuhula was alleged to have promised Edward Tanhimana for them to go around distributing hard cash to voters for them to vote for the First Respondent at Koregu village.

17.1 Mr. Wilson Tuhula explained in his sworn testimony that he spent the night of 3 August 2010 at Buala. He was not at Kologaru village that night. It would therefore be impossible for him to meet Edward Tanhimana on the night of 3 August 2010. He only met him on 4 August 2010.

17.2 There was no evidence produced to prove that Mr. Tuhula promised Mr. Tanhimana, on the night of 3 August 2010, for them to go around distributing hard cash to voters to vote for the First Respondent. This, allegation has not been proved.

18. Paragraph 6 (b) (iii) - The First Respondent was alleged to have given 50 Solar Kits to David Ogodi, Fores Autedi and Ramo Didikome on 4 August 2010.

18.1 This allegation is partly considered in Paragraph 6 (b)(i) above. The First Respondent denied the allegation that he gave 50 Solar Kits to Messrs Ogodi, Autedi and Ramo on 4 August 2010. He said the delivery or distribution of the Solar Kits were managed and controlled by the CDO of Maringe-Kokota Constituency, Mr. Manehava.^[3] This evidence was collaborated by Mr. Manehava.

18.2 It therefore clears from the evidence of the First Respondent and Mr. Manehave that Solar Kits were given out or distributed by the CDO, Mr. Manehave to the Kologaru Community, and not directly by the First Respondent. As decided in paragraph 6 (b)(i) above, Messrs Ramo and Ogodi did not go to Buala with Mr. Autedi. This allegation has not been entirely proved to the satisfaction of the court.

19. Paragraph 6 (b)(iv) - The First Respondent was alleged to have given 50 Solar Kits to David Ogodi, Fores Autedi, Ramo Didikome on or before 11:00am on 4 August 2010.

19.1 The First Respondent deny giving 50 Solar Kits to Messrs Ogodi, Autedi and Ramo on or before 11.00am on 4 August 2010 whilst the polling stations were still open. He said that the delivery of Solar Panels was managed and controlled by Mr. Manehava, the CDO of the constituency.^[4] Mr. Manehava corroborated the First Respondent that he as the CDO was in-change of the delivery of items and that he delivered the items after the election period was over.^[5]

19.2 As witnesses for the First Respondent, Messrs Autedi and Gogromana both confirmed in their oral evidence that they collected the Solar Kits after 5.00pm because the First Respondent did not allow them to collect the Solar Kits before 5.00pm.

19.3 This allegation has not been proved.

20. Paragraph 6 (b)(v) of the Petition - On 3 August 2010, the First Respondent was alleged to have told voters at Salio village to cast their votes and thereafter pick up their 30 Horse Power OBM Engine. Immediately after casting their votes, and that at 11.00am on 4 August 2010, the First Respondent gave the 30 HP OBM to Chief Robert Howard and Retani.

20.1 The First Respondent denied this allegation. He said, he did not tell all the voters of Salio village to cast their votes and immediately pick their 30HP OBM. Further, he also denied that Chief Howard and Retani went to see him at Buala immediately after they had cast their votes at 11.00am. He also denied giving them 30HP OBM for Salio villager's voters on 4 August 2010. He reiterates that the distribution/delivery of OBM Engines were managed and controlled by the constituency Development Officer, Mr. Manehava.^[6]

20.2 The Petitioner has not produced evidence to prove of this allegation. It therefore has not been established

Undue influence at Buala Ward

21. Paragraph 6 (c) (i) - The First Respondent in late July 2010, during campaign at Maglau, Tithiro and Tholana villages, stated Solars are with him at his residence at Buala, voters to drop votes for him and collect their Solars.

21.1 Messrs Lawrence Manehavi and Charles Pado gave evidence in support of this allegation. In their sworn statements, they said that the First Respondent told the Tholana community during his campaign at the village that their Solars are at his residence at Buala. The First Respondent told the community that as soon as they cast their ballot in the box, they can go to his residence at Buala to collect their Solars. 38 Solar Kits were bought for the community for distribution.

