Inoke v Tran [2012] SBHC 49; HCSI-CC 340 of 2010 (18 April 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)
Civil Claim No. 340 of 2010

BETWEEN

ISAAC TOSIKA INOKE
Petitioner

And

NAMSON TRAN
First Respondent

And

THE ATTORNEY GENERAL (In respect of the
Returning Officer for the West Honiara Constituency)
Second Respondent

Mr Pitakaka for the Petitioner
Mr Sullivan QC and Mr Soma for the First Respondent
Mr Banuve for the Second Respondent

Date of Hearing: 20th February 2012 to 24th February 2012
Date of Judgment: 18th April 2012

Judgment

1. National elections were held in Solomon Islands on 4th August 2010. The Petitioner and the First Respondent both contested the seat for the West Honiara constituency. The First Respondent won the seat. The Petitioner filed a petition on 14th September 2010. It contained a number of allegations of bribery (paragraph 3) and allegations of personation and other "irregularities" (paragraph 4). The latter were dealt with by Goldsbrough J on 4th July 2011. After a hearing His Lordship ordered Paragraph 3(v) and the whole of Paragraph 4 to be struck out. That left allegations of bribery at Tabaa Village (Paragraphs 3 (i), (ii), (iii), (iv) and (vi)), allegations of bribery at Namoruka Road White River (Paragraphs 3 (i) to (iii)) and allegations of bribery at Bishop Epalle School (Paragraph (i)). Unfortunately the numbering is repeated in Paragraph 3 but each allegation of bribery was set out under a sub-heading and so there was and is no possibility of confusion.

2. At Tabaa village it is said agents of the First Respondent paid, and promised, money with a view to procuring votes. The details alleged were the First Respondent's agent by the name of Andrew Toto Walasi paid one David Sulia an amount of $700.00 in cash. The money was paid over to Sulia in October 2009 with the intention that he would, "Conduct a house to house survey at Kaibia". Sulia would then provide the names to Walasi, "For the purpose of registering the names for the 2010 General Election to vote for the First Respondent". Sulia was also told to advise those in the households he surveyed they would be paid "A Christmas special" and school fee grants. Later, in December 2009, it was alleged a further $1,000.00 was paid to Sulia together with a SIM card worth $400.00 to enable him to "work closely" with named Assistant Registration Officers, two of whom were, "seen to be Polling Agents for the First Respondent" on the day of the election.

3. As to Namoruka village, it is alleged that there were two incidents on the day before the election. First Kwaimani Malolo, an agent for the First Respondent, paid $100 each to Saemala Bolana David, Clera Rua and Betty Mamae in order to induce Saemala Bolana David to vote for the First Respondent. Secondly, Mr Malolo is said to have paid Mary John and Eda Rusu $100 each in order to induce them to vote for the First Respondent.

4. The third allegation is that the First Respondent paid school fees totalling $23,000 to Bishop Epalle School which were due from "various students" to persuade them "and their parents" to vote for him. This was in February 2010.

5. The consequences arising from "corrupt or illegal practice" proven to have been committed in connection with elections are set out in the National Parliamentary Provisions Act [Cap.87] ("the Act"). They were comprehensively dealt with by Goldsbrough J in his judgement dated 11th March 2011 in Fono v. Fiulaua Civil Case No. 335 of 2010. It would be very difficult to add anything of any real use to His Lordship's exposition of that aspect of election law. There is a distinction between general bribery dealt with by section 66(2) of the Act and bribery committed by the candidate elected or his agents as provided for in section 66(1). With the former the behaviour proscribed by the legislation must have so extensively prevailed that it may have "reasonably supposed to have affected the result". With the latter, the qualification is absent and the section states:-

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

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.

6. As His Lordship also explained in the Fono case, the "saving" provision of section 9 of the Act does not apply:

"Thus it can be said that where an election can be shown to involve the commission of a corrupt or illegal practice by the candidate or his agent, the election cannot be said to have been conducted in accordance with the principles of this Act".

