Sopage v Maneka [2016] SBHC 132; HCSI-CC 435 of 2014 (12 August 2016)

	Home \| Databases \| WorldLII \| Search \| Feedback High Court of Solomon Islands

IN THE MATTER of the National Parliament (Election Provision) Act Cap. 87; and,

IN THE MATTER of the Parliamentary National General Election for North Guadalcanal Constituency of Guadalcanal Province held on 19^th November 2014.

Mr A. Radclyffe for the Petitioner
Mr P. Afeau for the Frist Respondent
Mr Muria (Jnr) for the Second Respondent

Faukona PJ: On 19^th November 2014, Solomon Islands citizens went to the polls to elect new Members of the National Parliament.

2.	Both the Petitioner and the first Respondent were among ten candidates who stood for North Guadalcanal Constituency in the Guadalcanal Province.

3.	After casting of votes and counting was done, the results were, the first Respondent polled 1484 votes and the Petitioner polled 1228 votes. The first Respondents won the election by a majority of 256 votes. 4. The Petitioner was aggrieved of the results due to cross border registration and voting which had influenced on the conduct and outcome of the 2014 national general election in the Constituency. Therefore the election of the first Respondent should be declared void on the following grounds: That the admitted breach of section 55(2) of the Constitution and section 7 of National Parliament (Electoral Provisions) Act, herein refer to as “the Act” is so serious a breach of the electoral process, that the election should be declared invalid, irrespective of the fact that the breach did not affect the result of the election. That the first Respondent or his agent encouraged or arranged for people ordinary resident outside of North Guadalcanal Constituency to register as voters in that Constituency. That (2) above is an illegal practice for the purpose of Section 66 (1) of the Act.

4.	The legal onus of proving vests upon the Petitioner to prove to the required standard for the purposes of section 66 (1) of the Act, that the first Respondent or his agent committed one corrupt or illegal act so that if it is proved that either of them encouraged or arranged for one voter to register in the wrong constituency, that is sufficient to enable the election to be declared invalid.

	The allegations:

5.	Apart from cross border registration, there being no other allegations of corruption or illegal practise or irregularity in respect of the election processes. What comprises or distinguishes the act or influence under the election process will be eloquently edified in latter course of this judgment. For good reasons, it is enough to say that the breach of the Constitutional provision as alleged was admitted in evidence. What remains are legal issues which the Court will critically assessed its outcome.

	The Issues:

6.	There could be other issues link with the major one. The major one is whether the breach of cross border registration is a serious breach of the election process capable of invalidating the election.

7.	Related to the first issue is whether the first Respondent or his agent committed a corrupt or illegal act, that either of them encouraged or arranged for one voter to register in the wrong constituency, upon proof, is sufficient to declare the election invalid by virtue of section 66 (1) of the Act.

8.	The Law:

	The laws that are relevantly applied in this case are as I make reference herein. Section, 5 of the National Parliament (Electoral Provisions) Act expressly stated in a generic term that a Member of Parliament is elected by way of complying with the provisions of the Constitution and the Act. Section 7(1) of the Act provides that no person shall vote in an election unless he is registered as prescribed by Section 56 of the Constitution.

9.	Section 55 (2) (b) of the Constitution states that no one can be registered as an elector in any constituency he is not ordinary resident.

10.	Section 9 of the Act States that an election cannot be invalid by reason of non-compliance with the Act, if it appears that the election was conducted in accordance with the principals of this Act and that the non-compliance did not affect the result of the election.

11.	Section 66 (1) of the Act deplores any corrupt or illegal practice done by the candidate or his agent in connection with the election shall invalidate the election.

12.	Section 77 (a) provides that any person who votes, or induces, or procures any other person to vote, at an election, knowing that he or such other person is prohibited by any provision of this Act or of the Constitution or any other law from voting at such election shall be guilty of an illegal practice.

	Agreed facts:

13.	Certain facts which have been conceded by the Counsels are common knowledge hence, it is not necessary to pin point by way of reference. However, the most significant point which this petition premises and which has been conceded by Mr Afeau but not by Mr Muria (Jnr) for reasons he alluded in his submissions, is in relation to cross border registration and voting. Cross border registration and voting.

14.	The actual act complained of that 173 people ordinary resident outside North Guadalcanal Constituency were registered to vote in North Guadalcanal Constituency, a neighbour Constituency. 160 of those registered voters actually voted. For clarification purposes, persons whose names appeared in Annexure A at all material time’s ordinary resident within North East Guadalcanal Constituency but were registered to vote at Dadave, Sali and Pitukoli polling stations which are located within North Guadalcanal Constituency and they did in fact vote at the said polling stations. And persons whose names appear in Annexure B at all material times ordinary resident of Mamasa, Vasakiki and Ghautina villages situated within Vulolo Ward in the Central Guadalcanal Constituency but were registered to vote and did vote at Pitukolu Polling Station in the North Guadalcanal Constituency.

