Soalaoi v Tuki [2018] SBHC 88; HCSI-CC 455 of 2014 (8 October 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Soalaoi v Tuki
Citation:
Date of decision:	8 October 2018
Parties:	Clay Forau Soalaoi v Freda Tuki Soria Comua and Attorney General
Date of hearing:	11-13 September 2017, 9-11 October 2017and 20August 2018
Court file number(s):	CC 455 of 2014
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona PJ
On appeal from:
Order:	1. The Petition is hereby succeed granted 2. The election of the first Respondent as winning candidate on 19th November 2014 is hereby declared void. 3. The first Respondent is disqualified to contest should a by-election is conducted before the national general election in 2019 4. Costs related to this petition are paid by the first Respondent to the petitioner 5. The registrar of the High Court shall inform the Governor General of this decision.
Representation:	Mr. Allan Hou for the Petitioner Mr. Makario Tagini for the first Respondent
Catchwords:
Words and phrases:
Legislation cited:	National parliament (Electoral Provision) Act
Cases cited:	Alisae v Salaka, Maetia v Dausabea, Fred Fono v Jackson Fiulaua, Tosika v Tran and Attorney General, Inoke v Tran, Vui v Chang, Kings v Lynn, Dpp v Luft, Thugea v Paeni, Maina v Maga, Riumana v Manele, Vui v Chao,Al Him v Amosa, Toaki v Kopu, Kola v mewa

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 455 of 2014

IN THE MATTER OF PARLIAMENT (ELECTORAL PROVISIONS) ACT (CAP 87) AND THE ELECTION PETITION RULES 1976
AND
IN THE MATTER OF THE PARLIAMENTARY NATIONAL GENERAL ELECTIONS FOR TEMOTU VATUD CONSTITUENCY OF TEMOTU PROVINCE, HELD ON THE 19^TH DAY OF NOVEMBER 2014

CLAY FORAU SOALAOI
Petitioner

v

FREDA TUKI SORIA COMUA
First Respondent

ATTORNEY GENERAL
(On behalf of the Returning officer for the Temotu Vatud Constituency)
Second Respondent

Date of Hearing: 11-13 September 2017, 9-11 October 2017and 20 August 2018
Date of Judgments: 8 October 2018

Mr. A Hou for the petitioner
Mr. M Tagini for the first Respondent

JUDGMENT ON ELECTION PETITION

Introduction:

Faukona PJ: The delay in the timely hearing and delivery of this judgment emanated from many sources, or excuses in some instances.

2. Public knowledge would appreciate that Vatud Constituency is the last constituency on the eastern tip of Solomon Islands eastern archipelago. Witnesses have to be brought in from the outlying islands of Temotu Province by boat to Honiara for giving instructions. Shipping schedule to those outlying islands is not only rare, but the question of economic viability is a prerequisite consideration for any schedule.
3. At the initial stages of the management of the file there were a number of interlocutory applications filed, including an amended petition filed on 18^th March 2015. Eventually only one application was heard, “an application to remove certain paragraphs from sworn statements”. And as well as filing of the amended defence to the amended petition which was filed on 24^th February 2016, almost a year later.
4. On the whole, the management of the file was indeed slow; there can be no excuse to offer, however, could have been better. Despite, certain adversaries we have completed the hearing in seven days. Submissions were directed as agreed upon and supposed to be completed by 30^th November 2017; nothing happened. The reason being the Counsel for the Petitioner began his long illness until he was fully recovered hence, we finally heard submission on 20^th August 2018.

Brief facts:

5. 19^th November 2014 was the date pronounced and nominated where Solomon Islands will go to the polls to elect new Members of the National Parliament. The Petitioner was re-nominated as a candidate to defend his seat, while the first Respondent was among other new candidates contesting the Vatud Constituency in the Temotu Province.
6. After counting of votes the results showed the first Respondent polled 681 votes whilst the Petitioner polled 659 votes. The first Respondent was declared as the winning candidate with a majority of 22 votes. The Petitioner was a runner-up candidate.
7. Being aggrieved of the results the Petitioner filed this petition on 24^th December 2014 and as amended on 18^th March 2015.

