Maegwali v Abana [2017] SBHC 59; HCSI-CC 453 of 2014 (3 August 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 453 of 2014

BETWEEN: SEVERINO MAEGWALI - 1^st Petitioner

AND: STEVE WILLIAM ABANA - 1^st Respondent

AND: ATTORNEY GENERAL - 2^nd Respondent
(for Returning Officer East Fataleka
Constituency)

Date of Ruling: 3^rd August 2017

50. Kwana for Petitioner

J. Muria for 1^st Respondent
C. Hapa for 2^nd Respondent

JUDGMENT

Maina PJ:

Introduction

The Court is asked to declaration the election is void or the First Respondent not duly elected as the MP for Fataleka on the circumstances surrounding the Ballot Box for Faurau Polling Station when it was transported to Auki for counting of the ballot papers and the Kit Box for that Polling Station was missing.

The Petitioner was a candidate for Fataleka Constituency during the National Elections held on 19 November 2014. And First Respondent was the successful candidate and was returned and elected as the member for Fataleka Constituency and the Petitioner came second.

By the Petition (as amended) filed on the 5^th February 2015, the Petitioner alleges that the First Respondent’s returned or elected as MP for Fataleka Constituency is seriously questionable on the fact or given the circumstances surrounding the Ballot Box for Faurau Polling Station was allegedly damaged and the Kit Box for that Polling Station was missing.

Issues

There is no dispute on the incident with or disturbance of the box and missing kit box and the issues as agreed by the counsel of the parties are:

1. Whether the circumstances surrounding the damaged and Box missing the Kit should render the result of the 2014 election the Fataleka Constituency void.
   
2. Whether counting the Faurau ballot papers without the stolen or missing kit box should render the result of the 2014 election the Fataleka Constituency void?
   
3. Whether the no-declaration of First Respondent by the Second Respondent on 22^nd November 2014 to be elected candidate when the election result was ascertained pursuant to subsection 55 (1) of the National Parliament Electoral Provision Act
   

Backgrounds

The Petitioner was among the 13 candidates who contested the National Elections held on 19 November 2014 for Fataleka Constituency. The Constituency has 16 polling stations covering East and West Fataleka and one of the Polling Stations was at Faurau village (Faurau Polling Station)

The circumstances surrounding the incident with Faurau ballot box and Missing Kit box are set out in a sworn statement of Pio Abana filed on 29^th July 2015. Basically he described what had happened on 20^th November 2014 when the election officials transported the ballot boxes on a vehicle to Auki Town.

At Atori wharf after unloading the ballot boxes from the boat to a vehicle, one Ian Rofeta (the presiding officer for Feranagono (Ambe)) took the Ballot Box for Faurau Polling Station from the vehicle and got away with it along the road towards Auki direction. He talked and swore at anyone who may attempt to stop him as mother fuckers. As he was doing this he drew or took out a knife.

He ran off with the ballot box but was chased and along the road he threw the ballot box to an on running Hilux vehicle. The election officials retrieved the ballot box and brought it to Auki.

Also when the officials were picking up the ballot boxes and election materials, an election kit box that was used at Faurau Polling station was taken by two armed men with axes. They took off with it when the election officials were collecting the ballots boxes from the canoes and paying allowances for presiding officers and assistant presiding officers. The election officials were not able to retrieve it.

The incidents were reported to Police Auki for investigation for any criminal offences. At the trial of this no progress or outcome of the Police investigation were made available to the court.

Issues 1 and 2

The issues with the ballot box and missing kit box were addressed together in the submission by the petitioner and so I deal with them together in this judgment.

The Petitioner submitted that when the ballot box was damaged it was broken, all the ballot papers fell out and scattered on the road. The vehicle drove on them and sustains damages on few ballot papers.

Petitioner relies on the sworn statement of Mr. Presiding Officer for Abira Polling Station, Mr. Nathan Luiramo who said that he collected the damaged ballot box after it was ran over by the vehicle and ballot papers were damaged and torn apart. He said that he threw some to the nearby bush.

The Kit box was stolen or missing and the Petitioner contended that the Ballot Box for Faurau Polling Station should not be counted by all means as the ballot papers contained in that box could not be verified. And it was so because the important verification means and measures had gone missing with Kit box.

The Petitioner further submitted that since there was no way that could be used to verify the ballot papers, the official marks as used on the ballot papers could not be believed to be the true official marks. He said it should be treated that the Faurau ballot papers bears no official marks. The fact the ballot box was damaged also raises questions on the ballot paper’s secrecy or was exposed and some papers may have been damaged.

With this, the petitioner submitted the Return of the First Respondent as an Elected MP for Fataleka Constituency on 23^rd November 2014 was based on the counting of votes that should not be counted. Therefore the election of the First Respondent should be declared void.

