Philip v Auga [2019] SBHC 91; HCSI-CC 254 of 2019 (26 November 2019)

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Case name:	Harry Philip v Auga

Citation:

Date of decision:	26 November 2019

Parties:	Harry Philip v Augustine Auga

Date of hearing:	11-15 November 2020

Court file number(s):	254 of 2019

Jurisdiction:	Civil

Place of delivery:

Judge(s):	Maina PJ

On appeal from:

Order:	All grounds of the petition is dismissed The petitioner to pay the costs of the Respondent such costs to be agreed or taxed

Representation:	Mr. R Firigeni for the Petitioner Mr. W Rano for the Respondent Attorney General at Main Trial-No Appearance

Catchwords:

Words and phrases:

Legislation cited:	Electoral Act 2018, s126, Electoral Petition Rule 2019

Cases cited:	Fono v Fiulaua [1993] SBHC 29 Maetia v Dausabea [2011] SBHC 6

Mr. R. Firigeni for the Petitioner
Mr. R Rano for the Respondent
Attorney General at Main Trial- No Appearance

Solomon Islands went to poll at the General Election held on 3 April 2019. The Petitioner Harry Philip was a candidate for the Lau/Mbaelelea Constituency and the Respondent was elected as MP for the Constituency. The election was conducted under the Electoral Act 2018.

This petition was filed in the High Court by the Petitioner, a candidate at the election challenging the elected MP for the Lau/Mbaelelea Constituency, Malaita Province. He was the unsuccessful candidate and run-up candidate, the seat having been declared in favour of the Respondent.

There were allegations made against the Election Officials but the grounds were struck out at the preliminary stage, if proved would not affect the result of the election^[1]. For now any Attorney General’s appearance through counsel is only to fulfil the requirement of Rule 34 of the Electoral Act Petition Rules 2019.

The Petitioner and Respondent were candidates in the Lau/Mbaelelea Electoral Constituency 2019 National General Election. There were 8 candidates contesting the constituency.

The 2019 National General Election was held on the 3^rd April 2019. The counting of the ballot papers were made at the Auki Community High School on the 5^th, 6^th and 7^th April 2019.

Present at the counting of the votes were the Returning officer for the Lau/Mbaelelea Electoral Constituency, counting agents of the candidates, and no presiding officers present.

There were some objections raised by the counting agents for the Petitioner at the counting of ballots.

The result of the counting was announced on the 7^th day of April 2019 and the First Respondent polled 4728 and the Petitioner polled 2467.

The Returning officer then declared and or returned the First Respondent as winning candidate for the Lau/Mbaelelea Electoral Constituency in the said 2019 National General Election.

The election result was formally gazetted on or about 17^th April 2019 and the Petitioner filed this Petition on the 6^th May 2019.

And the Petitioner seeks an order that Candidate Hon Augustine Maeue Auga was not duly elected or returned and that his election was void.

There are two grounds on bribery and two grounds on undue influences and they raise the following issues:

A standard of proof in the election petition is higher than the balance of probabilities. This standard is stated or set by High Court in Maetia v Dausabea^[2] and further illustrated in Fono v Fiulaua^[3].

As such it is clear that the standard of proof required in an election petition is to all intents and purposes. On that basis where the ground relied on was bribery or undue influence it is necessary to proof that as it is constituted elements the Criminal law offences of bribery or undue influence.

What then, is the element that constitutes the offence of bribery and section 126 of the Electoral Act 2018, incorporates a range of corrupt practices of unlawful inducement, which may make out the charge of bribery? The section provides and illustrates these types or variety:

A person commits an offence if the person directly or indirectly, by violence, intimidation, threat or physical restraint, attempts to influence another person to:

The law is clear and designed to prohibit improper inducements to persons, to electors, or candidates in an election. It can be inducements to an elector, any person entitled to vote at any election - or other persons, the corrupt practices aimed at, are those inducements offered or sought, with the intention of interfering or not according to the lawful process of an election.

