Lilo v Tanangada [2017] SBHC 31; HCSI-CC 451 of 2014 (30 November 2017)

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IN THE MATTER OF: The National Parliament (Electoral Provisions) Act (Cap 87), the Election Petition Rules 1976 (LN Sol/1976) and Chapter 15 – 8 Electoral, SI Court (Civil Procedure) Rules 2007

AND IN THE MATTER OF: The National General Election for the Gizo/Kolombangara Constituency held on
19^th November, 2014

AND: ATTORNEY-GENERAL Second Respondent (Representing the Returning Officer for the Gizo/Kolombangara Constituency)

Dates of Hearing: 4^th December 2015, 7^th -11^th December 2015, 2^nd March 2016, 4^th March 2016, 7^th March 2016, 9^th March 2016, 11^th March 2016, 1^st July 2016, 4^th July - 6^th July 2016, 12^th -13^th July 2016 and 18^th July 2016, and 27^th
September 2017.

Mrs. N. Tongarutu for the Petitioner
Mr D. Marahare for the First Respondent
The Attorney-General was excused, no allegations against him

Faukona, PJ: This petition was filed by the Petitioner on 24^th December 2014. The petition is premised on a number of allegations of corruption and illegal practices in procuring the commission of the offences of bribery, treating and undue influence before and during the election on 19^th November 2014.

2.	On 19^th November 2014, Solomon Islands citizens went to the polls to elect new Parliament Members of the fifty (50) seats of National Parliament of Solomon Islands.

3.	In the Gizo/Kolombangara constituency, there were three candidates contesting the seat. They are the Petitioner, the first Respondent and another. The first Respondent polled 2145 votes whilst the Petitioner polled 1901 votes, a majority of 244 votes. The first Respondent was returned as a wining candidate and was declared being duly elected.

4.	This case is inordinately delayed until now because of the negative work attitude of the Counsels, in particular Counsel for the Petitioner, who failed to attend on a number of occasions and fail to comply with direction orders to move the case forward. This behavioural attitude is unacceptable and ought not to be repeated again.

	The Law:

5.	In brief Section 66 (1) of the National Parliament (Electoral Provisions) Act (NPEPA) disqualifies the validity of an election if corruption or illegal practices are committed, in connection therewith, by the candidate elected or his agent.

6.	Sections 71 and 72 of the Act, sets out various offences which may be committed by a candidate or agent in relation to bribery and treating. S.73 defines the offence of undue influence. And S.70 provides penalty for anyone found guilty of the offences of bribery, treating and undue influence.

7.	Those specific offences form the major integral part of, and termed as corrupt or illegal practices related to elections pursuant to S.66 of the Act.

8.	It has now been a familiar law accepted widely as precedence, in this country, that an election be rendered as invalid, should a winning candidate or his agent committed one act of corrupt practice, which has been proved, on the standard, in terms of bribery, treating or undue influence; the election must be held to be invalid.

9.	In upholding this law is the case of Fono V Fiulaua^[1] which His Lordship Goldsbrough J reinforced the point that section 66 (1) of the Act relates to specific actions of the candidate elect or his agent, and should not be affected by the qualification in S.66(2) that the corrupt or illegal practices or illegal payments, employments or hiring committed in reference to the election must have so extensively prevailed that they may be reasonably supposed to have affected the result.

10.	The ratio in that case was adopted by His Lordship Chetwynd J in the case of Aliki Ha’apio & Ors V Andrew Hanaria^[2].

11.	In this case the Petitioner alleges several occasions of bribery, treating and one incident of undue influence.

	Unsubstantiated allegations:

12.	I noted from Mr Marahare’s submissions that there are number of allegations which are not substantiated by evidence from the Petitioner. They can be dispose of with immediate effect, they are:-

	BBQ at Titiana village:

	(a).	It was alleged that on Sundays 9^th and 16^th November 2014, the first Respondent through his agents hosted BBQ for the voters at Titiana village, particularly women voters. The BBQ was intended to procure voter support for the first Respondent. There is no evidence by sworn statement to support any BBQ held at Titiana village on those dates. Mrs Naniseni denied hosting a BBQ with intention to procure voters. The BBQ they held was to raise funds for GELCA, a women’s organisation based in Gizo. There is no evidence to support this allegation.

		Accommodating Kukundu female students at Gizo:

	(b).	Another allegation was during campaigned period, the first Respondent arranged accommodation in Gizo for female students of Kukundu Adventist whilst waiting to cast their ballots on election day. On a regular basis the first Respondent treated the female students to alcohol beverages. Again there is no sworn statement at all to affirm and support the allegation.

		Allegation against Moffat Maeta:

	(c).	At page 3, paragraph (1) was an allegation against Moffat Maeta, SSEC Pastor, at Gizo, receiving one (1) water tank and $20,000.00 in order to influence SSEC Community at Gizo. There is no evidence by way of sworn statement to substantiate this allegation. Mr Maeta was called and gave evidence denied receiving a water tank and $20,000.00 from the first Respondent and I was convinced by that evidence.

		Bribing of Mr Kake Tokanabiri:

	(d).	Again is an allegation of bribing Kake Tokanabiri of Nusatupe, Gizo, that he received $10,000.00 from the first Respondent at Nusatupe Airport during Campaign period. The purpose was to procure voters for the first Respondent. Unfortunately there is no evidence by sworn statement filed to support this allegation. Mr Kake denied receiving the amount to procure voters.