21.2 During cross examination, Mr. Pado denied that the First Respondent ask voters to vote for him. He said, the First Respondent merely told voters to drop their ballot papers in the ballot boxes and collect their Panels after the election.

21.3 The First Respondent denied the allegation in his statement. He explained that he only told members of the community in response to their questions about their community's request for Solar Kits, that their Solars were at his residence at Buala and they can be delivered to them or they can collect them after the election is over.

21.4 In view of Pado's evidence in re-examination, the court is not satisfied that the First Respondent had asked the voters of Tithiro to vote for him. The allegation has not been proved.

22. Paragraph (c) (ii) -- On or about late July 2010, the First Respondent promised voters that if they vote for him, they will be given 30HP OBM. The First Respondent further told voters at Maglau that they will only receive the 30 HP OBM if their votes are many. The First Respondent gave a 30HP OMB to Maglau at 2.30pm on 4 August 2010. The First Respondent further gave a 10 Watts Solar to Christopher Fole.

22.1 The two witnesses who gave evidence in support of this allegation are Messrs Eric Gnogro and Christopher Havi of Maglau. In Paragraph 3 of his sworn statement, Mr. Gnogro said that during the campaign period, the First Respondent declared to the Maglau community something to the effect, "Engine lo haus, bae ufala come tekem afta election, bat bae depend if mi win". On the other hand, Mr. Christopher Havi recalled the First Respondent said something to the effect, "Engine blo ufala lo Maglau Community lo house blo me lo Buala village, and suppose ufala vote finish come tekem lo house blo mi".

22.2 The First Respondent denied telling Maglau voters that they will only receive the OBM if their votes are many. What he told the members of the Maglau community in response to their question about the community's requested engine, was that it was at his residence at Buala, and, that it can be delivered to them or they can go and collect it after the election period.^[7]

22.3 In his sworn statement,^[8] Mr. Hiromana said that the OBM was requested by the Maglau Community in 2009. He did not agree with the allegation that the First Respondent would only deliver it if the First Respondent received many votes from the community.

22.4 I find the evidence of the First Respondent and Mr. Hiromana's evidence credible, and reject the evidence of Messrs Gnocro and Havi. I am also satisfied that the OBM was collected by Mr. Hiromana and others after the voting time was over.

23. Paragraph 6 (c ) (iii) -- Clifford Notere on 3 and 4 August 2010, gave $100.00 each to 30 youths of Maglau village to vote the First Respondent, and further payment was made on 8 August 2010. The total amount disbursed was $6,000.00.

23.1 This allegation was made by Mr. John Mark of Maglau village against Mr. Clifford Notere, in his evidence.^[9] However, it became apparent on cross examination that Mr. John Mark was not personally present during the alleged distribution of the money, but merely heard about from his uncle.

23.2 It is clear that Mr. John Mark's evidence of the alleged distribution of the money is hearsay and is inadmissible. The allegation has not proved.

24. Paragraph 6 (c) (iv) - First Respondent on July 2010, at Tholana village, promised voters to pick up their Solars after casting their votes for the First Respondent. That on 4 August 2010, about 2.00pm, the First Respondent gave Gilbert Ragimana, Timothy Jejemu and Enest Kamelehe 38 Solar Kits.

24.1 The witnesses who gave evidence in support of this allegation are Messrs Lawrence Manehavi and Charles Pado. Mr. Pado says in his sworn statement, "that he was at a Youth Centre about 2.45pm on 4 August 2010; he saw Messrs Timothy Jejemu, Gilbert Ragimana and Kamelehe walking passed with Solar Panels. Mr. Manehavi after casting his vote, he and 6 other persons went to Buala and arrived there around 11 to 12.00pm. At about 1.00pm he and others went to the First Respondent's residence and collected 30 Solar Kits and returned to Tholana village.