There is no general definition of bribery beside the specific instances set out in section 126 of the Act. But this section in subsection (1) (b) of the Act plainly provide that intention is an element or integral part of the offence as with directly or indirectly promises, offers or gives a benefit to another person; and the person does so with the intention of influencing the other person or inducements, in order to induce, or with the intent that show that the purpose of offering the inducement, is an element of the offence.

It is also important to note that in the Election Petition or while it may be that the grounds alleged in a petition charge a criminal offence, it is not necessary that a ground needs to be set out as if it were an allegation as would be, on the fact that the petition does not have the same focus as a criminal court. The court in election petition is looking to the validity of an election and it is not if a respondent is liable to a criminal penalty.

I will deal with the grounds or in each issue separately under section 126 of the Electoral Act and that only one act of bribery proven to the entire satisfaction of the Court according to the standard and if committed by the Respondent is sufficient to invalidate an election result and or for supporter or others if affect the result.

As far as the Electoral Act is concerned in this case, the Petitioner is alleging it is the Respondent himself and other incident by his supporter gave the money to the people and attempts to influence another person, in order to induce them or vote for him at an election, vote in a particular way at the election; or influence a third person to vote for him or vote in a particular way at an election.

With the analysis of the law^[4], a literal meaning in order for the petition to succeed, the Petitioner must show that the Respondent gave to a person in order to induce that person to endeavour to procure his return at the election or the vote of an elector at the election. It will involve two situations:

The same interpretation would apply for the provision relate to the undue influence^[5]

It is alleged in the Petition that on Tuesday 2^nd April 2019 at Kwainafala Village, in the Lau/Mbaelelea Constituency, Respondent gave $200.00 cash to Fred Ramo, to induce the witness to vote for him.

The sworn evidence of this witness Fred Ramo is that he was the registered voter at Lau/Mbaelelea constituency. On that day, the Respondent was driving a silver coloured vehicle, Rav4 (which was amended at presentation of evidence as a Silver Toyota Prado), along the main road at Kwainafala village and when he saw the witness, stopped and told witness to follow him to his office.

The witness Ramo said he followed the Respondent to his office and about 8 pm, the Respondent called him and gave to him $200.00 in two, one hundred dollar notes and Respondent told this witness that he should not vote for the “ship” (Petitioner’s symbol) but vote for light (Respondent’s symbol).

Witness Ramo, then went back to the Petitioner’s camp at Kwainafala village and showed the cash money to the camp manager, Philemon Maelabu. The next in the morning he also showed the cash money to his father John Maiasi. The two witnesses gave evidences and both told the court of what Fred Ramo had told them that the Respondent gave him $200.00 and told to him not vote for the “ship” and to vote for the light.

Briefly the evidences of Philemon Maelabu and John Maiasi proposed to establish the truth of Ramo’s evidences in the outset however it is hearsay and therefore inadmissible. And I am satisfied that this evidence of the two witnesses is hearsay and therefore inadmissible and is struck out.

Respondent denied the allegation of giving any money to this witness, even had not known this witness. He stated that he was not able to drive as he had boiled on his leg. He provided a medical report as attached to his sworn statement.

Fred Ramo was a registered voter, however to say that Respondent drove the vehicle on the road, saw him, stopped and told the witness to follow him to his office, and at the office the First Respondent gave $200.00, possess ambiguity or a vague statement. It is so because whether the witness followed the Respondent in the vehicle or he walked by leg, is not disclosed in the sworn statement nor at the brief examination in-chief and cross-examination (CXM).

Further by the public knowledge it was the eve of Election Day, a critical time for the candidates and there should some people accompanied or stayed with the Respondent at his office or place where he resided at the time. Nothing of this sort was closed by the witness in his evidence.

What is clear in the witness’s evidence was a hidden interaction between him and the Respondents but such do not alike well with the common situations of the eve of Election Day. He did not disclose in evidence the situation with Respondent and around at his office or the place of the Respondent.

The court relies on the credibility of the witness and Respondent. I am not satisfied on the evidence of Fred Ramo and find this allegation not made out to the required standard; therefore this ground is struck out.

The Petitioner alleged that on the 31^st March 2o19 at New Konga Village Malaita Province, Haniel Miniti and Selo Aloga gave a Tafuliae shell and $1,000.00 cash to his brother David Miniti, Samuel Rancy and Edward Tonafalea to induce them to vote for the Respondent. The Tafuliae and cash money was allegedly provided by the Respondent.