13.	Those allegations are unsubstantiated. There was no money given to GELCA, only $100.00 donation. This was explained by Ms Nuatali, who looks after Women’s Resource Centre in Gizo. Ms Nuatali is the chairperson on the main board and who is working closely with GELCA. One of the functions of their activities is a saving scheme and at the same time mobilizing and campaigning for change in political leadership in Gizo/Kolombangara constituency. If the first Respondent or his campaigning team made donations by cash that should be given to zone groups after meetings and should be limited to three hundred dollars. Her evidence by sworn statement supported this arrangement. It would have been prudent if the Counsel for the Petitioner apply to withdrew those unsustainable allegations initially rather than permitting them to exist until final submissions. On the face per se, it is of no effect to consider them at all now.

	Bribery on Gizo Island:

14.	There are number of allegations on Gizo Island, whereby which the first Respondent allocated substantial sums of money to his campaign managers and agents, for the purpose of luring and procuring voters to vote for him. The system was referred to as the “network”. It was alleged the system was to operate by dishing out cash to registered voters who supported the opposition candidates. Family groupings were given $100.00 to $400.00, and individuals were given $100.00. A few examples of instances are identified below which will be dealt with accordingly.

	Bribing Mr Francis Steven at Gizo:

15.	It was alleged that on Friday 14^th November 2014, Mr Tapuia Katokeu of Titiana village dished out $200.00 to voters at Gizo town. He informed the recipients that the money was given to him by the firs Respondent to buy voters. Francis Steven was one of those who received $200.00.

16.	Evidence in support of this allegation was adduced by Joseph Sione. In fact Francis Steven was not called as a witness because he had not deposed any sworn statement. His excuse was that he was placed under intolerable pressure from the fist Respondent to change his story that the money given to him was not to lure him to vote for the first Respondent.

17.	Mr Topuia in his evidence, stated he was one of those who architecture the system of “networking”. And denied money was given to their groups by the first Respondent to buy voters. The money they received was from Mr Saepio, the Campaign Manager for the first Respondent, and was a subsidized donation of not more than $300.00 towards their mobilisation group. This indeed has some corroborative effect with Ms Nuatali’s evidence.

18.	Though the first Respondent conceded and attested to the “network” system set up by his supporters, it was a system of awareness to educate people about dirty and petty politics and not for luring and procuring voters by using money.

19.	He denied instructing Mr Topuia to dish out money to buy voters in Gizo town. If he had done so, he did it on his own peril, and is solely responsible for his actions which were contrary to his campaign strategies to promote free, fair and transparent elections.

20.	In any event Mr Topuia admitted in evidence giving $200.00 to Mr Francis Steven. The reason given was because he had assisted him with the “network” group, and not procuring his vote. With that admission, the hearsay evidence adduce in Court by Mr Sione indeed must bear some substance. The shortcoming, in terms of evidence in support of the allegation, is the failure by Mr Steven to file a sworn statement to clarify the purpose of the $200.00 given to him by Mr Topuia.

21.	Mr Topuia made it clear in his sworn statement that the money given was for his service assisting him in setting up the net work groups. In cross examination he further explained that Mr Steven had asked for that money to buy rice for his family.

22.	I noted the service was a voluntary one. And the payment was made four days before election date. In normal human thinking and reasoning, anyone engaged in voluntary work do not receive any wages or salary. What is important in the context of voluntary work is providing services. As a human, he needs to survive under whatever working circumstances. Receiving of $200.00 is absolutely for the work performed with an acceptable inclination to buying food for his family. I do not see any irregularity in giving the $200.00 to Mr Steven. There is no evidence to challenge whether Mr Steven was working with Mr Topuia to set up networking groups. On another note, was Mr Steven a proper person to be bribed when he was already engaged in setting up and mobilising groups to support the first Respondent? It is illogic to think and reason that way. I must decide this allegation must fail for lack of evidence to support.

	Bribing Mrs Maria Sione at Gizo:

23.	It was alleged that on 15^th November 2014, at Gizo town, an agent and campaign manager of the first Respondent, Mr Hugo/Vugo, gave $300.00 to Mrs Sione at the Gizo Hospital to lure her vote for the first Respondent.

24.	Evidence in support is by way of a sworn statement from Mrs Sione. Evidence revealed that she had two earlier meetings with Mr Hugo before the occasion at the Hospital. In fact Mrs Sione had met Mr Hugo three times that day. At the first meeting Mr Hugo asked her to vote for the first Respondent. At the second meeting he asked Mrs Sione for her ID card, instead she gave him her voter registration number. The third time they met was at the Hospital where he gave her $300.00. Is that bribery?

25.	Mr Hugo did not depose any sworn statement for some reasons known to him alone. However, Ms Nuatali gave evidence that Mrs Sione was so desperate for money to buy food for her family. So she assisted her to get money from Mr Hugo.

26.	The question is who is Mr Hugo? Ms Nuatali stated in evidence that Mr Hugo was a businessman of some standard and he owned a canteen next to where she worked. But she did not go further to disclose whether Mr Hugo was an agent or campaign Manager of the first Respondent.

27.	What remains unchallenged is the evidence by Mrs Sione that on the date in question Mr Hugo approached her and husband at Gizo market and uttered urging words to vote for the first Respondent. If he wins he will assist women in the Constituency. More valiantly he asked for voters ID card or voter registration number. That signifies the campaigner is a leading figure in the campaign strategy of the first Respondent. Further, the manner in which the $300.00 was given, by a secret hand shake was a reflection of a hidden agenda. There is no evidence available to rebut that.
28.	Mr Sione’s knowledge of Mr Hugo was a campaign manager for the first Respondent. That evidence was not rebutted by any evidence from the first Respondent. The best evidence would have been expected from Mr Hugo. Unfortunately, he was not caused to depose any sworn statement to negative the allegation, and subsequently call to be cross examined.