The Law:

9. The relevant laws dealing with election petitions had been succinctly exposed in many previous election cases; suffice to point out few which are most relevant as legal basis.
10. Section 5 of the National Parliament (Electoral Provisions) Act sets out the legal basis upon which the election of National Parliament Members be conducted shall be in accordance with the provisions of the Constitution and the National Parliament (Electoral Provisions) Act.
11. Section 66 (1) of the Act profoundly utters that any corrupt or illegal practice committed by a candidate or his agent shall render such election invalid. To nullify any election results, the Court must be satisfied on the evidence that the Respondent or his agents are guilty on the requisite standard of proof as legally required.
12. Corrupt or illegal practice is defined by Halsbury Law of England as imports intention, does not mean wickedly, immorally or dishonest, or anything of that sort, but doing something knowing it is wrong, and doing it with the object and intention of doing that thing which the statute intended to forbid,^[1] see also Alisae V Salaka^[2]
13. The burden of proof in an election case is little higher than the ordinary civil standard although falling just short of the criminal standard-see Maetia V Dausabea.^[3]

Law in dealing with the allegations of corruption or illegal practice:

14. In the case of Fred Fono V Jackson Fiulaua,^[4] Justice Goldsborough explained that S.66 (1) does not suffer the qualification found in S.66 (2) of the Act. In fact there is no conjunctive expression between the two. Subsection (1) speaks of what is described as “Specific” corruption, as oppose to subsection (2) which speaks of general corruption.
15. Subsection (1) confined to actions of the candidate or his agent and subsection (2) is not so qualified. And that subsection (1) is self-confined and need not rely on subsection (2) to import its meaning.
16. His Lordship finally concluded that, “where an election can be shown to involve the commission of corrupt or illegal practice by the candidate or his agent the election cannot be said to have been conducted in accordance with the principles of the Act.
17. Justice Chetwynd in the case of Tosika V Tran and Attorney-General^[5] cited with the approval the ratio in Fono’s case, further clarified, that in essence, one incidence of corrupt or illegal practice committed in connection there with by a candidate or his agent would be sufficient to render the election void.

Allegation of bribery at Tanabili village, Utupua Island:

16. The allegation emerged from the facts that on 16^th November 2014, first Respondent after completed campaigning at Tanabili village gave $1,000.00 each to Robert Lavalu and his daughter Mrs Dorren Tevio.
17. The first Respondent admitted giving one thousand dollars each to Mr Lavalu and his daughter Mrs Tevio on the day in question. It was given after she did her round of campaign. The monies were not given at the same moment of time but after small interval accordance to evidence.
18. According to the evidence of by Mr Tofea, Mr Lavalu was asking for $2,000.00 and his daughter was asking for $3,000.00. However, the amounts requested were not given. The first Respondent only gave $1,000.00 each. In her sworn statement the first Respondent affirmed that both Mr Lavalu and his daughter asked for $2,000.00 and not as Mr. Tofea enumerated, for two different figures.
19. There was no reason given by Mr Lavalu, Mr Tofea or Mrs Doreen as to the purpose for requesting the money. There was nothing stated in their sworn statements either.
20. However, the first Respondent in paragraph 5 of her sworn statement on 21^st May 2015 stated that Mr Lavalu’s reason for requesting the money was to assist with fuel to transport his daughter Mrs Tevio and her sick child travelled to Later by out-board motor engine and canoe seeking medical treatment.
21. The question to pause in a situation where a gift has been admitted by a candidate is whether the gift, under the circumstances, contain evil motive to induce both electors and or their families. In the case of Inoke V Tran^[5] which His Lordship quoted a paragraph cited in a Samoan case of Vui V Chang, where the Court held;

“Where there are two motives, e.g. one kindness or charity and the other is corruption, the question is which was the governing motive, see Salisbury (1884) 40’m & It 28; St.George (1890) 5 O’M & H at 95, Kings V Lynn (1911) 6 O’M & H at 18², Kingston-upon Hull (1911) ibid 378; and East Nothingham (1911) 60’M & H at 302.

