Riumana v Manele [2018] SBHC 24; HCSI-CC 437 of 2014 (15 February 2018)

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

Civil Case No. 437 of 2014

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

AND IN THE MATTER OF: The National General Election for the Hograno Kia Havulei Constituency held on 19^th November, 2014.

BETWEEN: SELWYN RIUMANA - Petitioner

AND: JEREMIAH MANELE - First Respondent

AND: ATTORNEY GENERAL - Second Respondent

(Representing the Returning Officer for

the Hograno Kia Havulei Constituency)

Date of Judgment: 15 February 2018

Mr. G. Suri for the Petitioner
Mr. R. Harper for the Respondent
The Attorney General (was excused no allegations against him)

JUDGMENT ON ELECTION PETITION

Maina PJ:

Introduction

The Petitioner Selwyn Riumana disputes the election of the First Respondent Jeremiah Manele as member for Hograno Kia Havulei Constituency in the 2014 General Election held on 19^th November 2014.

The petitioner relies on two grounds of bribery or corrupt practices under section 66 (1) and or as read with section 71 (a) of the National Parliament Electoral Provisions Act (Cap 87).

Ground
The grounds are:

1. Bribery or corrupt practices committed by Mr Jeremiah Manele with $1,200.00 cash at Momotu village on 9^th November 2014;
   
2. Bribery or corrupt practices committed by another person with knowledge of a member of Manele campaign group with $100.00 cash at Momotu village on 9^th November 2014.
   

A Preliminary Matter

It is noted with great concern that there has been an excessive delay in the hearing of this case or election cases for that matter, not alone to the work attitudes of the counsels or excuses for appearance to other judges in other cases and overseas trips. But or otherwise a need to revisit the current constitutional and legislative system with the hearing of election petition cases as judges are flooded with criminal and civil cases. That has been a long time concern by the courts and court users.

The Case

There were candidates contesting in the constituency and among them were the petitioner who polled or received a total of 2,081 votes and respondent who polled or received 3,323 votes. A majority of 1,242 votes and the respondent was declared being duly elected.

Respondent Jeremiah Manele was among the candidates contesting the Hograno Kia Havulei Constituency seat at the 2014 National Parliament Election. He arrived at Momotu village, Isabel Province on 8^th November 2014 and conducted election campaign at evening. On next day Sunday 9^th November 2014 or after the campaign he and his campaigning party were leaving the village and on their way down to the seaside, Respondent gave cash money to Chief Rackson Aumana (Chief Aumana) who is the Village Chief of Momotu Village Isabel Province.

Also on Sunday 9^th November 2014 Hilda Fina, a member of Respondent’s campaign group at Mablosi Village gave $100.00 to the women at the beach.
On the Election Day, 19^th November 2014 a witness Chief Aumanu whom the Petitioner alleged to be bribed by the Respondent casted his ballot vote for the Petitioner.

Standard of proof

The burden of proof rests with the petitioner and appropriate standard in the allegation of bribery is a standard higher than the balance of probabilities Maetia v Dausabea [1993] SBHC 29. It is a higher standard for a criminal allegation or when dealing with allegations of contempt of court that may result to a penalty. And the then Goldsbrough J in the case Fono v Fiulaua [2011] SBHC 6; HCSI-CC 335 of 2010 (11 March 2011) acknowledges or states that the standard of proof is closer to the standard applied in criminal cases.

In this case the allegations are serious and amounting to criminal offences and the higher standard or closer to the standard in criminal cases applies.

The Issues

It is not denied the Respondent gave money to Chief Aumana and Hilda Fina gave the $100.00 to women at the beach and the issues are:

1. Whether the act of the Respondent of giving the money to Chief Aumana amount to bribery or with intend to induce the elector/voter to vote the Respondent? and;
   
2. Whether the act of Hilda Fina was intended to induce the elector/voter to vote the Respondent?
   

Petitioner’s Case

The Petitioner relies on the evidences of Chief Aumana with sworn statements filed on 12^th December 2014 and 22^nd September 2016.