29.	A campaign manager in common knowledge is an agent of a candidate, who does represent and work for a candidate, in this case for the first Respondent.

30.	The very significant parts of the allegation against Mr Hugo are not rebutted. Mrs Sione may be confused, but she was firm to attest that she received two $300.00 on that same day. The $300.00 witnessed by Ms Nuatali was not in her sworn statement. Basically she relies on the $300.00 which Mr Hugo gave her by secret passing to her hand at Gizo Hospital.

31.	I am satisfied that Mr Hugo was a campaign manager or an agent of the first Respondent. An agent or campaign manager is someone who represents and works for a candidate campaigning. In this case Mr Hugo did as reveal by evidence. He did campaign for the first Respondent in an open location, not necessary in an open forum to people. By giving $300.00 to Mrs Sione in the manner he did was not rebutted, is actually vote buying. To progress further and asked for voter ID or voter registration number was an act of serious business dealing which can only be undertaken by a leader of a campaign strategy.

32.	I must therefore find the allegation against Mr Hugo, an agent of the first Respondent, exercising corrupt practice by voter buying (bribery), been proved on the balance of probability.

	Bribing families at Titiana Village, Gizo:

33.	The allegation premised on the fact that families at Titiana Village were given $200.00 to $400.00 to vote for the first Respondent. The only evidence that may prompt a hint is a sworn statement by Joseph Sione.

34.	In that sworn statement and his oral evidence in Court contain elements of hearsay. There is no specification as to who gave money to whom and at what location. How much was given, and on what date. Indeed his evidence is unreliable and do not substantiate the allegation at all. The allegation is not proved and must be dismissed.

	Allegation of bribing Mr Dei Sam in Gizo:

35.	In October 2014, a week before the election campaign was declared open, the first Respondent and his campaign Manager, Mr Donald Evo went to Mr Dei Sam’s home at Pailoge, and gave him $2,000.00. Mr Dei was told that the money was for Tanadao and Pitu family clans. There are 16 family units within those two clans with 80 voters. Each family was given $125.00. I noted the number of eligible voters in those two clans was disputed.

36.	The first Respondent denied being involved in that arrangement and seemed unaware of such gift.

37.	Mr Donald Evo or Donaldson Saepio stated that the first Respondent accompanied him to Pailoge village in the last week of September 2014. The purpose was for the first Respondent to confirm to Paelogi villagers his intention to contest in the November 2014 general elections.

38.	From Mr Evo’s evidence he did not deny giving $2,000.00 to Mr Dei Sam at his house. The money was specifically given to his four close aunties namely, Noi, Anne, Neita and Maga, and was from his own pocket.

39.	The argument advances by the Counsel for the first Respondent is that the evidence of Mr Dei was contradictory in relation to date and where the money was given. In my observation there is no contradiction in Mr Dei’s evidence. In paragraph 10 of Mr Evo’ sworn statement confirmed on the date of the occasion he went to Mr Dei’s house himself and that was where he gave the money to Mr Dei.

40.	The date and where the money was given are not so relevant to the circumstances of this allegation. The date could be the last week of September 2014 or in October 2014, suffice to say the months can be accepted as closely knitted together in a calendar year.

41.	Important fact is that the money was admitted to have been given by Mr Evo. It was given at the introductory stage of the campaign. Introducing oneself to contest in forthcoming national general election is the beginning of a campaign. The second important fact is whether Mr Evo was an agent of the first Respondent.

42.	Mr Donaldson Saepio (Mr Evo) himself deposed that as a forefront person led the first Respondent to Pailoge village to introduce himself as one of the contesting candidate. By that evidence alone had placed Mr Evo on a responsibility position. Inference can be drawn that he must be a chief campaigner or a chief agent of the first Respondent. The evidence of Mr Tapuia and Katokeu clearly expressed that Mr Evo assisted the net-work groups, upon request. Evidence reveal he gave $300.00 to each group as a donation towards mobilisation costs. Mr Katokeu further stated that Mr Saepio (Evo) is a member of the first Respondent’s campaign team.

43.	From that evidence I would able to deduce that Mr Saepio (Evo) was a leading figure in the first Respondent’s campaign team. He must be an agent of the first Respondent. What the First Respondent can do was done by Saepio (Evo). Whether that assistance was derived from his own pocket or from the financial pool of the first Respondent, the fact is that what the first Respondent could have done was done by Mr Saepio (Mr Evo). Therefore there can be no mistake that Mr Saepio (Evo) was a member of the first Respondent’s campaign team which can be rightly described as an agent.

44.	By the act of giving $2,000.00 to four relatives at the introductory stage of campaign, can that be perceived as bribery? Last week of October is not far from 19^th November 2014. In fact it was within the campaign period. Why should the money not given well before or after the elections. It does not change the situation if the act of giving to relatives was a common practice. If so then evidence must be clear. When was the last time Mr Saepio (Evo) gave valuables to his aunties and what was the amount or worth. There was no explanation given.

45.	It may have changed the situation if the $2,000.00 was shared among the four aunties directly by Mr Saepio. Why should it be given to Mr Dei to share it? One conclusion is that if Mr Saepio (Evo) handed money to each of his four aunties, there could be four different visits to their houses and people would have questioned the purpose of the visits. So it would be safer to give one whole amount to Mr Dei to share it. The entire visit was a planned one. The giving of $2,000.00 was planned one as well, so that no one will view and questioned it.

