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Temahua v Vagara [2020] SBHC 13; HCSI-CC 282 of 2019 (20 March 2020)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Temahua v Vagara


Citation:


Date of decision:
20 March 2020


Parties:
George Temahua v Silas Kerry Vagara, Attorney General


Date of hearing:
6 December 2019 (Trial), 19 December 2019 (Closing Submission)


Court file number(s):
282 of 2019


Jurisdiction:
Civil


Place of delivery:



Judge(s):
Keniapisia PJ


On appeal from:


Order:
36.1 Mr. Silas Kerry Vagara was the duly elected Member of Parliament for WNGVVC.
36.2 In accordance with Section 111 (5) of the Electoral Act 2018, read with Rule 35 (1) of the Electoral Act Petition Rules 2019, Court will give a certificate of its decision to the Electoral Commission, Governor General and Speaker of Parliament in due course.
36.3 Further amended petition is dismissed with costs on standard basis to be taxed, if not agreed. I will assess cost.


Representation:
Mr. J Taupongi for the Petitioner
Mr. W Rano and Ralph for the First Respondent
Mr. S Banuve for the Second Respondent


Catchwords:



Words and phrases:


Legislation cited:
Electoral Act 2018, s126 (1) ,s108, Black’s Law Dictionary, 8th Edition, page 1249, National Parliament Electoral Provision Act [cap 87]


Cases cited:
Fono v Fiulaua [2011] SBHC 6, Temahua v Vagara, Ulufa’alu v Saemala [1993] SBHC 31, Henslaw v Faw COH [1835] LJFB 147, Lich Field Division [1895] 50 M & H 27, Stroud [1874] 20’M & H 181,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case No. 282 of 2019


BETWEEN:


GEORGE TEMAHUA
Petitioner


AND:


SILAS KERRY VAGARA
First Respondent


AND:


ATTORNEY GENERAL
(Representing the Returning Officer for West New Georgia and Vona Vona Constituency)
Second Respondent


Date of Hearing: 6 December 2019 (Trial); 19 December 2019
Date of Judgment: 20 March 2020


Mr. J Taupongi and M. Tahu for the Petitioner
Mr. W Rano and J Ralph for the First Respondent
Mr. S Banuve for the Second Respondent

JUDGMENT IN AN ELECTION PETITION

Introduction

  1. Solomon Islands, went to the polls in a General Election (GE), held on 3rd April 2019. Mr. George Temahua, Mr. Silas Kerry Vagara, Mr. Mamu Hebala Paza and 4 other candidates contested West New Georgia Vona Vona Constituency (“WNGVVC”). Mr. Silas Kerry Vagara won the election to become Member of Parliament for the said constituency.
  2. Mr. George Temahua, filed an initial petition on 17/05/2019. The initial petition was later challenged through an application to strike out. Counsel Rano made the said application. Court heard the application on 05/07/2019. And in a Ruling, dated 16/08/2018, Chief Justice Palmer, struck out all the allegations made in the initial petition. Only one surviving allegation reached trial. That allegation is bribery (promise to induce), contained in the Further Amended Petition filed on 20/08/2019.

Standard of Proof – A High One – Court’s Entire Satisfaction

  1. Before I dig into the single surviving allegation, I should briefly outline the burden of proof in election petition in this jurisdiction. It is trite law and Counsel agreed that the standard of proof in election petitions is a high one. It is not mere balance of probability (civil standard). It is not beyond reasonable doubt (criminal standard). But it is still a high standard of proof and requires the Court to be entirely satisfied with the evidence produced to support the allegations made (Fono[1]). The standard of proof will require that clear and cogent proof of the allegations to the Court’s entire satisfaction is adduced... in evidence and not simply on the mere balance of probabilities[2]. I also note the current law that even one single incident of bribery, can affect the election result, in favour of the Petitioner. With a high standard of proof in my mind, I will now turn to look at the surviving bribery allegation.

DERICK GASIMATA MADE A PROMISE TO INDUCE ALLAN BOSO AND HIS FAMILY TO VOTE FOR SILAS K. VAGARA

  1. Petitioner alleged that on the 30/03/2019, at Kibiri village, Dunde, Munda, Western Province, Mr. Derick Gasimata, an agent, of 1st Respondent made a promise to one named Allan Boso, that the 1st Respondent would give a 15 Horse Power Out Board Motor Engine (OBM), to Allan Boso, if Allan Boso and his family would vote for the 1st Respondent. In defence 1st Respondent denied that Derick Gasimata was his agent. And deny that the said Derick Gasimata (DG) promised any OBM to Allan Boso (AB).