22. In the same Samoan case His Lordship, the Chief Justice made reference and cited Lord Diplock’s comments in the Criminal Case of DPP V Luft^[6] which stated;
    • “to speak of a dominant intentions suggests that a desire to achieve one particular purpose can alone be causative of human actions, whereas so many human actions are prompted by a desire to kill two birds with one stone”
23. The question whether the first Defendant had motive or desire to kill two birds with one stone must be assessed on the facts that surrounds this case.
24. Secondly, it is important to uphold the definition of corrupt or illegal practice alluded to by Halsbury Law of England which clearly stated in paragraph 11 above.
25. The question to pause is has the first Respondent motivated by the best interest of saving life, or in a circumstances where public policy demanded obligation which must prevail against all else, or is it a corruptible act.
26. A contrary effort is noted in the first Respondent’s sworn statement paragraph 4 which she stated that Mr Tofea had fore warned her that Mr Lavalu and his daughter Mrs Doreen were supporters of another candidate and had characteristic to ask for money from candidates. She was warned that she should not give them any money at all.
27. What therefore exposed as an underlying factor for giving can be perceived as bribery or an obligation to uphold public interest for saving life. However, if the first Respondent was conscious about what she said in paragraph 5, that she can’t give money to people, may be because of campaign period, then it must be taken that she knew it was wrong to give money during campaign period. The first Respondent’s reason for giving the money was because they had insisted and pestering her in front of many people.
28. It matters not whether she uttered any words to implicate she deserved their votes, the fact which ought to be acknowledged that in Melanesian society the act of giving anything of value has conferred obligation upon the recipient to reciprocate. Ant this has been an expected notion prior and during election period.
29. So the gift in the circumstances of this particular case, though may appear as charitable excellence, there was a fore warning well understood about the characteristics of the two recipients. By going beyond the line tantamount to risk which the first Respondent is obliged to bear.
30. Mr Tofea comes from Utupua Island and was the campaign manager for the first Respondent. As a campaign Manager he knows almost everyone in the villages around the island. He would have known which candidate they support and their affiliations. As a matter of consideration, information conveyed was from a reliable source, from someone who worked closely with the first Respondent. To deny it and divert to a path she was warned not to tread, was like an attempt to lure supporters of other candidates. That is exactly prescribed as buying of votes.
31. It then boils down to a subtle point, that a gift does not necessary require agreement, in certain cases, yes. In most cases prospect candidates transact gifts without asking or based on any agreement. Of course the case of Thugea V Paeni^[7] draws a line that responding to fund raising appeals can be suggested as charitable gift. But not as always as in the case of assisting relatives. In Maina V Maga^[8] a Court quoted a paragraph referred to in Halsbury’s Law of England (4^th Edition) Volumes 5, page 422 states that a gift is charitable, it will not become bribery, because of the used made of it.
32. There is no evidence available that Mrs Doreen’ sick child was an urgent case. And so what was the money used for? The law is clear; it will not be bribery because of the used made of it. In this case there is no evidence of how the money was used. So it hangs on thin air.
33. Again the circumstances can be reasonably evaluated in the context of appropriateness. Is $2,000.00 given to one family to serve the same purpose appropriate in a rural setting? Utupua Island is a long distance away from Santa Cruz where Lata hospital is. Often the seas between Utupua and Santa Cruz are ugly and treacherous. Travelling by sea can be risky and life threatening. Hence people often chose to travel by boat.
34. $2,000.00 given to a family in a rural area is a huge amount of money. Conceivably that can be viewed as inducement to lure Mr Lavalu’s family to change their minds. The question whether Mr Lavalu and his family did voted for the Respondent is not a matter to be considered. The importance is, if the Court is satisfied on the pre-requisite standard that the gift, under the circumstances, carries an element of inducement then the allegation is proved.
35. On the issue of bribery or treating where the recipient asked for it does not amount to bribery or treating, is likened of opening a floodgate. Before or during elections there are many people requested from prospectus candidate’s monies and other assistance. And all too often what was asked for was given. If by that action is not bribery then we are encouraging prospect candidate to give money, a practice under cover in this country. Is that not vote buying?
36. If law allows that as not bribery, fair and good practice, then this country will be in a worst political crisis. Vote buying will become an order of the day and those with a lot of money will give out lot of money on requests, as an acceptable prevailing practice. It is my view, not necessary for me to follow the ratio descendi in the case of Riumana V Manele^[9]. I view that reason as open without limitation and will definitely promote something which the statute prohibits.
37. On this allegation, I find the gift was one which falls within the principle of killing two birds with one stone. Even if it appears as in the best interest of public policy, the amount given is extra-ordinary and was imbalance to people living in rural communities. Noted there is no evidence as to how the money was used. I must therefore find there is evidence that proves the allegation on the required standard which I am fully satisfied with. This allegation must be upheld.

Bribery at Duff Islands:

38. The allegation is that, on an undisclosed date, just before National General Election on 19^st November 2014, the first Respondent gave undisclosed sums of money to three Anglican Churches at Ngauta, Tahua and Kahula villages on Duff islands, Temotu Province, with the motive to induce members of their respective congregations to vote for her.
39. It would appear upon reading of the first Respondent’s defence, and sworn statement of Mrs Taulu filed on 10^th February 2016, they seemed to be uniformly drafted. However, the very significant point the statements alluded to is that the first Respondent had agreed that she gave $6,000.00 to the three local Churches which will be equally divided.
40. Mrs Teulu had confirmed that the first Respondent gave her $2,000.00 before commencement of her campaign on that date. She gave the money to the Chairman of the vestry committee Mr Michael Tauwopi to assist Nghauti Local Church. Mrs Teulu also gave $2,000.00 to Kahula Local Church. All those monies given to the Churches by Mrs Teulu came from the first Respondent.
41. There is no dispute $6,000.00 was given to the three Local Churches at Utupua Island. There is no dispute the monies had been received by the Churches. However, there is dispute whether the monies were given according to the churches’ request or were given in a manner as stated by Mr Diley’s sworn statement that is in accordance to the free will gift to the Churches, which was made public before election date.
42. In any event, the gift to the Churches may perceive as well within the ambit of charitable nature. However, the Samoan case of Vui V Chao, clearly define that there are two motives, one is Charity and the other is corruption, which was the governing motive? The Judge concluded by adopting the ratio in DPP V Luft^[10], which stated, “Whereas so many human actions are prompted by a desire to kill two birds with one stone”.
43. If there was indeed a request from the three local Churches, then who actually made the request and when. If the requests were done by written letters then there must be evidence of a written copy produced in Court.
44. There is no evidence to proof any formal request in a formal manner made by the Churches to the first Respondent for financial assistance. All which the first Respondent and her witness Mrs Teulu said was that the monies were given because of the requests made by the three Churches. That evidence does not proof any truth at all. In my view, relying on such is an elusive attempt which has no credibility to proof the fact in issue.
45. I noted the first Respondent relies on the notion of responding to request does not amount to corruption because of the ratio pronounced in Riumana V Manele^[11]. I have approached that decision in paragraph 36 above. Suffice to say it is not necessary for me to follow the same course. I have expounded on a route which I think will limit to an erasable level that no money should be given to electors even upon request before or on Election Day.
46. If nothing is done, and the decision in Manele continues to be upheld, then we will be allowing corruption to thrive inducing electors to vote rather than allowing them to exercise their free will choice. Such practice if not cured will soon or later ruin the democratic principle and parliamentary democracy which we seek to uphold in this nation.
47. In conclusion, it is absolutely absurd to think that lack of agreement to reciprocate monies for votes has less effect in the manner of giving and receiving. I have been spiritually discern by raising a fundamental fact in Melanesia society that giving valuables to another, even without use of any words “to vote for the giver” is accepted as a universal traditional obligation to reciprocate.
48. The Western world principle of “one good turn deserves another” is very much alive in aboriginal Solomon Islands as well. No one can doubt for an inch of moment that the phrase is a fluke, no.
49. Hence, in the absence of any agreement, oral, formal or otherwise, or none used of any campaign slogan, does not matter. The principle of reciprocate in Melanesian Solomon Islands prevails over any excuses.
50. Therefore, I am satisfied on the evidence to the pre-requisite standard that there is overwhelming evidence which proof the giving by the first Respondent to the Churches was vote buying or corrupt act which is forbidden by the Act. This allegation is therefore proved accordingly.

Allegation of bribery at Lata Station:

51. The Petitioner alleges that on an unknown date prior to election date of 19^th November 2014, the first Respondent at Lata Station, gave the sum of $3,000.00 to Noelyn Maraetoto to induce her to vote for the first Respondent.
52. The first Respondent admitted given $3,000.00 to Noelyn Maraetoto and family when they were admitted at Lata Hospital, see paragraph 7 of her sworn statement filed on 21^st May 2015.
53. By admitting the allegation of giving the amount there is no point to consider whether such giving ever had happened. After admission the issue left is to consider the facts surrounding the gift, as well as the motive of giving.
54. The first Respondent stated that she gave $3,000.00 to Noelyn and family not for the first time. She had supported them all along whilst they were residing at Lata Hospital. She further stated she also provided food and money to support them on past occasions as well.
55. There is no evidence or record of fact in the first Respondent’s sworn statement that she gave the money to Mrs Noelyn because she had asked for it. There is also no evidence of any previous assistance made by the first Respondent. The only evidence is from her.
56. There is evidence from Danny Forau and Melisa Lenga who supported the allegation that the first Respondent gave the money ($3,000.00) to Noelyn. She did not ask for it. Hence the principle enunciated in the case of Riuman V Manele^[12] cannot assist the first Respondent.
57. The other issue that is left is whether the gift was a charitable one assisting a mother and child returning home with $3,000.00.
58. In one perception it could be viewed as a charitable gift financing a mother and sick child returning to Tikopia from Lata after medical treatment. That may also ascribe as in the interest of public policy supporting the vulnerability and inconvenienced persons as obligations.
59. On the aspect of motive, again I make reference to a quote from the same Samoan case which was adopted in the case of Inoke V Tran,^[13]the passage reads;
    • “there are two motives, e.g. one kindness or charity and the other corruption, the question is which one was the governing motive?
60. In the Samoa case of AL Him V Amosa^[14], it outlines; “if one of the motives which accompanied the presentation of money or food was to induce electors to vote for the respondent. His Lordship in that case refer to Lord Diplock’s comments in the criminal case of DPP V Luft^[15], concluded that human actions are prompted by a desire to kill two birds with one stone.
61. To determine the first Defendant’s actin by presentation of money in the sum of $3,000.00, is the question whether the amount is appropriate to pay for the fares of Mrs Noelyn and her child to travel from Lata to Tikopia? The amount is beyond any figure given to ordinary rural dwellers. No wonder Mrs Noelyn was so excited about receiving the money and openly preached that the first Respondent was her candidate. Indeed a rural dweller did not expect such a large amount. Already by her outward action and words said implicated she was induced to make her choice.
62. It does not matter whether the first Respondent had uttered words to the effect of voting her. The fact that it was a large sum of money will definitely had an impact on the receiver to resort to the principle of reprociety, a norm or practice that has been adored in the Melanesia Solomon Islands.
63. By giving $3,000.00 to Mrs Noelyn, though may be a relative, but very near to election time is a clear practice of ulterior motive. It is not one of public interest as can be perceived. It is crystalline clear the amount had never been requested, therefore the principle in law that responding to request is not a corrupt act and the first Respondent cannot rely on in this case. Neither was it a gift in the nature of Charitable, public policy and interest, but a gift motivated by an intention to induce an elector which is a corrupt act which was forbidden by the Act.
64. In conclusion, I find there is evidence to proof this allegation on the pre-requisite standard. Therefore, I must allow the allegation to prevail.

Treating at Tikopia Island – distribution of food to Chiefs:

65. There are number of allegations in respect to treating alleged to have occurred on the island of Tikipia before and during Election Day.
66. The nature of this particular allegation is that on 18^th November 2014, after the boat MV Neptune Gale arrived at Tikopia Island and had unloaded her cargos, the first Respondent distributed rice, Solomon blue taiyo, noodles, sugar and biscuits to the four (4) chiefs on the island see sworn statement of Mr Fangota filed on 23^rd February 2015.
67. The giving of the cargo items to the Chiefs was not challenged but the timing of the giving, a day before election seemed to be the core challenge in this allegation.
68. I noted as someone who had been to the islands in the eighties was fascinated to learn the tradition of the Tikopia people. It would appear to me the traditional structure adopted by the people, in terms of their social inheritance, practice and values, seems to reflect an authortorium kind of culture and social set up where respect and adoration towards the chiefs is the highest order of obligation.
69. In that context, any Tikopian arriving on the island from Honiara, out of cultural obligation and respect must first give to the Chiefs a present in the form of goods or money. The value of goods is immaterial, depends on individual persons and families capabilities. A business person may give more than an ordinary employee.
70. Prevailing from that cultural adaptation, any gift given by the first Respondent was a cultural obligation. The fact that she arrived on the island a day before election did not deter that cultural obligation. The performance of it implicates respect to the Chiefs as required.
71. In that instance the gifts made to the Chiefs were as required by cultural obligation. It cannot be perceived as illegal treating. This ground must be dismissed.

Treating at Tikopia Island – giving of mobile phones:

72. The allegation under this heading was said to have been performed by the first Respondent by giving people new mobile handset which were still wrapped in cage during voting period.
73. The sworn statement of Junior Brown a polling assistant filed on 19^th November 2014 point out that he saw people coming to cast their ballot papers were in possession of brand new mobile handsets. Therefore suspected that something strange was happening.
74. Contesting that suspicion is the sworn statement of Mrs Joan Haeta filed on 12^th February 2016. Mrs Haeta admitted selling mobiles on the boat trip to Temotu Province. She sold 6 mobiles on the boat and three perhaps on election date. One was sold to the first Respondent.
75. After election she sold other mobiles to people but failed to disclose the number.
76. Upon cross examination Mr Brown failed to point out how many mobile handsets were sold or given to how many people. In fact in his own words he was only suspecting first Respondent or her agents must have done it. He did not see any transaction at all. When given oral testimony he did not even mention names of people who received the phones. Thus not corresponding to paragraph 7 (V11) of the amended petition which actually named persons.
77. However, Mrs Haeta upon cross examination said Mrs Yau the Charterer of MV Neptune Gale was her boss. Since it was a business trip she took some new mobile handsets with her to be sold on the trip.
78. The question is whether those mobile handsets belong to Mrs Yau or Mrs Haeta. When Mrs Haeta was examined by the first Respondent’s Counsel she admitted that Mrs Yau was her boss. Hence, there is likely hood the phones must be owned by Mrs Yau, a business woman based in Honiara and who chartered the boat.
79. Nevertheless the question is, was Mrs Haeta an agent of the first Respondent. There is no evidence that can link Mrs Haeta to the first Respondent as her sales agent or whatsoever. However, there was evidence establishing the relationship between the first Respondent and Mrs Yau.
80. The possible conclusion to reach is that the Mobile handsets were sold by Mrs Haeta on behalf of Mrs Yau and not the First Respondent. There is no evidence directly points out who owned those mobile phones sold by Mrs Haeta on the trip. Or was she selling them on behalf of the first Respondent. The evidence does not conclude well on the issue of ownership and agency.
81. In any event, the allegation was against the first Respondent and her agent indulging in distribution of Mobile phones. In fact they were not freely distributed but were sold by Mrs Haeta for money. There is no evidence to proof free distribution so as to attract inducement. In all, I am not satisfied on the evidence supporting the allegation. Therefore I must dismiss this allegation accordingly.

Allegation of treating by providing food to supporters and voters on Tikopia Island:

82. The crux of this allegation premises on the fact that the first Respondents agent Mr Maui had provided cooked food for the electors hence induced them to vote for the first Respondent.
83. That allegation was supported by the sworn statement of Brown Ragi. Among other things he stated that Mr Maui’s house was a resting home of the first Respondent. Secondly he saw people coming out or going out from Maui’s house before and after casting their ballot papers.
84. By her own sworn statement the first Respondents admitted Maui’s house was the home she rested. Mr Maui himself admitted he was a supporter of the first Respondent. At that time he was one of the polling agents of the first Respondent. He also admitted voters went to his house after voting not before voting to have something to eat.
85. If provision of food is admitted then the question is whether the act of providing food is permissible by law. S.72 (1) (a) of the National Parliament (Electoral Provisions) Act states that “any person who corruptly, by himself or by any other person, either before, during or after an election, directly or indirectly gives, provides.” “And in S. 72 (1) (b) states; any elector who corruptly accepts or takes any such food, drink, entertainment, or provision”, shall be deemed to be guilty of treating within the meaning of this Act.
86. A specific point to note is that any giving or providing of food and water made before, during and after election is prohibited according to S. 72 (1) (a) of the Act. The argument raised by the first Respondent is that the provision of food was done after the electors had casted their ballot papers. As the law stands in its literal meaning, that act is still prohibited.
87. Whilst that can be legally condemned, the other element which is a motive reflected in the word “purpose” to corruptly influence the recipient of food and drinks.
88. Upon considering the purpose for giving, it is pertinent that I consider the circumstances surrounding the giving.
89. In submissions, the Counsel for the first Respondent argues that this practice is not corrupt nor amount to bribery or treating. It was customary in nature and that the reasoning is in the case of Toaki V Kopu which Brown J affirmed that any customary practice does not amount to bribery.
90. If one is given a moment of silence, and consider whether giving of food and water before, during and after election is customary in nature, or not. Custom is an adorned practice. In other words it must be widely and equally practiced by people in that particular land area or location.
91. National-General election is an event which occurs every four years. Is providing of food and water to voters before, during and after election widely and commonly practiced by the people in Tikopia as a customary practice acceptable on Tikopia Island? That raises another question, were all the candidates including the Petitioner, his agents or his supporters who were also from Tikopia provided food and water to the voters on Election Day? There is no evidence before the Court that other candidates did what the first Respondent and his agent and supporters did on election date, 19^th November 2014. In the absence of such, the practice can be treated as not customary in nature, because it was not widely and commonly practiced.
92. The impact of such provision by one candidate and his/her agent and supporters may influence voters in this manner. Tikopia Island is a small island with rugged mountains. The two main villages on the island are not located far from each other hence travelling is not a problem. Early bird voters can cast their votes and then return to have their breakfast at their houses.
93. The influential part of such giving, as I perceive is this, a voter arriving at a polling station knowing a candidate has provided food, may change his mind in the eleventh hour, because he/she after casting a ballot paper will have something to eat and drink before going home. That candidate may not be the one he/she had been thinking of to elect, but changed due to availability of food that is already and at hand for disposable.
94. I must conclude this practice of giving food on the day of election is not a common practice in all the societies in Solomon Islands. My home village, in north Malaita was a host as polling station for many years during previous elections, but I have never seen that. Of course providing of food and necessities commonly occurred at gathering and occasions during campaign times. That was different occasion and not the same as this case. However, there was nothing happened in my village compared to Tikopia. Comparison is necessary because the law in treating which the Act prohibits applies universally to Solomon Islands. Therefore I am not hesitated to deviate from the pronouncement in the case of Kola V Mewa.^[16]
95. I find this allegation is proved on the requisite standard, that provision of food by the agent of first Respondent on Election Day falls within the meaning of treating therefore the agent must be guilty of it and this ground must succeed.