46.	The manner in which the money was shared is a point in dispute. Would it be said that Mr Dei had shared the money contrary to instructions. Whether the sharing was done in accordance with instructions or not, will not change any circumstances. The fact is that the money had been shared to 16 family units and they had accepted it. The question arises is where they been induced? There is no direct evidence to ascertain the swing. However, receiving $125.00 in a rural setting may have an impact on a mindset of a person. The amount may not be large enough, but it is sufficient to expect an act of reciprocate in return.

47.	S.66 (1) clearly states that corrupt or illegal practices are committed in connection with or by the candidate elected or his agent. I find Mr Saepio (Evo) is an agent of the first Respondent in this allegation.

48.	S.71 defines various acts of bribery. Subsection (c) forbids making any gift to any person in order to induce such person procure his vote is guilty of bribery. On the other hand subsection (f) states that any elector before or during election, by himself, or by any other person on his behalf receives money or gift for himself or for other person for voting or agreeing to vote shall be guilty as bribery.

49.	The law on bribery, in particular related to election is sharp on both ends. One single act of giving and receiving may tantamount to bribery. Whether words were said to procure or seduce does not matter. As soon as gift is made, even without a word, in particular by a campaign manager (known as agent) or a contesting candidate draws mass impact on the recipient, who by reasonable contemplation is expected to adopt the principle, “one good turn deserved another”. In my view gifts made related to election in the circumstance alluded to above tantamount to bribery and by law the giver and the recipients are guilty of it.

50.	In this case the allegation is against the agent of the first Respondent. By admitting the gift made prior to election was a gift made at the wrong time, therefore, was wrong and contrary to law. Ultimately I find there is evidence that proves on the balance that such gift can be viewed as bribe, hence must be a corrupt act.

	Bribery at New Rove Community:

51.	The allegation was by way of complaint by Mr Joshua Lui. As he deposed in his sworn statement that about one or two weeks before 2014 national election campaign, the first Respondent arrived at New Rove village to inform the community about his intention to contest as a candidate. There were about 15 people attended the meeting conducted by the first Respondent.

52.	After his speech which lasted about an hour, he handed over $500.00 to Rev. Zoti, Mr Joshua Lui Zoti’s brother. Mr Joshua Zoti who was also present when the first Respondent told Rev. Zoti that the $500.00 was for food after that gathering.

53.	Mr J. Zoti also deposed that day was the first appearance by the first Respondent in their community.

54.	In response the first Respondent deposed that the date of the meeting was 12^th September 2014. That meeting was coincided with the meeting of the trustees of the Leana bako people. He admitted that he gave $500.00 to Rev. Zoti to buy food purposely for the meeting of which will be held at West Gizo later and not for food after the meeting to bribe people.

55.	Apparently, the case was that, by 12^th September 2014, the people from Voruku village (or New Rove) had already known that the first Respondent would contest the Gizo/Kolombangara Parliament seat. The first Respondent averred in his sworn statement that the reason why he went to Voruku village was because he was invited by that community, an assertion which was denied by Mr J. Zoti.

56.	In any event, the money was admittedly been given though the date was contested. The significance is that it was given publicly at the time when people had already aware of the intention of the first Respondent to run for 2014 general elections.

57.	Sadly Rev. Zoti was not called to give evidence and not even deposed a sworn statement. His evidence would have affirmed what was the purpose for the money. Was it for food for the trustees of Leana bako people who will meet later, or for food after that meeting immediately?

58.	Eventually it was transpired there was no food bought or refreshment after meeting. Therefore it now materialised that the money was for food for the Leana bako people trustees’ meeting.

59.	Furthermore, why was the money given at that time when the first Respondent would affirm his intention to contest? There is no reason given, but such definitely given rise to suspicion. In any event should suspicion did exists, there is no evidence to affirm that the money was given to bribe 15 people who gathered at the meeting conducted by the first Respondent at Voruku village; the allegation must be dismissed for lack of evidence to support..

	Bribing one Joshua Lui:

60.	The allegation was that during the campaign period the first Respondent gave a substantial amount of money to Wilfred Zoti to assist him to revive his petrol depot in Gizo town. Wilfred Zoti was given money by the first Respondent as his agent as part of the net worked system. Out of this network money, he gave $300.00 to Joshua Lui and undisclosed to others.

61.	On the outset, it is easy to deal with undisclosed amounts of money given to others. Indeed there is no evidence to substantiate any amount of money given to anybody or others. No actual figures was supplied, and to whom the monies were given were not disclosed; the dates those monies were given were not stated. Such allegation cannot sustain and must be dismissed accordingly.

62.	In respect to money given to Mr Wilfred Zoti to revive his depot at Gizo. Mr W. Zoti actually denied receiving funds from the first Respondent to revive his petrol depot. The first Respondent also denied giving any money to Mr W Zoti for his petro depot. He was only aware of the funds set aside to cater for transport expenses to enable elderly people travel to polling booths on election day.

63.	In the final analysis there is no evidence of a definite amount given, and no evidence who gave the money, no evidence when was the money given. It was a mere allegation without proof. That allegation must be dismissed as well.

64.	In returning to $300.00 given to Mr Joshua Zoti, Mr Wilfred Zoti agrees he gave the money to his elder brother Mr Joshua Zoti. The reason according to his own sworn statement was for him to mobilise those in the village to meet and discuss who they should vote for. Undoubtedly, the money was given by the first Respondent through his campaign manager Mr Wilfred’s net-work group. As a campaign manager Mr Wilfred Zoti exactly used the money given to him.

65.	In his oral evidence Mr Joshua Zoti explained his reason for deposing a sworn statement was because he had supported the Petitioner; and his brother Mr Wilfred Zoti would have known. By giving $300.00, in my view was purposely to induce Mr Joshua Zoti to divert his support and to influence other villagers to change support and voted for the first Respondent. And it is not for mobilisation to vote someone of their choice.