Agreed facts

  1. Before I look at the evidence, I should repeat the agreed facts (page 105 - 106 Court Book). The Petitioner and the 1st Respondent were candidates at, and contested in, the national general elections for West New Georgia and Vona Vona Constituency on April 3, 2019. The results of the election were as follows: First Respondent – 1,887 votes; Petitioner – 1,582 votes; Mamu Hebala Paza – 1,155 votes; Billy Veo – 924 votes; Dickson Kaehuna – 538 votes; Francis John Zama – 433 votes and Calvin Ziru – 248 votes.
  2. Derick Gasimata is the biological brother of the 1st Respondent’s mother. Allan Boso is the son of the late Bendley Boso. On a day between December 2018 and March 2019, Derick Gasimata and Allan Boso had a discussion in Munda about an earlier allocation by the 1st Respondent of a 15 horsepower out-motor to Allan Boso’s father, Bendley Boso (now deceased).
  3. On April 1, 2019, a campaign for the 1st Respondent was held in Vivirua village in Munda.

Petitioner’s evidence

  1. In support of the one surviving allegation, Petitioner called 4 witnesses. On the other side, 1st Respondent called 6 witnesses (including 1st Respondent himself). The Attorney General took passive role in the petition. For no serious allegations were directly made against election officials.
  2. Crucial witness for the Petitioner on the surviving allegation is Mr. Allan Boso. Mr. Boso’s initial evidence, is what I will focus on, to deduce whether the conversation AB and DG had at the alleged 30/03/2019 meeting, can amount to promise, that will then amount to bribery, which the Electoral Act 2018 (No. 6 of 2018) forbids. I will examine the alleged promise from 2 lenses: (i) Promise in Fact (comes from analysis of evidence) and (ii). Promise in Law (comes from analysis of evidence and application of the relevant law).