Briefly the evidences is that on Sunday 9^th November 2014 after attending the Church service Barnabas Pulomana came to Chief Aumana and told him that Respondent wanted to see him. He waited but Respondent did not come.
Later Barnabas Pulomana came and told Chief Aumana to follow a foot path leading to the coast. He went and met a member of Respondent campaign team. Barnabas Pulomana came and told him to follow a foot path leading to a canoe shed along the Kololako riverside. According to Chief Aumana there he met the Respondent who gave him $1,200.00 cash and said “here $1,200.00 for family support blo you”

Chief Aumana stated that Respondent had never given me any money or assistance before and he is not related to him either. And he have never met him before until the Respondent came to his village on Saturday 8^th November 2014.

Chief Aumana said he understood that Respondent wanted him to vote him otherwise he would not have given me the $1,200.00. He said that Manele did this because Aumana is an influential man in his tribe and village; and Barnabas Pulomana knows about this. However, he said he already had a plan to vote Petitioner.

With the sworn statement filed 22^nd September 2016, Chief Aumana denies the defences by the Respondent that he had asked for the money the previous night or after the campaign.

The evidences of Selina Aumana (wife of Chief Aumana) that she went to the garden on that Sunday to cook the rice for after-service meal and to scare the birds from eating their corn fruits. She waited at the garden for a long time until his husband the three children arrived at the garden. Selina complained to his husband for waiting a long time.

Her husband Chief Aumana came back and showed her a bundle of $100.00 notes that he husband took from Jeremiah Manele who campaigned at Momotu village the previous night.

Selina counted the money and the total amount was $1,200.00 and for her daughter Sadie (who was in Form 3 at Muana Community High School) and she confirmed that the total was $1,200.00.

The Law

Sections 66 (1) and 71 (a) of the National Parliament Electoral Provisions Act (Cap 87) (Act) states:
Section 66 (1)

“66.—(1) No election shall be valid if any corrupt or illegal practice is committed in connection therewith by the candidate elected or his agent´.

............................................................”

Section 71 (a)

“71. The following persons shall be deemed to be guilty of bribery within the meaning of this Act—

(a) any person who directly or indirectly, by himself or by any other person on his behalf, gives, lends, or agrees to give or lend, or offers, promises or promises to procure or to endeavour to procure, any money or valuable consideration to or for any elector or to or for any person on behalf of any elector, or to or for any other person, in order to induce such elector to vote or to refrain from voting, or corruptly does any such act as aforesaid on account of any elector having voted or refrained from voting at any election;
...........................................................”

The provision in section 66 (1) of the Act speaks on no valid of the election if any corrupt or illegal practices are committed, in connection therewith, by the candidate elected or his agent. In other words, a bribery committed or attempted by a candidate: if he is the successful candidate, Section 71(a) applies: his election shall be declared void under Section 66 (1) of the Act.

Section 71 (a) of the Act provides for the definition or acts that may be committed by the candidate elected or his agent. Thus if a candidate elected directly or indirectly gives any money to or for any elector in order to induce such elector to vote or to refrain from voting the candidate elected be subjected to section 66 (1).

To make no valid election, the petitioner must proof the Respondent gives, any money to any elector to induce such elector to vote or to refrain from voting: and at any election.

Corrupt or illegal practices committed by a candidate elected or his agent, section 66 (1) applies and election shall be declared void.

Counsel Suri G submits that the allegations are bribery, a corrupt practices under National Parliament (Electoral Provisions) Act.

Counsel Suri refers to His Lordship Wood in the Alisae v Salaka [1985] SBHC 6; [1985-1986] SILR 31 (4 April 1985) states:

“There is a clear distinction between treating and bribery in two respects, first as it affects the candidate, and secondly, as it affects the voter. In bribery there must exist a corrupt arrangement, but not so in treating, where votes are sought by a display of generosity. S.71 of the Act is drafted in similar terms to the United Kingdom legislation and commenting on that legislation dealing with this section Blackburn J said:-

“.... corruptly there does not mean wickedly, or immorally or dishonestly, or anything of that sort, but with the object and intention of doing that which the legislation plainly means to forbid. In fact giving meat or drink is treating, when the person who gives it has an intention of treating ... and ... not otherwise and in all cases where there is any evidence to show that meat or drink has been given, it is a question of fact for the judge whether the intention is made out by the evidence which in every individual case must stand upon its own grounds.”