The parties accepted that Faurau Ballot Box was slung on the road to a moving vehicle but it was picked up again and was brought to Auki. On that incident the petitioner said the ballot box was thrown and ran over by a vehicle.

During the counting of the ballot papers at Auki, the Returning officer decided to count the papers from Faurau Ballot Box. It was counted and the ballot papers was tallied and or included in the result for Fataleka Constituency.
Counting details is set out in the sworn statement of Returning Officer Sam Baega filed on 21^st May 2015. The Kit box contains the records, counter foils and general stationeries used during the Polling Day by each Polling Station and the missing kit box is in relation to Faurau Polling Station.

For the Faurau Polling station, a total of 700 ballot papers was issued to the presiding officer and 562 ballot papers was casted. Out of the ballot papers used, two (2) were spoilt ballot papers and so 560 ballot papers were casted, counted and tallied in the result and are shown in the Form 21, exhibited as “SB 1”. At the counting on 22^nd November 2014, there were 13 persons present and included Police officer. They signed a paper as witnesses and exhibited as “SB 2”

At the close of the count this particular Faurau Polling Station Box was placed in a 50 kg bags, tied with rope to seal the mouth of the bag. They consist of the box together with the 50kg bag that was allegedly thrown to the oncoming vehicle.

The Petition was based on the evidence of Nathan Luiramo when he said the ballot box was ran over by an on running vehicle, the ballot papers were damaged and some were thrown to the nearby bush.

The Court was shown the appearance of the box and it was in pieces. I take judicial notice at the closed of polling stations, the ballot boxes were placed in the bag and sealed. And further the election officials opened or disturbed the appearance of that with any damage or disturbance at the counting of the ballot papers in the Faurau Ballot Box.

The Ballot Box for Faurau Polling Station was brought to Auki and that fact was not disputed but only that it was disturbed appears to be the concern of the Petitioner. And so the question should be on the contents (ballot papers) in the box which should be enquired or queried to by the court if they were the ballot papers casted at the Faurau Polling Station. It is so on the fact that ballot papers were in the box and if they were disturbed or had discrepancies on them.

And the simple question to ask is “whether the ballot papers in question were ballot papers casted by the voters at the Faurau Polling Station and bear the ballot paper requirements i.e. the official marks etc.

The Petitioner to show by evidence to the court however this is not done except to say that:

1. The ballot box was damaged by a running vehicle when it was thrown over during the transportation of the boxes to Auki Town for counting of the ballot papers.
   
2. The ballot papers cannot be verified as the kit box was missing or stolen.

What can be drawn from the facts is basically the unease of the Petitioner to the ballot box when he said it was thrown to moving vehicle sustains damage with the circumstances of the missing kit box. But the petitioner do not produce any evidence that as result of the alleged damage ballot papers were also damaged and did not appear as ballot papers or did not bear the requirement for ballot papers not even to suggest the ballot papers were not from Faurau Ballot Box or ballot papers to be rejected ballot papers. It is just an assumption on part of the Petitioner for the box and ballot papers.

The counting agent for the Petitioner left the counting room when the Faurau Ballot box was about to be counted. And such a voluntary absence of the counting agent simply means that he was not able to verify the prerequisite for the purpose of section 50 (a) and (b) of the Act. That situation made the remaining election officials and other counting agents to undertake the task. Thus in the entire, the petitioner is not able to explain or describe the extent of any damages he is allegation to the box and content (i.e. Ballot papers) but just to say the ballot box was ran over by the vehicle.

This is the situation and such to my view does not breach of the provisions in the National Parliament Electoral Provisions Act in particular the provision of sections 52 and 53 of the Act i.e. want of official mark, writing or mark by which the elector could be identified and to review the Returning Officer's decision to count or included the ballot papers from the Faurau Ballot Box.

The onus is on the Petitioner to establish that the counting the Faurau ballot papers which were contained in the ballot box and missing kit box affects the election for Fataleka Constituency but so far he has not done so on the balance of probability or to my satisfaction.

I find the circumstances surrounding the disturbance of the Faurau ballot box with ballot papers and the missing kit box did not invalidate the election.

Issue 3

This issue relates to the no-declaration of First Respondent by the Second Respondent to be elected candidate when the election result was ascertained at the counting room for the Fataleka Constituency. He alleged that First Respondent was no declared in pursuant to subsection 55 (1) of the National Parliament Electoral Provision Act.
Section 55 read:

“55.—(1) When the result of the election has been ascertained, the Returning Officer shall forthwith declare to be elected the candidate for whom the majority of votes has been cast, and such declaration shall be made in the following terms—

"I hereby declare that is elected".