PROMISE IN FACT

  1. Mr. AB deposed a sworn statement (ss) and was cross – examined in court. Mr. AB is a well-educated, professional (teacher[3]). And no doubt AB was aware of what he was deposing to in the English language. So, AB’s ss can be taken on face value. I need to closely scrutinize AB’s evidence to see if it has a clear and cogent proof, that DG, bribed AB and induced AB and AB’s family to vote for 1st Respondent. The burden of proof is on the Petitioner. And the burden is a high one, requiring the court’s entire satisfaction with a clear and cogent proof.
  2. Mr. AB deposed that, he met up with DG, at his (AB) new house, at Kibiri village, Dunde, Munda, Western Province, on 30/03/2019. Parties, by consent, put the date of the meeting broadly or generally as taking place on a day between December 2018 and March 2019. Mr AB was however adamant that the day of the meeting was 30/3/2019. Mr. AB remembered this day very well, because, it was on a Saturday, the day Munda residents witnessed the first international flight to Munda, our second international airport. Mr. DG, on the other hand, under cross examination from Counsel Taupongi, says he could not remember, the actual date in December 2018. In his ss, DG deposed that the date of meeting was in December 2018.
  3. I am convinced that AB’s evidence is clearer about date of meeting as opposed to DG’s evidence that attempted to put the date broadly and generally in December 2018. In December 2018, AB’s father was still alive. Evidence shows AB’s father died sometimes in December 2018. And so, to put the date as an open date in December 2018, is not entirely clear. I will settle with date of meeting as on 30/03/2019.
  4. Whether third persons were present at the meeting? Again Mr. AB’s evidence is clear. Mr. AB’s evidence says clearly that no one was present at the meeting (carpenter or kids playing). Mr. DG’s story is that a carpenter and 2 kids were also present at the meeting. Mr. DG did not even know the name of the carpenter. Mr. DG could have called the carpenter to confirm his story. I prefer Mr. AB’s clear evidence. That AB and DG met and discussed alone, not in any other person’s presence.
  5. The most important aspect that go to the heart of the allegation is the discussion about the OBM. Mr. AB’s story is that, Mr. DG was riding a bicycle on 30/3/2019. And was about to go past AB’s house, when AB talked to DG and greeted him. So, Mr. DG turned into AB’s area. These are the exact words, in Mr. AB’s ss:-
“Sometimes between 9 am and 11 am, on that day, one Derick Gasimata, a maternal uncle of 1st Respondent (Mr. Gasimata is the biological brother of the 1st Respondent’s mother), came by my house. He was riding a bicycle. I greeted him, as he was about to pass by and he turned into my area. We then sat down and had a discussion about the upcoming 2019 general elections”[4] (Underlined my emphasis).
  1. Then in the course of the general election discussions, Mr. DG told Mr. AB, about an earlier allocation of an OBM. That the 1st Respondent had earlier intended to give an OBM to Mr. AB’s late father, Bendley Boso, but since AB’s father died in December 2018, the 1st Respondent and his team were of the view that the OBM, should be given to AB’s family. On this part of the evidence, the 2019 general election discussions made perfect sense. The meeting took place only 4 days prior to 3rd April 2019 GE. And so, the delicacy topic for any discussion would have to be election matters under the microscope. The OBM was an election matter under the microscope, because, it was a story of direct relevance to the two parties (AB and DG). Evidence also shows that AB and DG are related[5]. AB is DG’s nephew, being born to DG’s cousin sister.
  2. Then Mr. AB’s evidence suggested, that it was DG who started the OBM discussion. On who started the discussion, Mr. AB’s evidence is not so clear to me. Mr. AB’s earlier or initial ss story was Mr. DG was riding a bicycle. And was about to go past AB’s house, but DG turned into AB’s house, after AB talked to DG and greeted him. Logically, on this initial part of AB’s evidence, it was Mr. AB who called Mr. DG into his area/house - meaning AB had matters to discuss with Mr. DG. And so logically Mr. AB would have raised the OBM discussion initially. Mr. AB says Mr. DG raise the OBM story initially. Mr. DG says Mr AB raised the OBM story initially. So, I am not so clear, who raised the story initially. Whoever may have raised the story initially, I am not able to be entirely satisfied about, due to lack of corroboration (burden on the Petitioner). I am however happy to settle with the fact that AB and DG had discussions about the earlier allocation of OBM to AB’s late father – Bendley Boso.
  3. Other discussions about the OBM as contained in AB’s ss can be summarised as follows:-
    1. There was a talk among 1st Respondent’s team that the OBM, should be given to Jacinta Boso, AB’s sister.
    2. But DG was of the view that AB should take the OBM, because AB was the first born son. And also because AB was not one of the known supporters of the 1st Respondent. So DG thought the OBM should be given to AB. And that in exchange for the OBM, AB and his family should vote for 1st Respondent. Mr. DG also told AB that the OBM was to have been given to Dennis Mamu. But Dennis Mamu was no longer active in supporting the 1st Respondent. So that is why DG came to AB.
    3. And DG asked AB to assist the 1st Respondent to check around Kibiri Zone, to compile a list of the known supporters of all candidates, including support for 1st Respondent. And to give to DG, the list, once AB had compiled it. And then DG concluded that 1st Respondent would give the OBM to AB, after the election.
    4. Then at paragraph 12, of AB’s ss, AB said he did not verbally agree to Gasimata’s promise. The discussion ended. AB never met or spoke with DG again, until the general elections were held.
  4. Then in cross – examination, Mr. AB revealed further, the following facts :-
    1. AB did not accept the promise (in answer to Counsel Rano’s question).
    2. AB did not say ‘Yes’ and did not say ‘No’ to the promise (in re-examination by Counsel Taupongi).
    3. AB did not follow up or ask about the OBM, either from DG or 1st Respondent, even 8 months after the GE (in answer to Court’s inquiry).
  5. On these crucial parts of the evidence, I am not entirely clear as to whether there was promise, express or otherwise, to induce AB and his family or was it only a “hot and sweet discussion” that AB had an illusion about? If it was true that DG had made a promise expressed or otherwise to AB about the OBM, to procure AB and his family’s vote, then the following evidences from AB himself, do not cogently, support such a contention:-
    1. Mr. AB was supposed to take the promise (accept the promise and therefore rely on it). But as the evidence shows AB did not verbally agree to DG’s promise. AB did not accept the promise. He did not say ‘No’ or ‘Yes’ to the promise.
    2. As a “condition” to accepting the promise, Mr. AB was to have assisted 1st Respondent check around Kibiri and compile a list of known supporters in Kibiri Zone and to give it to Mr. DG (AB did not accept the promise, so he did not compile any list and did not give any list to DG). For AB say in evidence, he did not meet or talk with DG again until the general elections were held.
    3. Even Mr. DG never came back to check on Mr. AB about collation of the list of known supporters in Kibiri Zone. If true, that DG had made a promise and asked AB to compile a list, of known supporters in Kibiri Zone, DG would logically come back to check on AB for the list. Compiling the list would have shown, that AB accepted the promise. Similarly checking for the compiled list, would have shown seriousness and commitment on the part of the “promisor” (Mr. DG). None of that had occurred. Yet logically, compiling a list 4 days prior to the polling day would have been a delicacy. It would be something of “red-hot interest” to DG, being a strong supporter of his nephew (1st Respondent). Yet DG never came back to check on the list from AB.
    4. Even after the general elections were over, Mr. AB did not follow up on the OBM promise. If it was a promise, if the promise was accepted, then it should have logically triggered “high expectation” on the “promisee” – (AB). I say high expectation, because an OBM is a valuable and expensive item. It is not an item/property, we normally get from the shops daily or frequently.
  6. I am therefore not entirely satisfied that DG had made a promise, express or otherwise, about the OBM, to induce Mr. AB and his family to vote for 1st Respondent. The OBM discussion was in my view, a “hot and sweet topic” that AB and DG had talked about on that day (30/03/2019), only 4 days away from the polling day (3rd April 2019). The discussion may have been “hot and sweet” that AB had an illusionary conclusion about the OBM OR “Was it an attempt to make a bribery allegation sit on an illusionary conclusion?”