15.	If the act of cross border registration and voting is proved then undoubtedly S.55(2)(b) of the Constitution was breached. Whether that breach is substantial in itself and by that is capable of over-turning the numerical result of the election. Alternatively, whether such breach tantamount to illegal practice which is prohibited by Section 66 (1) of the Act which if proved will invalidate the election.

16.	Counsels have their own opinions as to the application and interpretation of law. However, one thing that is commonly acknowledged that even if 160 registered cross border voters voted for the Petitioner, the first Respondent would still have a majority over the Petitioner.

17.	Mr Redcliff’s argument is that non-compliance with the Constitution is fatal, the fact it did not affect the numerical result of the election is irrelevant. The breach is so serious that it undermines the electoral process to certain degree that the election should be declared invalid.

18.	Mr Afeau though admitted the breach, seems to focus strongly on S.9 of the Act as read in collaboration with S.66 (2) of the Act, that the non-compliance or illegal practice did not affect the result of the election, only where such act have so extensively prevailed to be reasonably supposed to have affected the result the election shall be void.

19.	Mr Muria (J) on the other hand seems to deny a breach has been committed or an offence has been committed under S. 55 (2) (b) of the Constitution or S. 66 (1) of the Act. That the Petitioner does not discharge the burden of proving that the persons who allegedly wrongly voted in North Guadalcanal Constituency were not ordinary resident in North Guadalcanal. I will deal with Mr Muria’s argument first.

20.	To substantiate his argument he questions the Petitioner why he did not raise objections to the election list at the relevant time, and if he did, was it wrongly dismissed or ignored? The fact that the register of votes was settled after the process had been done and this should entitle them to vote in the election, see S. 22 1(a) of the Act.

21.	To reinforce strength to his propositions Mr Muria refers to the evidence of Chief Gheti. He resides at Tenavatu Village in North East Guadalcanal but he is also a land owner at Mbalasuna in North Guadalcanal and is one of the trustees of the landowners of GPPOL. He considers himself and other residents of Tenavatu and Komukama villages as originally from Mbalasuna and Mbarande areas. In such circumstances chief Gheti and others are entitled to choose either of the two constituencies to cast their votes. Mr Muria (Jnr) then refers to the case of Maeke V Sopage^[1]. In that case His Lordship Palmer CJ refers to the case of Tegavota V Bennett.

22.	In dealing with Mr Muria (Jnr’s) submissions it is relevant and appropriate to bisect the rationalisation of the case. In Tegavota’s case Daly CJ pointed out though uphold that in Solomon Islands people retain ties in their home village does not apply fully to this case. The rationale in that case, as I would glean, is that a person may reside in Provincial Centres or Honiara to work but they still connect to their home villages, they choose where to be registered.

23. 24.	Secondly S. 55 (2) (b) of the Constitution is very simple. Noted that the Constitution is the supreme law of the land. This section must be given its ordinary meaning. It is irrelevant to employ other agents of interpretation to assist in concluding the meaning. It merely states where one normally resides in that particular Constituency should be registered there, he cannot be registered in another constituency but with one exception that was expounded in the case of Tegavota V Bennett. After all I do not accept Mr Muria’s submissions. In regards to failure to make objections to voters list, it would be out of sense to file double objections. The first Respondent’s agent had already made objections but was rejected; what is the purpose of another objection, perhaps will add strength may be. It is no point to persist, and I reject such proposition.

24.	I noted there has been common understanding that there is no consequential penalty attached to S. 55 (2) (b) of the Constitution. However, S.7 of the Act has profoundly exerted that a Member of Parliament is elected in accordance with the provisions of the Constitution and the Act. Meaning any non-compliance must be dealt with by the two authorities accordingly.

25.	In the absence of any consequential penalty attached to such breaches makes me curious to read in depth of Section 55 of the Constitution. I noted the section specifically function to provide qualifications and disqualifications for registration as an elector. See foot note on the left side. To me the foot note clearly indicated that should anyone breached any of the sub-sections of Section 55 will be disqualified, in this case he cannot vote because Section 55 (2) (b) had been breached.

26.	The first disqualification stage should occur by way of omissions and objections under Section 19 of the Act. Should objection are rejected, the second stage is when a voter is present to seek a ballot paper. The presiding Officer has the power to refuse to grant a ballot paper and allow the offender to cast his vote. Should nothing is done at that stage, then the Court has the power to disqualify a person who breached Section 55 (2) (b) of the Constitution.