7. To establish what is proscribed by the Act reference must be made to sections 70 to 78. Section 70 provides that any person who is guilty of bribery, treating or undue influence, "shall be guilty of a corrupt practice". The section then sets out the consequences of a conviction. Of course, it is not necessary for there to have been a criminal conviction in order for section 66(1) to come into play. That is clear from the wording of the sections. For example the opening words of section 71 are, "The following persons shall be deemed to be guilty of bribery within the meaning of this Act". A person can therefore either be convicted or found guilty of bribery or, in purely civil proceedings, is deemed to be guilty of bribery if the circumstances as set out in sub sections (a) to (g) are proven to have existed. There are no allegations of treating or undue influence set out in the petition now before the court and so we are dealing solely with bribery as is set out in section 71.

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 practice is on the Petitioner. The standard of proof is very high [1]. 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 based on that evidence.

9. At the conclusion of the Petitioner's evidence it was conceded there was no, or insufficient evidence relating to the alleged bribery at Tabaa Village. The grounds where those allegations were set out were formally struck out. That left the allegations of bribery at Namoruka and those at Bishop Epalle School.

10. Although there are three incidents of bribery at Namoruka alleged in the petition there are, in fact, only two. The paragraph numbered (ii) is a repetition of paragraph (i). The first incident described in petition is of Kwaimani Malolo (who is said to be an agent of the First Respondent) paying $100 to Saemala Bolana David, Clera Rua and Betty Mamae. The money was handed over with a view to "bribing" or inducing Saemala Bolana David to vote for the First Respondent. The second allegation is of Mr Malolo handing over $100 in cash to Mary John and Eda Rusu to induce them to vote for the First Respondent. There were a number of witnesses who made sworn statements concerning the allegations both on behalf of the Petitioner and on behalf of the First Respondent. At trial only one witness attended to give oral evidence on behalf of the Petitioner about the actual handing over of money at Namoruka. There were five witnesses called by the First Respondent including two of the persons said to have received cash. The details of the allegations are that at approximately eight to eight thirty on the evening of 3rd August 2010 Mr Malolo was at Namoruka and he handed out money to a number of people saying words to the effect, "I'll be honest (or true) to you, here is your money, you be honest with me and vote for the Coconut". It was never disputed the First Respondent's election symbol (which appeared on ballot papers) was the coconut. Mr Malolo is said to have also paid for all the betelnut in the small market area at Namoruka. This was broadly what the evidence by Phillipa Kobi amounted to. Two of the persons named as recipients made sworn statements and attended court to give evidence. Mary John denied receiving any money. She said between 8 to 8:30 p.m. on the evening of 3rd August 2010 she was at home. She was adamant she never saw Mr Malolo that evening. Eda Rusa denied ever being given any money. She said that on the evening of 3rd August she was on the MV Daystar waiting to go to Auki. She had tried to board the vessel on the Monday previously but it was full and so at about 6 p.m. on the 3rd she boarded the vessel and slept on it in order to guarantee her passage. A betelnut stall holder was called to give evidence. He knows Mr Malolo, he is his Uncle. He remembered Mr Malolo buying betelnut and leaf for $5 at about 4:30 to 5 p.m. Ms Kobi's evidence was put to him and he denied all of the relevant detail. Mr Malolo came to court and gave evidence. He denied being in Namoruka at the time suggested. He had travelled to Rove earlier in the day and at the time he was said to be handing out cash at Namoruka he was at the house of Silas Karani, a police officer and the Director of the National Criminal Investigations Unit at Rove. He was there until about 10 p.m. Mr Karani was called and he confirmed what Mr Malolo had told the court.

11. The issues of both the burden and standard of proof required in petitions involving disqualification from office were set out earlier at paragraph 8. In relation to the allegations involving Mr Malolo at Namoruka on the evening of 3rd August 2010, I have to be convinced or entirely sure he was there and that he handed out money to various people as an inducement to vote for the First Respondent. I would also have to be sure that he did so as an agent of the First Respondent. Whilst the standard of evidence, or how persuasive it is, is not to be measured by the number of witnesses that repeat it, it is clearly desirable that evidence is corroborated. This is especially so where the standard required is so high. There is no corroboration of Ms Kobi's evidence and whilst I may believe it to be true it is difficult to be convinced by uncorroborated evidence particularly when there is direct evidence that is contradictory. In the circumstances I cannot say I am convinced that Mr Malolo was at Namoruka and handed out bribes as alleged. It is not necessary then to go on to consider whether there is sufficient evidence to say that he was, for sure, doing so as an agent of the First Respondent. These grounds must fail.