66.	Logically, any mobilisation by Mr. Joshu Lui cannot be for a candidate outside of his choice. Neither would he change allegiance because of the money syndrome paid to him by the Campaign Manager (agent) of the first Respondent. The simple underlying reason was to divert support and vote the person whom the source of money derived from. In my view, an element of bribery was present under the circumstance of giving.
67.	The law is clear in S. 66 of the National Parliament (Electoral Provincial) Act which states that corrupt or illegal practice is committed in connection to election by the candidate elected or his agent. A campaign manager is an agent of a candidate contested for a seat in a national general election.

68.	I find the $300.00 given to Mr. Joshua Zoti was to convince him with expectation to convince others voted for the first Respondent. The money was sourced from the first Respondents financial pool to assist in the net- work strategy. Mr Wilfred Zoti being the Chairman of 10 net-work groups did in fact received undisclosed amount of money from the first Respondent’s campaign Team. Part of that was used in this circumstance.

69.	In Mr Joshu Zoti’s own reason, the money he received was purposely to buy voters. Whether that is practically true or not, however, the intention is quite clear.
70.	What I could able to draw is that the act of giving $300.00 to Joshua Zoti, an elder and influential person, contain element of bribery to induce him to influence others voted for the first Respondent. I find the gift is an act of bribe which upon the evidence available is proved on the balance of probability.

	Bribing Hekarua Community at Gizo Island:

71.	The allegation here is premised on the facts that before the campaign period was officially opened, the first Respondent gave the sum of $2,000.00 to Hakarua village Community. The Petitioner relies on the sworn statement by Mr Joshua Lui deposed on 26^th March 2015.

72.	On the other hand, Albert Kuper deposed in his sworn statement that he was one of the elders of Hakarua Community. He admitted their Community had received $2,000.00 from the first Respondent not to procure voters, but to hire their Community hall which the first Respondent and his team were accommodated for four nights whilst on their campaign trail in the Western side of Gizo Island.

73.	He further stated that the Community had consultations and had agreed with the first Respondents campaign team that a charge of $500.00 per night was proposed. For four nights the cost would be $2,000.00. The first Respondent and team had agreed to the rate. The payment of $2,000.00 was a part payment for the use and accommodation in the hall. In fact the first Respondent and team had used the hall for more than four nights.

74.	In support of Mr Kuper’s evidence, is the evidence of first Respondent himself? He agreed he gave $2,000.00 to the Hakarua Community for the use of the Community hall. The money was not given to procure voters but for a good purpose.

75.	Having closely assessing and verifying the truth, I am satisfied that the evidence given by Mr Kuper and the first Respondent is credible. The $2000-00 given was for good purpose and not to procure voters. This allegation is not proved on the balance hence must be dismissed accordingly.

	Allegation of bribery on Kolombangara Island:
	Bribing Peter Nato by giving him $500.00:

76.	To substantiate this allegation the Petition relies on the sworn statements of Mr Rigiley Jack and Mr Adaol Lave.

77.	As far as this allegation is concerned, the sworn statement filed by Mr Rigiley jack who attempted to proof the allegation stated that on 21^st November 2014 Mr Nato told his wife in the presence of two other persons at John’s house at Tanahuke Village, that the first Respondent gave him $500.00 during the election campaign, on a date between October and November 2014. The other women, who were said to have been present at the time of giving, did not file any sworn statement either to affirm the truth.

78.	To affirm the giving, Mr Rigiley approached Mr Nato and asked him. Mr Nato confirmed he received $500.00 from the first Respondent.

79.	Mr Nato who deposed a sworn statement in support of the first Respondent’s case denies receiving $500.00 from the first Respondent prior to the election. He also denies making any admission to anyone even to two persons Mr Rigiley asserted. He also denies using the money to pay for his child’s school fees. Further, he denies admitting receiving the money to Mr Casper and Mr Dick when they met at Gizo.

80.	The first Respondent denies giving $500.00 to Peter Nato during election campaign period.

81.	The evidence adduced by Mr Rigiley in support of this allegation was hearsay. Initially he was trying to persuade the court to belief what others told him. To proof the truth he approached Mr Nato and asked. Unfortunately Mr Nato who was alleged to have received the money denies it and so is the first Respondent. On the balance Mr Rigiley’s evidence cannot be relied on as credible, hence the allegation is not proof to the standard. Two witnesses for the Respondent clearly deny any $500.00 given to Mr Nato at all, and I belief them. The allegation is not proved hence must be dismissed.

	Bribing Walter Lave by giving him $200.00:

82.	It was alleged with no dates mention, during campaign period, the first Respondent gave $200.00 to Mr Walter Lave. Mr Walter did not depose any sworn statement to that effect. However, his son Adaol Lave had attempted to assist by filing a sworn statement. Mr A. Lave affirmed that the money was given to his father on an unknown date. It would seem the money was given at Engarano village, Patupaele, Kolombangara.

83.	The first Respondent in his sworn statement denied or was not aware of meeting Mr. Walter Lave and gave him the money during his campaign trip. He deposed that it was Mr Lave’s wife who consulted his wife at Kukundu College and asked for money for food for her sick grandchild. He further reiterated that Mr Lave’s wife is a relative of his wife and that his family had assisted Mr Lave’s family since they started teaching at Kukundu Adventist College. During cross examination, the first Respondent admitted he met Mr Walter Lave in his house at his village and gave him $200.00.