It is not disputed that Haniel Miniti accompanied by Selo Aloga went and gave a Tafuliae (shell money) and $1,000.00 cash to David Miniti. Haniel Miniti stated he has a problem with his brother and coming over to Malaita at the election time was an opportunity to reconcile or sort out the problem in custom with his brother by giving the Tafuliae and cash money to his brother David Miniti. Haniel Miniti said the Tafuliae and cash money was not from the Respondent. And Haniel Miniti stated that he was the supporter of the Respondent and voted for him at the election.

John Iro gave a sworn statement and appeared in court. He stated he came with his data and or to write or who go with his candidate and arrive there at about 9.30 am. He said he saw the family and Haniel Miniti and Selo Aloga sitting at the dining hall and Haniel Miniti told the family to take the money and they had to go. This witness described what he saw as “mi offline now” as tafuliae is a big thing in Malaita.

At the CXM, this witness stated the distance from where he stood and family discussion by pointing at the court room from the witness box. Both counsel agreed it is about 9 – 10 metres or less than 10 metres. Asked if the family saw him but the witness stated they turned their back to him and they spoke at normal voice and he can hear them. He stood there alone and it was his first time to see Haniel Miniti.

With John Iro’s evidence it is sketchy when he said that he arrived at the place and saw the family with Haniel Miniti whom this witness said his first to see him or was the first time he saw Haniel Miniti. Logically or it is impossible to recognize a person whom you just seen him for the first time in your life. The witness’s evidence is vague or ambiguous therefore inadmissible and struck out.

With the evidence of David Miniti, Samuel Rancy and Edward Tonafalea, they made sworn statements of copied nature or set up for the purpose and two were called to be cross-examined except Samuel Rancy who did not appear.

David Miniti made sworn statement stating that Haniel Miniti and Selo Aloga came and gave them a Tafuliae and $1,000.00 cash and asked them to vote for the Respondent. He believed that the money was from the Respondent.

At the examination-in-chief, David Miniti stated he believed that the money was from the Respondent as Haniel Miniti was a member of Auga’s technical committee as advisor to him. This witness said at the election he voted for the Respondent.

At the cross-examination David Miniti stated that they came to his house, not the camp. He was not in his house but he received the money for his people.

Edward Tonafalea was examination-in-chief and he confirmed that he gave a sworn statement. He stated that Haniel Miniti and Selo Aloga came to them at the camp and Haniel Miniti pulled out the tafuliae and $1,000.00 cash and gave to their family and go with them. Haniel Miniti then left and went back to Respondent’s camp. This witness stated that Haniel Miniti was in the technical committee advising the Respondent on the constituency projects. Edward Tonafalea voted for the Respondent.

At the re-examination of this witness he said that Haniel Miniti did not tell them that the tafuliae and $1,000.00 cash was to repay the debts.

Counsel Firigeni for the Petitioner submitted that Haniel Miniti was the supporter of the Respondent and he described him agent as he is a member of the Respondent’s Project Committee. And the tafuliae and the cash money has motive to induce the family. However, for an agent and supporter they different roles or categories i.e. an agent is appointed for the purpose election as polling or counting agent, when a supporter is person who support or vote for a candidate in the election. Very important to note that if the latter is an offence or prohibited in law, then it will defeat the process of election or there should be no general election.

The tafuliae and $1,000.00 cash was taken by David Miniti and his family. The onus is on the petitioner to show or proof that the Respondent provided or gave the item and cash in order to induce that person to procure his return in the election or Respondent gave the item and cash money in order to procure the vote of an elector at the election.

On this inducement claim on part of the Respondent the evidence is from David Miniti when he believed or assumed the money was from the Respondent as Haniel Miniti, a supporter and member of Auga’s technical committee. Where the money came from was also stated by Edward Tonafalea in his evidence however these were only assumptions or guess by the witness.

I do not find this allegation made out to the required standard and this ground is struck out.