12. There only remains the allegation involving bribery at Bishop Epalle School. The First Respondent does not dispute he paid of arrears of school fees for various pupils totalling $23,000.00. Whilst he did not personally make the payment he acknowledges the money came from his pocket. The First Respondent maintains the payment of the school fees was nothing more than another example of his charitable gifts and that it was not intended to influence the way parents or pupils intended to vote. Indeed, he says the gift was well before the election and before he had announced his intention to seek election as the Member of Honiara West. In short, the payment of school fees was not made with any corrupt intention.

13. A passage from the 4th edition of Halsbury's Laws of England has been quoted with approval in a number of cases [2]:-

"The distribution of charitable gifts to voters has always been allowed. On the other hand what are called charitable gifts may be merely a specious and subtle form of bribery. If a gift is charitable it will not become bribery because of the use made of it, even if political capital is made out of the gift; it is not possible by way of subsequent act to make that which is legal at that time illegal and criminal".

It must be remembered that another passage from the same edition of Halsbury has also be quoted with approval:-

"The imminence of an election is an important factor to be taken into consideration in deciding whether a particular act of charity amounts to bribery."

From the Samoan case of Vui v. Ah Chong [3] it seem these quotations from Halsbury's Laws are a crystallisation of more extensive comments found in Parker's Powers Duties and Liabilities of an Election Agent and Returning Officer and Parliamentary Elections in England and Wales 6th Ed. Alternatively it maybe Parker is an expansion of the comments in Halsbury's Laws. It matters little but the fuller excerpt from Parker is more helpful:-

"'The imminence of the election may have a considerable effect upon the decision whether or not a particular act of charity amounts to bribery. Thus it was said that a charitable design may be unobjectionable so long as no election is in prospect yet, if circumstances alter and an election becomes imminent the candidate if he then goes on with that design will do so at the risk of being found guilty of bribery'"

Earlier at page 286, the author observed,

'it is obvious that what are called charitable gifts may be nothing more than a specious and subtle form of bribery, a pretext adopted to veil the corrupt purpose of gaining or securing the votes of the recipients. And if this is found to be the object of the donor it matters not under what pretext, in what form, to what person or through whose hands the gift may be bestowed or whether it has proved successful in gaining the desired object or 'not.'"

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 the label appears to be motive.

14. In connection with the issue of motive in his judgment in Vui, Sapolu CJ quotes another textbook:-

"In Rogers on Elections 20th ed, the learned author says at p.270:

'Where there are two motives, e.g. one kindness or charity and the other corruption, the question is which was the governing motive: see Salisbury (1883) 4 O'M & H 28; St George (1896) 5 O'M & H at 95; King's v Lynn (1911) 6 O'M & H at 182; Kingston-upon-Hull (1911) ibid 378; and East Nothingham (1911) 6 O'M & H at 302'"

However, as the Learned Chief Justice puts it, the authorities are "not entirely consistent". There is the case of Ah Him v. Amosa [2001] WSSC 16 where it was said:-

"It would be sufficient for the purpose of establishing the intent required for bribery and treating in terms of the Act, if one of the motives which accompanied the presentation of money or food was to induce electors to vote for the respondent: see the judgment of Donne CJ in the High Court of Cook Islands in Re Mitiaro Election Petition [1979] 1 NZLR S1. at s.12"

That view is the view favoured by the English courts and Sapolu CJ cites Lord Diplock's comments in the criminal case DPP v Luft [1979] 2All ER 569:-

"To speak of a dominant intention suggests that a desire to achieve one particular purpose can alone be causative of human actions, whereas so many human actions are prompted by a desire to kill two birds with one stone. For my part, I prefer to omit the adjective 'dominant".