(2) The number of votes cast for each candidate shall not be finalised by the Returning Officer when he makes the declaration referred to in subsection (1)”.

In the submission, the Counsel for the Petitioner said that this section 55 (1) of the Act is mandatory and procedural. The fact that First Respondent was not declared to be elected when the result was ascertained on 22^nd November 2014 breaches a mandatory requirement.

On that basis or as a consequences it would be an error for the Governor General to exercise his powers under section 57 of the Act by publicly announcing that First Respondent was an elected MP for Fataleka on 23^rd November 2014 and also an error for the GG to publish the Returned of the First Respondent as such in Gazzette No 124 dated 26^th November 2016. On that basis the Petitioner submits that the Returned of the First Respondent as an elected MP for Fataleka on or about 33 November2014 was therefore void.

The Returning Officer Mr Sam Baega by oral evidence gave an account to the situation of counting room. When it reached the ballot box of Faurau Polling station (which was the final box) it was very tense. There were threats and swear words to the election officials and the election officials were escorted out by Police office from the Rapid Unit armed with guns. That prevailing circumstance at that time was difficult to declare the election of the First respondent in the normal way.
From what had happened with transporting of the Faurau Ballot box to Auki, the boycott or walk out of the Petitioner’s counting agent from the counting room and the evidence by the Returning Officer it can be stated or settled that the counting of the ballot papers for this constituency was strained and unease for the election officials.

The grounds contained in the Petition filed on 20^th December 2014, the petition (as amended) is on the decision of the Second Defendant to count the ballot papers of Faurau Box on what is said the Ballot box was damage and the kit box was stolen or missing. There is no petition questioning the non- compliance of section 55 (1) of the National Parliament Electoral Provision Act (Cap 87) although agreed as an issue and the counsel for the Petitioner put forward argument in his final written submission.

In other words, this Issue 3 with no-declaration of First Respondent by the Second Respondent to be elected candidate in pursuant to subsection 55 (1) of the National Parliament Electoral Provision Act is not claimed or petitioned by the Petitioner.

The counsel for the Petitioner in his submission refers to the case Fa,asifoabae v Attorney [1985 – 1986] SILR 74 and although similar with question it was on section 56 (now section 57) of the Act and not section 55 of the Act.
For this case as the evidence has shown it was on the situation at that time in the counting room and the surrounding was tense and unease for the election officials that made the Returning officer to make that decision in pursuant to section 55 (1) of the Act.

On the outset or part of First Respondent there is no illegal practices committed him nor non-compliances or acts by the election officials than this issue with the declaration under section 55 (1) of the Act. On that basis this should be decided within ambit and guidance of section 9 of the Act.
Section 9 reads:

“9. No election shall be invalid by reason of non-compliance with this Act if it appears that the election was conducted in accordance with the principles of this Act and that the non-compliance did not affect the result of the election”.
The evidence before the court is the conduct of the National Parliamentary Election in 2014 and for Fatakeka Constituency was done according the Act except the incidents or disturbances to Faurau Ballot Box with boycott by the counting agent.
And the act seems to suggest they were to disturb the votes purportedly to be in favour of the First Respondent. It was also shown when the counting agent for the Petitioner boycotted or went out from the counting of ballots for the last and Faurau Ballot Box.

The reason for non-declaration of the elected the candidate (First Respondent) for whom the majority of votes casted was made by the Returning Officer on security reasons or the safety of the Returning officer and election official.
In the case Auga v Folotalu {2011) SBHC 41; HCSI-CC 308 of 2010 (17 June 2011, Chetwynd J referred and adopted the English Cases Fitch v Stephenson and Others [2008] EWHC 501 (QC). The provision referred in that English case capture the intention of section 9 of the Act to preserve an election, notwithstanding acts, omissions by the returning officer or other person in breach of their official duties or in breach of the rules.

With this case the conduct of the for Fataleka Constituency was according to the law as the other polling station was counted except this Faurau Ballot Box with the incidents for missing box, alleged damage and the boycott by Petitioner’s counting agent. Notably as show by evidence the non-compliance of section 55 (1) was by security reasons or safety of the election officials.

Whilst there were attempt to disturb the process in the election for Fataleka Constituency the process was done accordance with law as to election and the acts or omission did not affect its result.

To declare the election should be void it is if the court is satisfied that by the alleged damage ballot box and there was reasonable ground to believe that the ballot papers were disturb and do not contained the features or requirement of the Act.

The onus is on the Petitioner to establish the grounds for the exclusion from the count of the votes and affect the result of the election. As the Petitioner was unable to discharge the onus, and the election conduct within the premises of the law, the court would not interfere with the result of the constituency.
The Petition is dismissed

The cost is awarded to the Respondent

THE COURT

......................................................
Justice Leonard R Maina
Puisne Judge