"Corrupt" means doing the thing which the legislature forbids. The question whether the intention was to influence the voter must depend upon the circumstances and the manner in which the refreshment was given, the time when it was done and very much upon the nature of the entertainment.

At the end of the day it is very much a question of credibility. ..........................................”

It is the credibility of the evidences, attitudes, behaviours and circumstances or event occurred to show or infer if the petitioner has made out his case. In other words, a case of corrupt practice for the purpose to induce or influencing the votes of the elector can be inferred from such or by the credibility of the evidences.

For this case, it is not disputed or the evidence is that the Respondent gave the money to Chief Aumana (elector) except on (the amount) and matters relate to “to induce such elector to vote or to refrain from voting at an election” which I will analysis and will rule on them.

And it is also not disputed that Hilda Fina from the Respondent’s campaign group at Mablosi gave $100.00 each to five women who at the village beach asked for assistances.

To withstand a corrupt practices under section 71(a) and by that definition, petitioner must prove that the Respondent or another person with his knowledge and authority proof the following elements or components to exist:

1. gives, lends, or agrees to give or lend,
   
2. any money or valuable consideration,
   
3. to or for any elector or to or for any person on behalf of any elector,
   
4. in order to induce such elector to vote or to refrain from voting,
   
5. at any election
   

The question is, if the Respondent committed a corrupt practices or event occurred as described by the Petitioner as bribery and defined under section 77 (a) of the Act is established?

Ground 1

The evidence shows that elements 1, 2, 3 and 5 are established as Respondent gave $1,200.00 ($1,400.00 as claimed the by Respondent) to Chief Aumana) and or it is not disputed. But the Respondent stated this witness asked for the money the previous night and he gave the sum for the examination and school fees for his son and daughter as he believes in education.
The Respondent’s giving the money rises question and require relevant considerations to determine whether it was the purpose or in order to induce such elector to vote or to refrain from voting.

If it was given and not asked for by this witness, it could easily have been regarded as payment of a bribe or vote-buying. But with the circumstances of this case I am satisfied that it was asked for a specific need i.e. money for the examination fees and school fees. This witness went to the Respondent at the night of 8^th November 2014 (after the campaign) and it was between 9 pm and 10 pm and he went back to his house by 10.30 pm. The question is whether Chief Aumana wanted to ask the question about the housing scheme talked about at the campaign or he was try to sell his ID card to the Respondent. But the matter of housing scheme was discussed at the campaign time and he should have asked the Respondent at that time than late at the night in private. This private discussion is confirmed by Chief Aumana himself when he said in his sworn statement filed on 22^nd September 2016 that it was short discussion because his question was only one point, i.e. housing scheme. For this discussion, I agree with the Respondent as it was already late in the night and time to go to sleep.

The evidence shows that Chief Aumana was talking about selling his ID card but the Respondent told him that it is against the law to sell ID card. Chief Aumana did not refute this Respondent’s evidence however stated that he heard about some people talking about selling ID cards.

Again the evidence of Chief Aumana’s wife, Selina Aumana in sworn statement filed on 6^th March 2015 at Paragraph 7:

“7. Upon hearing my complaint, my husband showed me a bundle of $100.00 notes and he said he went to get those monies from Jeremiah Manele who campaign at the village”.

The responses by chief Aumana to his wife shows an attitude or manner which he obtained the money from the Respondent. He asked or searched for the money. What is this or was it a funding raising exercise? I conclude that Chief Aumana asked for the money for his needs and the Respondent gave him the money.

It is also interesting to note as stated by Chief Aumana that he had told chiefs of the petitioner’s village and others about this money and they argued about the money.

Giving the money, a benefit in the form of cash is there. However, it was a legitimate response to the need for assistance. I noted both the submission that it has a corrupt intent on part of the Respondent and the evidence that Chief Aumanu came and took the money when the Respondent’s party was preparing to leave Momotu village.

The above matters are relevant considerations or to take into account in determining whether that was a corrupt practice or intent. If the amount of the cash was higher noting the purpose was requested for, it could easily have been regarded as payment of a bribe or vote-buying. But in the circumstances of this case I cannot agree to anything more than a Respondent giving money to a need of a person i.e. educational reasons.