24.2 Messrs Pado and Manehavi did not mention that they voted for the First Respondent. But mentioned that Solars were collected prior to the closure of the election.

24.3 The First Respondent denied giving Solar Kits to Messrs Jejemu, Ragimana and Kamelehe on 4 August 2010 about 2.00pm. The task of distribution was done by Mr. Manehava. Mr. Jejemu said that knew from the First Respondent that Solars could merely be collected after voting had closed. Mr. Manehava disagreed with the allegations made by the Petitioner's witnesses in their sworn statements, that the First Respondent and his agents gave out items while the polling stations were still open. He said, ^[10]the allegations were not true, as he was in-charge of distribution, and he only delivered the items after the election period was over.

24.4 The court accepts the evidence of the First Respondent, and Mr. Manehave that the Solar Kits were delivered to communities after the voting period. This allegation has not been proved to the entire satisfaction of the court.

25. Paragraph 6 (c) (v) - that the First Respondent promised Michael Ini and his family a brand new Suzuki OBM if they vote for him. Michael Ini and family voted for the First Respondent and the First Respondent gave Michael Ini and family the new OBM on evening of 4 August 2010.

25.1 There is no evidence adduced in support of this allegation by the Petitioner. In his sworn statement, Mr. Michael Ini said that the First Respondent had never promised him and his family a brand new Suzuki OBM. This allegation has not been proved.

26. Paragraph 6 (c ) (vi) - the First Respondent, on 1 August 2010, at Tithiro village, state that the Solars are with him at his residence at Buala and that voters to drop their votes for him and collect their Solars.

26.1 Mr. Jim Holand said that he attended the First Respondent's campaign at Tithiro village on 1 August 2010. Mr. Holland did not mention in his sworn statement anything about the First Respondent asking voters to drop their votes for the First Respondent and collect their Solars.

26.2 The First Respondent denied the allegation that on 1 August 2010 at Tithiro village stated that the Solars were with him at his residence at Buala, and that voters to drop their votes for him and collect their Solars, this allegation has not been proved.

27. Paragraph 6 (c ) (vii) - First Respondent in late July 2010 to the eve of 4 August 2010, gave undisclosed amounts of funds to Chief Galali of Tithiro village with the purpose to influence voters, write down their names and to vote for the First Respondent.

27.1 Chief Christian Kokomana made this allegation in his sworn statement. He merely referred to a list. Chief Galali in his evidence denied receiving moneys from the First Respondent. Further, the First Respondent denied giving any money to Chief Galali during that period of time.

27.2 This allegation has not been proved.

The Undue Influence at Tiritoana Ward - 6 (d) of the Petition

28.Paragraph 6 (d) (i) - The First Respondent on 28 July 2010, told voters at Gurena village during the campaign trail that he has the engine, first cast their votes for him and collect the engine. The First Respondent then gave Bernard Thagramana of Gurena village a 30 HP OBM Engine after votes were casted for the First Respondent. The Engine was collected about 11.00am on 5 August 2010.

28.1 There are two parts to this allegation:

First Part:

1.1 The First Respondent on 28 July 2010, told voters at Gurena village during the campaign trail that he has the engine, first cast their votes for him and collect the engine.

1.2 The Petitioner called Chief Timothy Vihi and Messrs Clement Haramana and Charles Thegna to give evidence on this allegation. These witnesses claimed to attend the campaign meeting of the First Respondent at Gurena village.

1.3 In his evidence,^[11] Mr. Thegna said, "the First Respondent promised that our engine is at Buala, and all we have to do is to drop our votes for him and pick up the engine". Chief Vihi's evidence^[12] is that he heard the First Respondent told the community that "the engine is now at his residence at Buala, so come and pick up your engine after you have cast your vote". Mr. Haramana's evidence^[13] is that he heard the First Respondent say, "Your engine has arrived at my residence at Buala, cast your votes, and after come and pick your engine", in cross examination under oath he said "After dropping your ballots come and collect your OBM".