Undue influence incidences:
Undue influence at Nebao village, Utupua Ialand:

96. The facts of the allegation are deposed in the sworn statement of Nancy Muna filed on 24^th December 2014. She stated that in 2014 she was doing form 5 at Bishop Patterson Community High School on Utupua Island as a boarding student. She further deposed that on various occasions during school assemblies the Principle would announce that it would be difficult for Forms 3 and 5 if they fail to vote a candidate whose symbol is “puddle”, and that they had very little chance to return to school. Those announcements caused most of the students to change mind and voted for “puddle”.
97. A candidate whose symbol is “puddle” is Walter Mavaemua, a different candidate altogether and not the first Respondent.
98. This allegation was rather against other agents and supporters of a different candidate, not the first Respondent. Such allegation has no direct link with the results of the election. In other words the first Respondent had not benefitted from such undue influence. The candidate who benefitted most is Mr Mavaemua.
99. The only influence that may have impacted Miss Nancy to vote differently from her choice was in respect of the hand out record of how the Petitioner a former Member of Parliament misused the funds. The handouts were given to the students by Mr Mavaemua himself.
100. Conveying of records to students implicating that the Petitioner had misused the constituency funds, in my view, is a normal campaign strategy. Of course failure in one’s life in whatever indulgent is bound to be utilised to direct support. In this case Miss Nancy believed the records, whether they were true or not, had diverted her choice to vote paddle. I see there is no mischief about it. Therefore no undue influence is proved hence the allegation must be dismissed accordingly.

Undue influence by chartering a boat to Temotu Province:

101. The allegation is that by chartering the boat MV Neptune Gale to make a trip from Honiara to Tikopia was nothing other than to facilitate the first Respondents campaign in 2014 National General Elections?
102. According to the Sworn Statement of Mr Lavalu, the Charter was negotiated by Ms Lydia Yau through Mr Henry Sau. Eventually the Charter agreement was endorsed for an amount of $525,000.00, on 25^th October 2014.
103. On the occasion of endorsing the agreement it was the first Respondent who put the money on the table. The occasion was attended by Ms Lydia Yau, the first Respondent, Mr Taki and first Respondent’s brother and Mr Lavalu.
104. It could be possible that it was Ms Lydia Yau who chartered the boat or both with the first Respondent and shared the costs. Ms Yau according to her sworn statement filed on 20^th May 2015 in which she deposed she was a business woman, and over the years she had been thinking of chartering a boat to Temotu Province. At the same time exposed her interest to support women in politics. The charter trip though as a business one, was to support the first Respondent, by transporting her supporters to Temotu Province to participate in the National General Elections.
105. There is evidence that Ms Yau is a naturalised Solomon Islander. Her involvement in domestic politics is unquestionable. In her sworn statement she affirmed she was the Charterer. Her purpose to charter the boat was for two reasons. One that she could make money through collection of fares and freights, at the same time assist the first Respondent transported her supporters to Temotu Province.
106. If the charter was to facilitate the first Respondent’s campaign, then there is no reason perceived the existence of undue influence. The evidence of Mr Ariki and Mr. Forau who were told that the charter was purposely for the supporters of the first Respondent. Hence they decided to travel on another boat. One significant tale is that one cannot go about in public telling everyone that he supports a particular candidate. It supposed to be a personal decision.
107. It has now becoming prevalent that chartering of vessels from Honiara to Provinces carrying support voters is common. Is this one of or falling with the meaning of undue influence? Sometimes voters are silent about the candidate they support and jump on the boat charted by a different candidate. Often people with common sense know the boat was charted by a candidate they do not support. Sufficiently, common sense would dictate, it’s no use to even ask about it or even not to go to the wharf and make an attempt to board the vessel. That is reasonable and of good sense.
108. In conclusion I do not see any undue influence placed on the Petitioner’s supporters for not travelling to Tikopia to cast their votes. It may be a bad practice but common sense should prevail. If a candidate chartered a boat, supporters of other candidates should acknowledge they are not included, therefore no attempt can be made to try and aboard the vessel, it was not meant for them.
109. I find there is no evidence to proof this allegation, therefore I must dismiss it.