84.	The evidence by the first Respondent is quite contradictory; maybe he was referring to an incident well before he decided to contest in the elections. It is also different from what Mr. Philmon stated in evidence. Mr Philmon was one of the two persons accompanied the first Respondent that day. He said they arrived at Lave’s village on 16^th March 2014 to deliver some petrol to the Respondent’s first cousin Mr Ladota who is the brother in law of Mr A. Lave. The fuel was requested to assist him travel to Vanga Polling Station to be registered as voter. Before they left the first Respondent gave $200.00 to Mr Walter Lave as a token for his hospitality. In fact the purpose for the gift was not mentioned by the first Respondent in his sworn statement, but he did during cross examinations.

85.	In any event, I accept the first Respondent had given $200.00 to Mr Walter Lave as a gesture on humanitarian basis. Mr Lave was an old and a sick person according to the first Respondent. Retrospectively, it is a simple question, whether he gave or not. That should not be forgotten in any sworn statement. Why the first Respondent had failed to include in his sworn statement and only admitted on cross examination cannot be comprehended.

86.	It would have been strong and credible evidence if Mr Walter has deposed a sworn statement. It appears the conversation on that day was basically between Mr Walter Lave and the first Respondent.

87.	A simple rule of evidence demanded that direct evidence carries a high degree of truth than hearsay evidence. Instantly part of Mr Adaol Lave’s sworn statement is hearsay. There is no evidence he was present at that time the first Respondent gave the money to his father. Hence could not hear the content of their conversations either.

88.	There is no doubt the first Respondent had admitted given $200.00 to Mr Walter Lave. The purpose of giving will not be justifiable had it been given during campaign period. Hence timing is important in this instance.

89.	Mr Adaol Lave stated the money was given during campaign period. The first Respondent said nothing about the date. However Mr Philemon who accompanied the first Respondent that day said they went to Mr Walter Lave’s village on Sunday 16^th March 2014 to deliver petrol requested by Mr Ladota. That was when $200.00 was given. Thereafter they had never returned to that village again. The same was affirmed by Mr Sautahi who attested that the first Respondent did not visit them during campaign period.

90.	Another important consideration is that if Mr Walter Lave’s family and the first Respondent’s family are close and there had been gifts reciprocated in the past, then why Mr Walter pursued and prosecuted this allegation in Court. Is he seeking justice which takes precedent over past relationship, relative and vice-verse support? Or is the first Respondent and his witnesses are not telling the truth?

91.	In the final analysis Mr Philemon was quite stirn about the date they arrived at Mr Walter’s village. Mr Adaol seems uncertain about the date. He merely stated the first Respondent went to their village during campaign period. Had he so certain about the date the approach would have been different. Meanwhile I shall reject Mr Adaol’s evidence and adjudged the allegation is not proved on the balance of probability, hence must be dismissed.

	Bribe by giving of a sewing machine to Mrs Lave:

92.	Again the evidence the Petitioner relies on to proof the giving is from Mr Adaol Lave. In his sworn statement he stated that the first Respondent had given a hand sewing machine to his mother. There was no mention of the date of giving, and who actually gave the machine and where.

93.	According to Mr Ladota’s sworn statement he was the one who conveyed request for the machine for his mother-in-Law who is Mr Adaol’s mother. The sewing machine was given by the first Respondent in early May 2014. I would rather rely on Mr Ladota’s sworn statement. His evidence is more credible and exact as compared to Mr Adaol’s evidence. Mr Ladota do not hesitate to reveal he was the man behind the giving and able to convince the first Respondent for his assistance towards their family. I must dismiss this allegation as there is no evidence to substantiate it.

	Bribe by giving Sewing machine to Mrs Tareni Joel:

94.	The evidence in support of this allegation is by Mr Adaol Lave’s sworn statement. He stated that Mrs Tareni Joel from neighbouring village of Qolezavana told him and others that the first Respondent had given a hand sewing machine to her and members of her family. However, he had failed to state when was the machine given, by whom and where about. In fact he was attempting to convince the Court to belief what Mrs Tareni told them. It could have been credible supporting evidence if Mrs Tareni Joel had deposed a sworn statement. In this case she did not.

95.	Mrs Tareni Joel was the wife of Mr Joel Sautahi. Mr Sautahi had deposed a sworn statement that his wife (Mrs Tareni) is related to the first Respondent’s wife. The sewing machine given was upon his request around January 2014. And he collected it on 10^th May 2014.

96.	Again the gift was made premise on family ties and intimate relationship. The relevant fact was that it was made well in advance before election. I accept the fact the circumstances including the motive and timing as opposed to in November was genuine and there was nothing sinister about it. There is no evidence to proof bribery or illegal act hence the allegation must be dismissed accordingly.

	Allegation of treating at Vanga Rural Training Centre Kolombangara:

97.	The allegation of treating at Vanga RTC was supported by the sworn statements of Mr Bradly Turavolo and the sworn statement of the late Nelma Vave. The content of the allegation is that on Tuesday afternoon 18^th November 2014, a 3 ton vehicle owned by Mr. Sutcliffe delivered food stuff comprised of rice, cartons of taiyo, cartons of noodles, cartons of biscuit and one bale sugar at Mr Russell Kidava’s house at Vang RTC.

98.	Mr Texly Horowai denied seeing any vehicle unloading goods at Vanga RTC on 18^th November 2014. However, Mr Russell admitted that those goods were delivered at his house on an unknown date.

99.	Mr Russell specifically identified the goods delivered as 2 bag rice, 1 carton Solomon blue, 2 carton navy biscuits, 2 cartons of noodles and one bale sugar.