1.4 The evidence of Chief Vihi and Mr. Haramana consistent with the evidence of First Respondent's witness, Bernard Thagramana who said in his testimony that, "the First Respondent told us that the OBM. has arrived at his residence at Buala and we are to collect it after election. He did not force us to vote for him".

1.5 In his evidence, the First Respondent denied forcing any voter from Gurena village to vote for him before collecting their OBM.

28.2 The Petitioner's witnesses have not proved this allegation. The first part of this allegation has not been established to the standard required by law.^[14]

1. The Second Part of the Allegation

2. The First Respondent then gave Bernard Thagramana of Gurena village a 30HP engine after votes were casted for the Respondent. The engine was collected around 11.00am on 5 August 2010.

2.1 Chief Vihi's evidence^[15] is that Mr. Thagramana, collected the OBM from the First Respondent on 5 August 2010.

2.2 Mr. Thagramana and the First Respondent's witnesses confirmed picking up the OBM from the First Respondents' residence at Buala on 5 August 2010. The OBM belonged to Gurena community which the community is still using at the present.

2.3 The First Respondent explained in his testimony, that even though Gurena Community was not included in the original application for engines the withdrawal of two original applicants (Mikebolo Community and Josiah Wood (both 15hp OBMs), made him combine the funds from those two projects, and instead, purchased a 30HP OBM for Gurena village. This explanation is reasonable and there is nothing sinister about Gurena community benefiting from the spare funds.

29. Paragraph 6 (d) (ii) - The First Respondent on 28 July 2010, gave a Solar Kit, noodles and taiyo to Denis Ugramana of Tirotonna village. Denis Ugramana then forced his family to change their minds and vote for the First Respondent to enable the family to get more Solar Kits.

There are two components to this allegation.

1. The First Respondent on 28 July 2010, gave a Solar Kit, noodles and Taiyo to Dennis Ugramana of Tirotonna village.

1.1 Mr. Ugramana confirmed in his testimony that he obtained a Solar Kit on 28 July 2010. His story was that he went down to Buala and bought noodles and taiyo for his small store. On his way back he picked up the Solar Kit.

1.2 In his testimony, the First Respondent denied that Mr. Ugramana collected the Solar Kit from him at his residence at Buala on 28 July 2010. On that date, the First Respondent was not present at Buala. He was on his campaign trail in the Highlands of the Maringe-Kokota constituency. The evidence of Messrs Vihi, Haramana, Thegna, Thegramana and Joshua Votu all confirmed that the First Respondent was campaigning at Gurena village on 28 July 2010.

1.3 It clear that First Respondent was at Gurena village on 28 July 2010. The Solar Kit was given to Mr. Ugramana by the First Respondent's wife without authority and consent of the First Respondent. The First Respondent has nothing to do with the Noodles and Taiyo, as they belonged to Mr. Ugramana himself.

1.4 This allegation has not been proved to the entire satisfaction of the court.

2. On 28 July 2010, Dennis Ugramana forced his family to change their minds and vote for the First Defendant.

2.1 The evidence of Mr. Ugramana is that, he did not force any members of his family to vote for the First Respondent. The Petitioner did not call any evidence to support this allegation.

2.2 This allegation has not been proved.

30. Paragraph 6 (d) (iii) -- The First Respondent on 29 July 2010, promised voters of Bara and Kolokofa villages that he had Solar Panels for them, cast their votes for him and to collect Solar Kits (Solar Panels), inverter, battery, bulbs) at his residence at Buala. After voters cast their votes, the voters went down to the First Respondent's residence at Buala on 4 August 2010 in the afternoon.

There are two parts to this allegation.

1. The First Respondent on 29 July 2010, promised voters of Bara and Kolokofa villages that he had Solar Panels for them. Cast their votes for him to collect Solar Kits [Solar panel, inverter, battery, bulbs] at his resident at Buala.