The money was received and the Petitioner must adduce evidences from person receiving or the reason for money made was according to the understanding of the Respondent and according to the understanding of the person (Chief Aumanu) receiving the money.

To establish the bribery or corrupt practice the mental think or component of the person making the payment and mental element think of the person receiving the money must directly link or join together.

It can work both ways as with a candidate in an election can bribe an elector for his vote with money, materials, other things or promises and even an elector can bribe a candidate for promises of rewards with his vote.

The latter attitude or practice is commonly describe or express by the people in the streets of our Honiara city, provincial towns, villages and communities in Solomon Islands as “Con” or “Conman”. If it was so for this case then the chief of Momotu Village was that, as he did not vote for the Respondent but voted for the Petitioner as he confirmed in his evidence.

Interesting to note also is the evidence from this witness that it may be the Respondent was thinking that he is an influential person in his tribe. A doubt on his part or presumption that does make any mental element think or direct link of the Respondent (giving money) and Chief Aumanu (receiving money).

The law do not forbids any person giving valuable things to or for any other person as by the definition in section 71 (a) of the Act. Beside the other elements or components, it is the giving (money for this case) “in order to induce” an elector to vote or to refrain from voting that need to be satisfied or to establish the alleged bribery or act is prohibited by the law. And as noted above the influence of the voter must depend upon the circumstances and the manner in which the money was given to that person.

And in all or further it should be carefully distinct from the criminal element of bribery of electors by candidates for freely giving out cash and goods in return for the electors’ votes. And this is being opposed to candidates paying money in direct response to direct requests without there being any criminal element of intentionally inducing the electors to vote contrary to their own wish or desire.

His Lordship Wood in Alisae v Salaka said and when he quote from Blackburn J, that “for the purpose of influencing the vote, the word "corruptly does not mean wickedly, immorally or dishonestly, but rather means with the object or intention of doing what the legislature forbids”.

It is so and the petitioner must establish by the evidences the object or intention of doing than just to assume or presume the act of the Respondent was done during the campaign period.

The elements of giving and person are established as the Respondent gave the money to Chief Aumanu. However, it was asked by the witness when he went and saw the Respondent in private at the late previous night. I reject the Counsel Suri’s argument that corrupt practices can be inferred from the following facts and propositions:

• it happened at the election period or before the polling date,
• the proximity of monies to time is suspicious and shows intention to induce the voters.
  

The fact that the dealing or event occurred about 10 days before the polling date does not make it unlawful, irregular or improper. There is no evidence to state that it was for purpose of election except as what chief Aumanu stated in evidence “here $1,200.00 for family support blo you”. I find this is a relying speech for the money to chief Aumanu

Interestingly to note is that if it was for the purposes or relates to the election, then it may have been transacted at the previous night (in the dark) than the next morning (at day break) on the beach.

This creates doubt on me that it was to induce the witness or for the purpose of influencing votes under section 71(1) (a) and 66 (1) of the Act.

And I am not satisfied and this ground fail, has not been proven.

Ground 2

It is not disputed that Hilda Fina from the Respondent’s campaign group gave $100.00 to five women who asked for assistances on children’s day. The question that it was to induce these women to vote or to refrain from voting is an issue. And the burden is on the Petitioner to proof on upper standard of civil cases to the court.

Again the petitioner must show by evidence that agent of the Respondent gave the money to induce the women to vote or to refrain from voting at the election. It is not a presumption or belief that was at the campaign period the money was a corrupt practices. Evidence must show that it was for the purpose or induce the elector.
With the same reasons as in the first issue I am not satisfied and his ground also fails, has not proven.

Conclusion

The grounds of the petition have failed as the petitioner was unable to prove on the higher standard of civil case that the respondent or and any of the persons acting allegedly with his knowledge or gave money in order to induce any elector at an election i.e. one of the elements of the offence of bribery or corrupt practice. I find that is a just and sufficient reason to dismiss the petition.

ORDER

The Court orders that:

1. The petition is wholly dismissed,
   
2. The petitioner to pay the Respondent's costs.
   

Judgment accordingly

THE COURT

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