27.	The process of disqualifying a person by the court, who indulged in a breach of Section 55 (2) (b) of the Constitution, is to deduct the total of cross border votes from the winning candidate. If the net result still maintains a majority for the winning candidate then the breach has not affected the result of the election. In this case the first Respondent still has 96 votes majority over the Petitioner.

28.	This approach is slightly different from the expectation of the case authorities provided by the Counsels. In particular, I specifically refer to the case of Fatai V Maesua^[2]. At paragraph 4.6 of Mr Radclyffe’s submission he quoted what Awich J stated at page 3,. “If the non-compliance has not affected the result, the Court may still invalidate the result of an election if the non-compliance was so bad that the election was not conducted in accordance with principles in the legislation under which the election was conducted”.
29.	That statement is a statement of truth, that the court may still invalidate the result of an election if the non-compliance was bad although it may not have affected the result.

30.	The Fatai case deals with the irregularity in the conduct of the election because voting at two polling stations was allowed to go beyond 5pm the time allowed by regulation 19. In fact it opened for 1 hours after 5pm and the votes casted totalled up to 40. The respondent won by majority of 51 votes. His Lordship accepted the error which was not as bad as to render the election to be regarded as not having been conducted substantially in accordance with the Local Government (Election) Regulations and so to cause the Court to invalidate the election. The election was not a sham as the error of maximum of 40 votes did not affect the result. His Lordship determined the respondent David Maesua was the successful candidate and was elected and returned.

31.	In the case of Maetia V Dausabea^[3] which Awich J referred to, was to illustrate the law, “(If the non-compliance has not affected the result, the Court may still invalidate the result)”. In fact the court actually stated as thus, “if the non-compliance was so bad that it may be said the election was not conducted in accordance with the principles in the legislation”. His Lordship pointed out that Maetia’s case was not determined on the ground that voting went beyond closing time alone. However in that case Sir Muria CJ considered four (4) breaches of the law in all, they were: (1) Polling station remains opened beyond 5pm until 7pm, (2) Relatively large numbers of voters voted outside closing time and that affected the result of the election. (3) That the respondent arranged for husband and wife who was not citizen to register and vote. (4) The respondent arranged for husband and wife who were in Solomon Islands, to register and vote.

32.	Those facts showed that the election did not take place substantially in accordance with the principles of the election laws. And that I take it and accepted as what His Lordship said about the law, that the non-compliance was so bad that render the election was not conducted in accordance with the principles in the legislation.

33.	In this case, is one allegation of non-compliance that is cross border registration and voting which in my opinion Section 55(2)(b) of the Constitution has prohibited, at the same time provided a restorative effort to deal with such non-compliances.

34.	A similar circumstance was considered in Ulufa’alu V Saemala^[4] where one of the grounds in the petition was that 60 voters who voted at that election were not properly registered as voters as required under the Act. The Court held that despite that irregularity the result was not affected therefore the Respondent was duly elected. See also Auga V Folotalu.

35.	In this case, I concur there was breach or non-compliance is serious but does not fatal to the extent as Mr. Radclyffe describe in his submissions. Section 55 provides a non-optional leeway approach as to how to deal with the breach, and that is exactly the line of approach I took with the assistance of the case authorities. The breach which totalled up to 160 votes cannot change the numerical result of the election. Therefore by virtue of Section 53 (1) of Constitution which conferred jurisdiction upon this Court to deal with the question whether a person has been validly elected a Member of Parliament, I must conclude, having satisfied on the standard of proof required that the first Respondent was validly elected by reasons I have narrated in this case so far. Therefore the first alternative argument in the Petitioner’s submission must therefore be dismissed accordingly.

	The second alternative argument under Section 66 (1) of the Act.

36.	The alternative argument raise by the Counsel for the Petitioner is that the first Respondent or his agent committed an illegal practice by encouraging people ordinary resident outside North Guadalcanal Constituency to register in that constituency, knowingly in doing so encouraged people to breach Section 55 (2) (b) the Constitution.

37.	The Counsel also refers to Section 77 (1) of the Act makes it an offence for any person who vote, or induces or procures any other person to vote at an election, knowing that he or such other person is prohibited by any provision of this Act or of the Constitution or any other law for the time being in force in Solomon Islands from voting at such election hence shall be guilty of illegal practice.

38.	The Court must be satisfied that either the first Respondent or his agent induced a person to register to vote or procured a person to register to vote in the North Guadalcanal Constituency where that person is not ordinary resident, then he has committed an illegal offence.