1.1 Mr. Christian Rorofe is from Bara village. His evidence^[16] was in purported supports this allegation. He said that on 29 July 2010, during campaign, the First Respondent promised the voters of Bara and Kolokofa villages that he has solar panels for them. He told them to vote for him and thereafter collect Solar Kits at his residence at Buala. But on the contrary, Mr. Andrew Sebo of Bara village, in cross examination, confirmed that the First Respondent never told them to cast their vote for him before collecting their Solar Kits. According to Mr. Sebo, the First Respondent merely told voters to drop their votes and collect their Solar Kits afterwards.

1.2 The First Respondent denied the allegation; he said that never at anytime did he tell the voters of Bara and Kolokofa villages to cast their votes for him and to collect their Solar Kits at his residence at Buala. Mr. Manson Akle confirmed during his cross examination that at no time did he hear the First Respondent told voters to vote for him before collecting their Solars.

1.3 I prefer the evidence of Messrs Sebo, Mason Akle and First Respondent himself. Their evidence has the ring of truth. I do not accept the evidence of Mr. Christian Rorofe.

1.4 This allegation has not been proved.

Second Component of the Allegation.

2. After the voters cast their votes, the voters went down to the First Respondent at Buala on 4 August 2010 in the afternoon. The First Respondent gave them the promised Solar Kits.

2.1 Mr. Edrian Legumana alleged that the First Respondent gave the voters, Solar Kits before or on 4 August 2010: These voters were Messrs Ugramana, Riumana, Patrik Pasonodi and wife, Adrian Hilly, Joyce Thapo, Fransiter Salamago, Atkin Hatu, Batnas Maneforu, Manson Akle and wife, Andrian Legumana, Adam Zizza, Edwin Salusu and Alford Hiroau.

2.2 The First Respondent denied giving Solar Kits to persons listed in paragraph 2.1 above. There is also no evidence adduced by the Petitioner to prove those persons were registered voters, and that they voted for the First Respondent.

2.3 This allegation has not been proved.

31. Paragraph 6 (d) (iv) - The First Respondent gave the presiding officer for Kolokofa village polling station, Mr. Davidson Tene, a Solar panel on 4 August 2010, in the late afternoon. Further, the presiding officer has conflict of interest and has the ability to influence voters, as he anticipates collecting a Solar Panel during the election date.

31.1 This allegation is based on evidence^[17] of Mr. Andrian Legumana. His evidence is that he and Mr. Davidson Tene left Kolokofa polling station and came down to Buala after the close of voting. Voting closes at 5.00pm and takes about 5 hours to walk from Kolokofa village to Buala. That means it would have been dark by the time Messrs Tene and Adrian Leguhavi arrived at Buala, and not late afternoon as raised in this allegation. There is no evidence to show that voters were underlie influenced, on the basis that Mr. Tene anticipated to receive a Solar Kit. There is no evidence to show that the First Respondent gave Mr. Tene a Solar Panel in the late afternoon of 4 August 2010.

31.2 This allegation has not been proved.

32. Paragraph 6 (d) (v) -- The First Respondent on or before 4-5 August 2010, gave more than 33 Solar Kits to voters of Bara and Kolokofa, more than 33 individuals collected them according to their lists.

32.1 Messrs Andrew Sebo and Isaac Manoava of Bara village and Manson Akle of Kolokofa village raised this allegation. The First Respondent denied the allegation.

32.2 Messrs Sebo, Manoava and Akle's sworn statements did not show any evidence of the First Respondent delivering solars to voters on or before the 4 and 5 of August 2010 respectively. The First Respondents' evidence is that no person was allowed to collect any Solar Kit or OBM until after 5.00pm on 4 August 2010. This allegation has not been proved.

Corrupt practices with intention to unduly influence voters to vote the First Respondent.

33. Paragraph 6 (e) (i) - The First Respondent on 3 August 2010, gave Prisca Hetamana, leader of Mothers Union $500.00. The leader then told all voters that "Mothers Union women must vote for First Respondent because the First Respondent just gave the mothers union money".