100.	That food stuff according to Mr Russell were delivered by Mr George Sutcliff’s son namely Mr Brais. Mr. George Sutcliff is closely related to the first Respondent. And his son Mr Brais was a strong supporter of the first Respondent. He further stated that the goods were purchased from funds pooled together by the supporters of the First Respondent. Undoubtedly Mr Russell was well versed with the source from which the goods were bought. And the goods supplied were based on the request by the remaining students because the semester had come to an end and they were still around awaiting graduation. They were not for the purpose of convincing the students to vote for the first Respondent.

101.	Mr Horowai, as one of the students affirmed the scaling down of academic activities of the School and also stated that food stuff was delivered according to remaining students request through the campaign managers of respective candidates.

102.	Eventually, the campaign manager of the first Respondent responded positively. The goods were then delivered to the resident of Mr Russell who was the supporter of the first Respondent. Were the food stuff intended to provide physical appetite to the students only, or was it also meant to restore hunger, in particular those who will vote for the first Respondent as well? The motive may seem shady but Mr Russell had stated that his house adopted an open door policy. It could mean feeding anyone.

103.	With a home adopting an open door policy, and endowed by the fact that Mr Russell was a strong supporter of the first Respondent, it could mean the food was intended to provide sustenance to those who voted the first Respondent. There is no guarantee that supporters of other candidates will access Mr Russell’s house.

104.	There is evidence that the money used to purchase the goods did not come from the first Respondent’s pocket but from funds pooled together by the supporters.

105.	In this case a particular named supporter (Mr Brais) supplied the goods. If Mr Brais was a supporter then that affirms the notion conveyed by Mr Horowai that their request was made to campaign managers, and at last a campaign manager responded and it happened to be a supporter of the first Respondent.

106.	S.66 (1) of National (Election Provision) Act stated clearly, that on independent act by an agent of a candidate, where proved, committed bribery or illegal act connected to election. The court having satisfied that the allegation is proved, on the balance of probability, hence order election null and void. The notion in law is that as an agent he is working for a candidate. A campaign manager is working for a candidate, hence is definitely an agent.

107.	The pivotal point here is that request was made to campaigning manager of the first Respondent. They responded positively. Though no campaign message is attached or said when delivering the goods, the campaign message is clear, “one good turn deserves another”.

108.	Therefore, allegation of giving of food stuff raised by this point is proved on the balance, and the giving of food stuff to remaining students whilst election day is few days away is illegal. On the other hand, Mr Russell had admitted that he had an open house policy. Anyone can go in and help himself particularly supporters either to reaffirm support or to lure others to support. Of course Mr Russell won’t allow supporters of other candidates. I doubt there was feasting in Mr Russell’s house. Therefore I find this allegation has been proved and must be allowed.

	Allegation of Bribery at Vanga Training Centre, Kolombangara:
109.	There were three occasions alleging that the first Respondent had given monies to students of Vanga Training Centre.

110.	The first allegation is that in September 2014 the first Respondent visited Vanga RTC to meet with the students and informed them of his intention to contest the 2014 national General Election. At that meeting he gave each student $50.00 and $100.00 and asked them to vote for him.

111.	The late Nelma Vave’s sworn statement stated that the first Respondent gave the students $50.00 and $100.00 before he left the school. None of those students who received the money deposed any sworn statement. Nelma’s evidence is a more of hearsay. She was trying to convince the Court to believe what the students had told her. Could have been credible evidence if one of the concern students gave a sworn statement corroborated to Nelma’s. There was none. Therefore her evidence cannot stand alone, it is hearsay in the circumstances.

112.	The first Respondent in his sworn statement denied visiting the school in September 2014, but in May 2014. That visit was purposely to inform of his intention to contest in the elections. He also denied giving $50.00 or $100.00 to any student bribing then to vote for him.

113.	The allegation, as it appears, is not supported by any credible evidence. In fact it is not substantiated therefore must be dismissed.

	Allegation of bribing 10 students from Vanga RTC:

114.	The allegation was, on 19^th November 2014, 10 Vanga RTC students on holiday at Gizo, under direction of the first Respondent, were transported to Vanga RTC to cast their votes for him. They were given $100.00 each before they boarded the canoe for Vanga.

115.	In support of the allegation, Mr Turavolo deposed in his sworn statement that after voting, the 10 boys went to his house to buy smokes. He was surprised to see them buy with $100.00 notes. From their discussions it appeared the money was given to them by the first Respondent.

116.	Mr. Turavolo further deposed that a particular student told him that 10 students came to Vanga from Gizo to vote for the first Respondent who gave them money before they left Gizo.

117.	The only part of the evidence that may have linked to the giving of the money was when Mr Turavolo saw them buy smokes with $100.00 notes. However, he failed to see who actually gave the money, where about in Gizo and how much. Mr Turavolo was attempting to convince the Court to belief what that particular student told him. That student had never deposed a sworn statement, hence, left Mr Turavole’s evidence hearsay.

118.	The allegation was indeed a story derived from a particular circumstance. It requires credible evidence to support: one which could have substantiated the allegation to a level of acceptance. That evidence could have been deposed by one of the students. The first Respondent denied dishing out $100.00 to the students at Gizo. He was at Kukudu on the election day. It could have been one of his team: whoever must be named.

119.	In any course the allegation is not substantiated and proved to the civil balance, therefore I must be dismissed.

	Allegation of promised money to 8 female students:

120.	The allegation seemed to refer to an occasion at Vanga RTC where 8 students attended to Mr Russell’s house to pursue cash payments promised by the first Respondent. This was said to have occurred on 21^st and 22^nd November 2014 after the elections. The money was promised to the girls and should be collected from Mr Russell.

121.	The evidence supporting the allegation was of Mr Turavolo’s sworn statement deposed in paragraph 7. The paragraph is the only evidence that supports this allegation. The first Respondent denies promising any money to the students payable to them if they voted him.