39.	Very interesting is the submission by Mr Muria (J) that the capability pursuant to Section 66 (1) cannot be established on wrongful registration alone but that corrupt or illegal act must be connected with the election, and I do take note.

40.	In any course, Counsels for both Respondents concertedly averred that the Petitioner must have evidence to proof on the standard that the first Respondent or his agent committed an illegal practice by voting or inducing people to register or vote where they knew other persons are prohibited from voting by the Act and the Constitution.

41.	There can be no doubt that the first Respondent and Chief Gheti knew that out of area registration and voting was wrong in particular in a constituency which they do not ordinary reside.

	Is Chief Gheti an agent of first Respondent:

42.	To meet the criteria of qualification under Section 66 (1) there has to be proof that Chief Gheti was the agent of the first Respondent. Unless that has been done the election cannot be invalidated. In this case Chief Gheti admitted he registered and voted in the North Guadalcanal Constituency, a constituency he did not ordinary resides. There is also evidence that he encouraged the people from Tenavatu and Komukama villages to register and vote in the north Guadalcanal Constituency. By doing all that, is he an agent of the first Respondent? Was he been chosen or appointed by the first Respondent to carry out that task as an agent? If it is proved that Chief Genti is an agent of the first Respondent then he committed illegal practice.

43.	Chief Gheti used the words in paragraph 13 of his sworn statement, “North Guadalcanal is where we originated from”. Those words were the only words he used in his speech to his people during the meeting he conducted on a Sunday afternoon which may link them to North Guadalcanal Constituency. There was no mention that he told his people at that meeting to vote for the first Respondent. However, those words implicated that his people have freedom to vote a candidate of their choice in North Guadalcanal Constituency, not specifically mention the first Respondent.

44.	Further still, there is evidence that Chief Gheti on election day displayed by holding up the symbol of the first Respondent to his people as they were ready to travel to polling station to vote. Chief Gheti did not deny that evidence in court. Would that mean Chief Gheti is an agent of the first Respondent? A person who holds up a symbol of a candidate does not always mean he is an agent or a campaign manager; he can be a supporter of that particular candidate. I acknowledge a chief holds a very important and responsible role in the community; he can be an influential person as well. In any event, a person or a chief who works or acts as an agent or campaign manager for a candidate cannot perform an agency function in isolation. The candidate, in this case the first Respondent, must be fully aware of by choosing, appointing and must mandate him to perform such function.

45.	Supporters often campaign for the candidate of their choice. That does not mean they are agents. In some or most cases those supporters campaign without the knowledge of the candidate. In this case Chief Gheti’s village in North East Guadalcanal is a long distance away from the first Respondent’s home in North Guadalcanal. And whether what Chief Gheti did was authorised by the first Respondent in this case I doubt

46.	The evidence that may suggest possible agency relationship between the first Respondent and Chief Gheti comes from the Petitioner. In his evidence narrated in Court stated that Chief Gehti and the first Respondent had met many times before registration occurred. That is very cheap evidence. The problem with that evidence is that there was no place of meeting mentioned, no date of meeting was mention and there was no mention of the subject matter discussed. Hence it is a piece of evidence which is general in nature and does not proof any agency relationship. Any tribunal of fact, or Court of law would not accept such evidence for lack of preciseness and clarity.

47.	For its purpose, that evidence is given aiming at linking Chief Gheti to the first Respondent, and to convince the Court to draw conclusion that there was an agency relationship existed. In my personal view, that evidence is not convincing and I am not satisfied on the balance to proof to the standard as required.

48.	To certain extent, witness Steven Ata confirmed that Chief Gheti attended the launching of the first Respondent’s Campaign programme which Chief Gheti does not deny. But still does not add credibility or show there is evidence to suggest that Chief Gheti is an agent of the first Respondent. Launching of campaign programme is a public occasion where people from different villages, relatives, or non-relatives, whether inside or outside of the Constituency attended. It is a public forum and public have liberty to attend and listen to presenters.

49.	The first Respondent knew Chief Gheti attended his launching but denied colluded with him and encouraged him to encourage others residing in North East Guadalcanal Constituency to register and vote in the North Guadalcanal Constituency.

50. 51.	In cross examination the first Respondent outlines by naming nine working committee or congress members, Chief Gheti was not one of them. He also named his campaign managers which comprised of five people, Chief Gheti was not included. He further states that those who were members of his congress and campaign managers were chosen and appointed by him. There is no mention of any agents. Being outside of the official establishment set up by the first Respondent, prompted conclusion that Chief Gheti is not an agent of the first Respondent but a mere supporter and voter. Whatever actions he resumed to was wrong and was done on his own volition and decision. There is no evidence to suggest that Chief Gheti was controlled or advised or collaborated with the first Respondent or any member of his official team.