33.1 Ms Prisca Hetamana denied the allegation. In her evidence she said that the First Respondent came to Gnulahage village on 2 August 2010 and not 3 August 2010 as alleged. He did not give her any money. She was one of the nominators of the First Respondent, but she explained that was because she approved of the First Respondent's leadership; she merely told members of the Mothers Union to vote wisely.

33.2 The First Respondent denied the allegation, and said at no time did he give $500.00 to the leader of the Mothers Union, Mrs Prisca Hetamana. He did not tell Mrs Prisca Hetamana that all registered voters of the Mothers Union must vote for him.

33.3 The Petitioner did not produce any evidence to support this allegation. It has not been proved.

34. Paragraph 6 (e) (ii) -- a public servant, Frazer Tanhimana of Kolomola village promised voters to vote for Varian as the cash was with him. Whoever cast his vote for the First Respondent will be paid.

34.1 The First Respondent denies this allegation. The Petitioner has not adduced any evidence to prove this allegation. It has not been proved.

35. Paragraph (e) (iii) - a pre-emptive list of voters were written down, male and female voters. This was done by Mark Legata, an agent and supporter of the First Respondent. A voter to confirm he voted and will have his name ticked. He expected to be given $400.00 and a Solar Kit. This happened in Sogolana/Hovikoilo villages.

35.1 This allegation was based on the evidence^[18] of Mr. Samson Ura who states "Mr. Mark Legata my real uncle during the campaign trail, has possession of a list said to be prepared by him. He forced Mr Legata on many occasions to tick the names of voters who support the First Respondent as well as to include others in the list which include Basi, Jimmy Kiko and myself".

35.2 In his evidence^[19], Mark Legata clarified that he prepared his own personal list not list to influence voters, but out of his own interest to list the names of voters who might vote for the First Respondent. He never ticked the names on the list and never told those persons about the list and that they would be given $400.00.

35.3 It is obvious that this allegation has not been proved.

36. Paragraph 6 (f) (i) - at around 7.00pm on 2 August 2010, Patterson Tetei, a supporter of the First Respondent showed a list of voters to one Jius Takle. Tetei promised that the First Respondent will give $400.00 and set of Solar to Jius Takle if he cast his vote for the First Respondent.

36.1 Mr. Tetei in his sworn statement stated that he never met Mr. Takle on 2 August 2010 because at that time, he was travelling from Russell Islands to Isabel and did not arrive until the next day, that is 3 August 2010; Mr. Tetei denied ever meeting Mr Takle.

36.2 This allegation has not been proved.

37. Paragraph 6 (f) (ii) - at about 9.00pm on 3 August 2010, Wellington Pitu, a supporter, agent of the First Respondent at Hovikoilo village hosted a function that evening at his residence. He promised to those voters present that money will be given if voters voted for the First Respondent on 4 August 2010. The voters casted their votes for the First Respondent but did not receive any money.

37.1 This allegation was made by Mr. James Pitakolo in his sworn statement.^[20]

37.2 That on or about 2 August 2010 while he was in Tony Pitu's house at Hovikoilo village, Mr. Pitu, his in-law, said that the First Respondent had some cash and Solar ready to be freely given out to any voters who vote for him.

37.3 The evidence of Mr. Pitu is hearsay and is inadmissible.

37.4 There is therefore no evidence to prove these allegations.

38. Paragraph 6 (f) (iii) - on about 4.00pm Michael Teonogu at Hovikoilo did promise to one Elikana M of the same village that if he voted for the First Respondent, the Respondent will give him $500.00, a Solar and Copper.

38.1 Mr. Michael Teonogu gave evidence and confirmed that Elikana M was his distant uncle and that he knew him very well. Mr. Elikana M however did not stay with his family. Mr. Teonogu denied talking to Mr. Elikana.