122.	This is another allegation which Mr Turavolo alleged to have seen 8 female students outside of Mr Russell’s house to collect their money.

123.	Mr Russell also denies the allegation and was not aware of any payment even took place.

124.	None of the girls deposed any sworn statement to verify the truth. Seeing them in front of Mr Russel’s house did not mean the allegation of receiving the money was true. There must evidence that Mr Russell got the money and he did give to each of the girls. The only credible evidence could come from the girls. None of them deposed any sworn statement and the first Respondent and Mr Russel had denied giving any money to them. Therefore the allegation is not proved on the balance of probability and therefore must be dismissed.

	Allegation of promised money to Vanga RTC staff:

125.	This allegation contains promised money payable to some staff members of the school. Evidence in support suggested that those staff were talking about waiting for Mr Russell to collect their money which the first Respondent had left with him. They were promised after the election they would collect their money.

126.	The sworn statement of the late Mrs Nelma Vave supported the allegation because of what she heard, this requires further proof. There must be evidence that the promise was made. Secondly there must be actual money placed with Mr Russell. Thirdly there must be evidence in the act of giving of the money promised. In this case evidence from a concern staff ought to have been taken to affirm the fulfilment of the promise and whether there was actual money received. In the current case, there is no evidence that money was actually given, and how much each staff received. In the light of difficult circumstances to proof, I must dismiss the allegation forthwith

	Conspiracy to delay Petitioner’s voters:

127.	It was alleged that the first Respondent had conspired with other opponents of the Petitioner to delay arrival of M. V Maetalau from Honiara which carried 300 voters of the Petitioner who were registered to vote at Gizo and Kolombangara. In delaying the arrival of the vessel the voters were not able to cast their votes, thus deprived the Petitioner of their votes. The first Respondent denies involved in any conspiracy as alleged.

128.	The allegation of conspiracy requires more than one person to indulge in planning and execution of the conspiracy. In this case there is no other person named apart from the first Respondent conspiring to delay arrival of the vessel. There is no evidence either naming anyone else conspiring with the first Respondent to delay the arrival of the boat. As such it is a mere story, a pack of rumours which hold no proof. I must dismiss this allegation as having no evidence to substantiate.

	Conclusion:

129.	There are about nineteen (19) allegations of bribery including promises, treating and one act of undue influence against the first Respondent.

130.	In almost all cases of bribery, money was involved by cross transaction (as gift) to individuals, some to family members and others to community.

131.	The giver in all occasions of allegations was done either by the first Respondent or his campaign managers or agents. In the current case the word “agent” was not used or familiar with, but seemed to be substituted by the words “campaign managers”. Both are two different English words, which in my view, can be used interchangeably so far as election circumstances are concerned. In an ordinary linguistic meaning of the words, it is someone who represents and works for another.

132.	A good number of gifts are arguably made to relatives, some on request, and some as a token of good will. The source from which those gifts derived were from personal pockets and others from allocations made to each network groups, in the case of Gizo Island.

133.	Quite a good number of gifts were admitted and out of them all I find four contained elements of bribery and treating which are illegal activities.

134.	Amazingly, the act of offering gifts could have been a predominant approach and activity in the Constituency. The allegations that were entranced in this petition are probably a tip of an iceberg. There could have been more should people acknowledge the responsibility in reporting, and allow the judicial process to take its course. Subjective to law is the only susceptible process to test whether the election is free and fair and no illegal activities to jeopardise the democratic process. It is a legal obligation on everyone to uphold the notion and accept the principle with humility. Only then the election can be described as free and fair.

135.	The introduction of “network” group campaign strategy is a kind of effective and workable skeleton in mobilisation and conveying message to the constituents. The message is premised on the verbatim that there is a need for a change in political leadership. The core function of those network groups was accented to by the first Respondent. However, one factor that may demoralise the strategy is when leaders attempted to give cash to the people to lure and procure them, which likely may tantamount to illegal activity. Whether campaign words were uttered at the time of giving or not, in my view, does not change the circumstances. The receiver may have no liberty to make a choice but to reciprocate by the principle “one good turn deserves another”.

136.	This judgment is one that is aimed at deterring prospective candidates for future national general elections. The act of giving and promising to give money, valuables and food stuff to voters before and during election is an offence under the law. Whether the gifts were requested or given to relatives as a token, the fact that they were made before election (during campaign), or during election is still contrary to law. Election commentators from outside looking in will definitely have an impression that the election was not free and fair.

137.	Whether campaign words were traversed at the time of giving or not, does not matter; and whether the receiver actually voted for the giver is not an issue as well. It is a breach of the law where there is a gift and the gift is accepted. It is not necessary that a gift must be from the winning candidate, a gift from an agent or campaign manager of a candidate also contributes to unlawfulness.

138.	With four allegations proved by evidence is sufficient to turn the result of the election and render the election of Mr Tanagada null and void. I hereby concluded by determining that the election of Mr Jimson Fiau Tanagada as Parliament Member for Gizo/Kolombangara Constituency is null and void and return therefore accordingly.

	Orders:

	1.	That election of Mr Jimson Fiau Tanagada as a Member of Parliament for Gizo/Kolombangara is hereby declared as null and void.

	2.	The Governor General will be informed of this Judgment.
	3.	Should there be a bye election before the next national general election; the first Respondent is not entitled to contest.
	3.	Cost of this election petition is payable to the Petitioner.




	The Court.

High Court of Solomon Islands

Lilo v Tanangada [2017] SBHC 31; HCSI-CC 451 of 2014 (30 November 2017)