52.	I acknowledge that Chief Gheti’s actions were not right. The Act may describe it as illegal practice, but that illegal practice becomes water under the breach because he is not an agent of the first Respondent. That is a requirement under S.66 (1) of “the Act” in order to invalidate the election. That has not been proved and the actions by Chief Gheti were actions of an individual which do not form any basis to invalidate the election and its results.

52.	Chief Gheti may be guilty of illegal practice under Section 77 of the Act, because he registered and voted against Section 55 of the Constitution which is outside of the constituency where he ordinary resides. In that instance Chief Gheti can be liable for prosecution for criminal offence and may be fined or imprisoned under Section 77. This option was not favoured by the Petitioner because penalty was provided for such action and there is no mention of invalidation of the election of which I accept.

	Has the first Respondent committed illegal practice:

53.	The illegal practice alleged that the first Respondent had colluded with Chief Gheti to encourage out of area registration as part of the concerted plan to elect him. There were three occasions which the Petitioner attempted to link the first Respondent to the outcome of what Chief Gheti had done. I have expounded succinctly the facts surrounding the three occasions, (1) that the first Respondent met Chief Gheti many times before the registration (2) that Chief Gheti attended the first Respondent’s campaign launching and (3) Chief Gheti displayed the first Respondent’s symbol on election day.

54.	From evidence gathered Pitukoli village where the first Respondent comes from is within CDC1 area, whilst Chief Gheti’s village is located beyond balasuna river within North East Guadalcanal Constituency. By human calculation the distance between the two villages is long way away. For the two men to collude requires evidence to proof, whether by physical consultation or by other means of communication provided by modern technology. In any event the law requires evidence to proof an allegation on the standard required and not just by assumption. With the evidence available I would able to conclude there was no link, collusion or collaboration between the two men.

55.	Also noted from evidence, that it was E. Pecha one of the Campaign Manager of the first Respondent who objected some of those who registered but were not ordinary resident of North Guadalcanal Constituency. Mr Pecha also objected Chief Gheti and his family for cross border registration. All his objections were rejected.

56.	Is that a reflection of the first Respondents indulgent by colluding with Chief Gheti for cross border registration and voting? Indeed it reflected the first Respondent was conscious of the law and what had been done ought to be remedied. What one of his Campaign Managers did was honourable to uphold the election process which must be free and fair.

57.	I also noted after reading paragraph 13 of the sworn statement of Chief Gheti that he organised a meeting and informed the people of the first Respondent’s plan. At paragraph 12 Chief Gheti stated that the plan was for North Guadalcanal Constituency for 4 years. There was nothing to do with North East Guadalcanal Constituency at all. Chief Gheti further talked about road maintenance which actually needed to be done. At paragraph 14 he did stated that they have two candidates to choose, the first Respondent and the Petitioner. My conclusion of what was said at the meeting did not assist the Petitioner at all. The message is clear, there is nothing to connect the first Respondent to that meeting, so as to allude that what Chief Gheti said to his people were directed by the first Respondent or linked to the first Respondents plans for North East Guadalcanal Constituency. I find there is nothing to proof the first Respondent indulged in illegal activities that would invalidate the election result as required by Section 66 (1) of the Act or that he involves in inducing or procuring voters to vote for him that will render him guilty of illegal practice under Section 77 (a) of the Act.

58.	In conclusion the allegation lay against the first Respondent and Chief Gheti cannot be sustained. Firstly, there is no evidence to proof Chief Gheti is an agent of the first Respondent, therefore Section 66 (1) cannot apply. The illegal activities he involved in were his own personal decision although connected with the election. The proper remedy is as alluded to by Section 55 of the Constitution, disqualification from voting and not invalidation of the election as Section 66 (1) of the Act requires.

59.	In relation to the first Respondent, there is no evidence at all to proof to my satisfaction that the first Respondent has indulged in or authorized any illegal activity, therefore cannot render invalidation of the election as required by Section 66 (1) of the Act.

60.	I must therefore dismiss the petition in its entirety with Costs.

	Orders:

	1.	The petition is hereby dismissed

	2.	The cost of the petition is to be paid to the first Respondent.

	3.	I hereby certify to His Excellency the Governor General that the election of Samson Maneka as member of Parliament for North Guadalcanal Constituency was valid and return.





	The Court.

High Court of Solomon Islands

Sopage v Maneka [2016] SBHC 132; HCSI-CC 435 of 2014 (12 August 2016)