38.2 The Petitioner did not adduce any evidence to prove this allegation. It is therefore not proven.

39. Paragraph 6 (f) (iv) - on 7.00am on 3 August 2010, Baddley Tabiru gave undisclosed amount of money to Mark Legata of Sogolona village for buying of voters for the First Respondent.

39.1 This allegation was made by Mr. John Varian, a witness for the Petitioner. In his evidence Baddley Tabiru did not give any money to Mark Legata.

39.2 There is no credible evidence to prove this allegation.

40. Paragraph 6 (f) (vi) - that on 5 August 2010, Chief Noah Kotesi alongwith Elison Kolobina collected their Solar Kits.

40.1 This allegation was made by Mr. Samson Ura. The First Respondent's evidence is that he did not deny that Chief Kotesi collected his Solar Kit on 5 August 2010. His explanation was that Chief Kotesi was the other person who personally submitted his request for a Solar Kit way back in early 2010. (The other person was Mr. Denis Ugramana). Actually, Mr. Elison Kolobina did not carry another Solar Kit whilst Chief Kotesi carried his own solar kit.

40.2 This allegation has not been proved.

41. Paragraph 6 (f) (vi) - that an agent/supporter of the First Respondent forced Nolo and his family to vote for the First Respondent. The agent promised that the First Respondent will give them something. Nolo's family voted for the First Respondent in the hope they will be given property or cash.

41.1 The Petitioner did not produce evidence to prove this allegation. It has not been proved.

42. That the Petitioner states, that on December 2009, the First Respondent gave villagers, Clinics and Churches materials including Solar Kits. On or about 3 August 2010, the First Respondent made a service message over Solomon Islands Broadcasting Corporation (SIBC) to voters of Maringe Kokota Constituency to think about the materials he gave, the engines he gave to the villages, clinics and churches and to cast their votes for the First Respondent.

42.1 The First Respondent denied making this service message. On 3 August 2010, he was at Buala with his supporters. It has not been proved that this service message was made by the First Respondent and that it had any effect on the votes which the First Respondent received in the election.

43. This court finds that the allegations made against the First Respondent in this Petition have not been proved to the entire satisfaction of the court. The Petition is dismissed with costs.

Orders:

1. The Petition by the Petitioner is dismissal.

2. The Petitioner is to pay the First Respondent's cost of this Petition.

3. His Excellency the Attorney General will be notified that the First Respondent has been duly elected to the National Parliament as the member for Maringe Kokota constituency.

Order accordingly.

THE COURT

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^[1] Evidence of Fores Autedi.
^[2] In sworn statement of Avix Manehave filed filed on 4 April 2011 response to Petition.
^[3] Sworn statement of Avix Manehave filed on 4 April 2011.
^[4] Sworn statement of the First Respondent in response to Petition at page 7 filed on 4 April 2011.
^[5] Sworn statement of Avix Manehavi at paragraph 11, and filed on 4 April 2011.
^[6] First Respondent's Sworn statement filed on 11 April 2011.
^[7] Paragraph 12 of First Respondent's sworn statement filed on 11 April 2011.
^[8] Sworn Statement filed on 25 February 2011.
^[9] Sworn statement filed on 22 October 2010.
^[10] Anix sworn statement filed on 4 April 2011.
^[11] Sworn Statement filed on 22 October 2010 at Paragraph 3.
^[12] Sworn Statement filed on 22 October 2010 at Paragraph 7.
^[13] Sworn Statement filed on 22 October 2010 at Paragraph 4.
^[14] Sworn Statement filed on 22 October 2010 at Paragraph 4.
^[15] At Paragraph 6 above.
^[16] Sworn Statement filed on 22 October, Para 3.
^[17] Sworn Statement filed on 25 October 2011.
^[18] Sworn Statement of Samson Ura at paragraph 4 filed on 22 October 2010.
^[19] Sworn Statement filed on 22 October 2011.
^[20] Sworn statement filed on 22 October 2011.