It is alleged that on the Election Day, 3^rd April 2019, the Respondent, being drunk, drove into gardens areas with a silver Toyota Prado, destroying mounds of root crops, and shouting excessively abusive words to the community members who are queuing to vote and ordering them to vote for him.

James Oeta Mamuala gave a sworn statement and also stated in the court at the examination – in – chief that Respondent drove a vehicle and nearly overturned when it came in to the Kwalofo Polling station. He stated the Respondent was drunk and was holding a can SB in his hands. Respondent shouted that ship will sink down at Anogwou and he repeated his words.

When asked at the CXM by the Respondent’s counsel if the Respondent threat him and others, this witness stated “no”.

Another witness Joseph Badley Aruafu gave sworn statement that Respondent came in and asked the Presiding office to tick his vote for Dr Judson Leofasia and he shouted in big voice. When asked at the CXM by the counsel for the Respondent about the voting, this witness stated that in the morning period there was queuing but in the afternoon people or voters came to vote in 10 and 15 minutes intervals.

Respondent gave evidence and stated that he came to Kwalofo village on a vehicle driven Michael as he was not able to drive as he had a swelling legs. He came to the polling station about 3 and 4 pm. The polling station was located further in-land and he question why it was further in land as at the previous election it was near the road. As they drove in to the polling station the road was small and it ran on and damaged the plant’s mounds at the side of the road. He was not drunk and had not taken SB beer ever in his life.

Presiding Officer Lauia Luda for Ward 10, Kwalofo Polling station gave sworn statement and evidence in court that did not notice or deny the allegation that on polling day, 3^rd April 2019 that the Respondent attended the Polling station shouting and using abusive language. The Presiding Officer stated the Respondent rather expressed his disagreement at the relocation of Kwalofo Polling Station from its original location.

For the purpose of undue influence there is no evidence of violence, intimidation, threat or physical restraint and with the attempts to influence another person to vote or by the act of the Respondent, I am not satisfied on the evidences and find this allegation is not made out to the required standard, therefore this ground is struck out.

The Petitioner alleged that on the Election Day, 3^rd April 2019, at Luma’alu Polling Station, Lau/Mbaelelea Constituency, the Respondent, uttered these words. “Ship ba e sink na aena Anogou” to the voters queuing to vote, purposely to influence voters not to vote for Harry Philip, the Petitioner, whose symbol is ship.

The evidence of Cleven Oiofa in the sworn statement that at around 12.09 and 12.15hrs and 4pm he was at Lumaálu when the Respondent uttered “Ship ba e sink na aena Anogou”. This witness stated that Respondent appears to be under the influence of liquor but at the CXM he stated he stood about 3 metres away from Auga but he did not smell any beer from him.

At the CXM, Cleven Olofia also said the words were not threatening but seems to be degrading and Respondent was not smelled of liquor but he was holding a can of SB beer.

Another witness Rose Baeri’i stated in the sworn statement that she voted at Olotabu Polling and came back to her village. She stated the Respondent had said that “Ship ba e sink na aena Anogou” at about 4pm and after that he spoke to Roselyn Ishmael. When asked at CXM by the counsel for Respondent if there was threat, this witness said when Auga was talking no body ran away.

Respondent denied he entered at Lumaálu as he voted at Kwalofo and only went there between 3 and 4 pm and was driven on the vehicle by Michael.

For undue influence, there must be or exist an evidence of violence, intimidation, threat or physical restraint and attempts to influence another person to vote or by the act of the Respondent. None seems to exist, than if it was so at this circumstance then it may be simple joke. I am not satisfied that this allegation is not made out to the required standard therefore this ground is struck out.

Petition on charge of bribery and undue influence are serious allegations, therefore the base facts constituting the crime of bribery must be established or proof on the standard merely the same as in a criminal court and must be proved as it is constituted in the criminal law or standard higher than the balance of probabilities.

For the entire petition or case I am satisfied that the Petitioner has failed to establish the grounds of bribery and undue influence with the standard of proof required in an election petition and therefore all the grounds of the Petition is accordingly dismissed.

High Court of Solomon Islands

Philip v Auga [2019] SBHC 91; HCSI-CC 254 of 2019 (26 November 2019)