A further quotation from Rogers [4], in my view, makes clear what the court must bear in mind when considering the whole issue. It was set out in my judgment in Ha'apio and I make no apologies for repeating it again in full;

"The intention of a person charged with bribery must be gathered from his acts. Mellor J in Launceston (1874) 2 O'M & H 133 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 therefrom. And this was followed in Kingston-upon-Hull (1911) 6 O'M & H 389, 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 the things which he did there is only one conclusion to draw and that is that he has done that which he said he did not intend to do."

15. Is there any evidence to show that the First Respondent did what he says he did not, that is, make a generous payment which was not wholly or totally charitable but one tainted with corrupt intention? The only witnesses, apart from the First Respondent, to give evidence about the payment are Jackson Meke and Israel Maeoli. Mr Meke has some interesting beliefs but the only significant evidence he could give was that money had been paid for school fees. In cross examination he confirmed the School Bursar had given the list of names to the First Respondent. Mr Meke took no part in any discussions about the fees. In his sworn statement Mr Maeoli confirms the payment of fees to the school. He says he arranged payment with the First Respondent after he had been approached by some parents. He had no direct contact with Mr Meke over the fees. His contact was with the Bursar and the parents. He was given a list by the Bursar showing those pupils where fees were outstanding. He passed that on to the First Respondent who gave him cash and he paid that to the school. There was no suggestion that either the First Respondent or Mr Maeoli chose names from the list and only paid for those pupils. It was not said as such but the implication was that The First Respondent paid all outstanding school fees.

16. The timing of the payment was not disputed. The copy receipts exhibited are almost illegible but seem to carry the date 10th February 2010. Mr Meke says the payments were made on 5th February. At that time the date of the election had not been announced and the First Respondent was not an official candidate. Leaving aside the logical difficulty of his being an official candidate when there was no official election in train, it was not disputed that the First Respondent had not announced any intention to stand. He had considered the possibility in late 2009 because he had been, on his own evidence, approached by Mr Maeoli and/or others about becoming the MP for West Honiara in late 2009. However, it was accepted by the Petitioner that a formal announcement was not made until April 2010. There is undisputed evidence the First Respondent had made previous charitable gifts of cash and goods to various organisations, for example the National Paralympic Committee, Abira community, White River School and Dunde Football Club; but he had never made payments to Bishop Epalle School before.

17. Looking at what is not disputed and what is admitted there is a distinct lack of convincing evidence the First Respondent paid the school fees with any ulterior motive in mind. It was one of several contributions he had made over a period of years and which he classified as "community assistance". There is no suggestion that he suddenly started to demonstrate his largesse just before the election and it has to be accepted this was part of a pattern established over a long period of time. Whilst it is true he may well have been able to make political capital out of his generosity, that is an acceptable state of affairs (see the excerpt from Halsbury's laws set out at paragraph 13 above) and there is no evidence that he made those payments, or any other charitable gift, with a view to making political capital out of them. There is no evidence to show this was part of a "campaign" to persuade voters what a wonderful fellow he was.

18. This ground must also fail. The other grounds having been struck or otherwise dealt with, the Petition is dismissed. The costs should follow the event and the Petitioner shall pay the costs of the First Respondent, such costs to be assessed on a standard basis by the Registrar of the High Court if they cannot be agreed. There shall also be the appropriate certification for Queen's Counsel.

19. I accordingly certify to His Excellency the Governor General that the First Respondent, Namson Tran, was lawfully elected as the Member of Parliament for the West Honiara Constituency.

Chetwynd J

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^[1] See Ha’apio and Ors v. Keniasina High Court Civil Case No. 343 of 2010 at paragraph 7 and the cases referred to therein.
^[2] See Thugea v. Paeni [1985/86] SILR 22 and Maina v. Magga [2008] SBHC 19;HCSI CC 228 of 2006
^[3] Vui v. Ah Chong [2006] WSSC 52 (26 Sept 2006)
^[4] 20^th Ed at page 270