Undue influence by the Chiefs of Tikopia:

110. After the election results being declared a supporter of the Petitioner, Mr Paul Terry, decided to find a lawyer to investigate the offences of bribery, treating and undue influence alleged to have occurred on Tikopia Island during and prior to election.
111. A lawyer was identified and was intended to leave for Tikopia. The trip to Tikopia was finally eventuated. The team arrived on the island on the first week of December 2014. Whilst on the island, on the first night, they heard a message from Chiefs stopping them not to investigate into the allegations that purportedly occurred.
112. By complying with the customs of Tikopian people both men then returned to Honiara without attempting any investigation. See the sworn statement of Paul Terry filed on 25 February 2015 and sworn statement of Donny Forau filed on 25^th February, 2018.
113. The testimony advocated by the sworn statement of Paul Terry was merely making reference to a message they heard. That was confirmed by the sworn statement of Hubert Fugui. The sworn statement of Donny Forau described the news as rumours. There is no evidence from anyone who actually heard the message from the mouth of a particular Chief. There are four Chiefs on Tikopia Island. After that the entire objection was legally relieved and investigations ensued resulted in this petition being filed.
114. There is no evidence to suggest that because of the objection by a particular or all the Chiefs, the Counsel for the Petitioner could not able to investigate and obtain sworn statements from particular individuals. All that is purported as evidence in support of the allegation is merely hearsay. The only allegation of treating alleged to have occurred on the island was proved by evidence which I have dealt with. I find there is no evidence to proof objection by the Chiefs. Therefore I must dismiss this ground accordingly.

None disclosure of election expenses:

115. In relation to the allegation of none declaration of election expenses as required by S.45 (1) of National Parliament (Electoral Provisions) act. The provision is an obligation by a winning candidate that within one month, submit to the Returning Officer, a statement of account specifying all expresses incurred.
116. If a winning candidate failed to comply, then it is a responsibility of the Retuning Officer to pursue a legal process against a winning candidate. Whether it be reported and referred to the Leadership Code Commission, or any other processes the Returning Officers thinks proper to deal with the issue. It is my view this court lacks jurisdiction to deal with such an issue.
117. I do not think a losing candidate can utilise a legal obligation vested upon a Returning Officer. To do so will usurp the powers conferred on the Returning Officer. The Returning Officer, by the provisions is directly viewed as a prescribed Officer to deal with such issues should a winning candidate failed to comply. It is more like an administrative function which the Returning Officer must perform in a failure situation.
118. I do not think this allegation can be adequately dealt with by way of a petition. I must therefore dismiss the allegation.
119. In conclusion, the law is crystalline clear. The ramifications of Chetwynd J’s words in Tosika V Tran summarises, that in essence, one incidence of corrupt or illegal practice committed in connection to election by a candidate or agent would be sufficient to render the election void.
120. I have found more than one incidence of corrupt or illegal practice proved in this case. Therefore I do not hold any hesitation to determine the election of the first Respondent on 19^th November 2014 was null and void.

ORDERS:

1. That the petition is hereby succeed and granted.
2. That the election of the first Respondent as a winning candidate on 19^th November 2014 is hereby declared void.
3. That the first Respondent is disqualified to contest should a by-election is conducted before the national general elections in 2019.
4. Costs related to this petition are paid by the first Respondent to the Petitioner.
5. That the Registrar of the High Court shall inform the Governor General of this decision.

THE COURT
.......................................
REX FAUKONA
PUISNE JUDGE

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^[1] Halsbury Law of England Vol. 15, Page 419, cited in Maina V Maga
^[2] (1985) SILR 31 (4^th April 1985)
^[3] CC No. 266 of 1993, 11^th November 1993.
^[4] HC-CC 392 of 2010.
5 HC-CC 218 of 2010.

^[5] Ibid(5)
^[6] (1979) 2 All ER 569
^[7] (1985) SBHC 5; (1985-1986) SILR 22 (14 March 1985).
^[8] (2008) SBHC 19; HCSI-CC 228 of 2006 (18 March 2008)
^[9] (2018) SBHC 24; HCSI-CC 437 of 2014 (15 February 2018).
^[10] Ibid(7).
^[11] Ibid(10).
^[12] Ibid(10)
^[13] I(bid (5).
^[14]WSSC 16.
^[15] Ibid(7).
^[16] CC No 5 of 2017.