PROMISE IN LAW

  1. Section 126 (1) of the Electoral Act 2018 (No 6 of 2018) created the offence of bribery. There are 2 basic elements of the offence of bribery that a Petitioner must proof in an election petition. Petitioner must establish to the court’s entire satisfaction both elements. The 2 elements are (i) that the culprit promises a benefit to another person and (ii). The culprit promised the benefit to that other person with intention of influencing the other person’s vote (to vote, or refrain from voting or to vote in a particular way).
  2. The Repealed Act[6] had the same effect as the New Act[7]. It is still bribery (promise of a benefit) and the Petitioner is still required to show intention to induce or to influence the other person. Speaking about the effect of the Repealed Act, in Ulufa’alu[8] , Chief Justice Muria relevantly stated: -
  3. Applying Ulufa’alu case and the principles of law Chief Justice Muria pronounced therein , I already found on the evidence (under promise in fact above) that DG did not promise AB the OBM (benefit) as an inducement to vote for the 1st Respondent. Evidence was not clear and cogent. So Petitioner failed to establish on a high standard that DG promised to procure a bribe (OBM benefit) for the purpose of inducing AB to vote for 1st Respondent. In addition on the evidence (repeat paragraphs 10 - 20) can we say DG made a promise to procure AB’s vote, as a bribe? For me to be entirely satisfied the promise must be “expressed” and not one which may be inferred by the conduct of parties. Already I was not convinced on a higher standard that there was an “express promise” to procure a bribe by DG. I could possibly infer a promise from the conduct of the parties. But to do so would result in compromising or lowering the high standard of proof (entire satisfaction of the court).
  4. Furthermore, for the court to be entirely satisfied that there was express promise to procure a bribe, the promise must have been operative, at time of election, on the “promisee” (AB). That did not happen here, because AB did not verbally agree to the promise. AB did not compile the list, a condition with the promise. All these shows that the promise (if there was any) was not operative on AB at time of election. All these show AB did not believe in the promise. So there was no bribe or promise operative on AB at time of election.
  5. I tried to understand further what Chief Justice Muria meant by “operative” in a rather simple way. In my respectful view, operative means that at time of the election, the promise must have had an “effect” on the “promisee” (AB). There are three limps to the “effect”, in my respectful view. First the promise should have “created a high expectation” on AB. High expectation because an OBM is a valuable and expensive item. It is not an item we normally get from the shop daily or frequently. There was no high expectation, as AB did not accept the promise. AB did not take the promise. Second AB did not give any “consideration” for the purported promise. For AB did not compile the list of known voters in Kibiri Zone. Checking around Kibiri and compiling the list of known supporters, would have shown that AB had acted on the promise, to his detriment (worked hard in reliance on the promise). And thirdly, AB did not “wait” for any promise, either at time of election or going beyond the election. For AB’s own evidence revealed he did not meet up with DG or talked with DG, until the GE were held. And that AB did not make a follow up on the promise, 8 months after the GE, because he did not believe whatever DG told him saying in cross examination - “I knew they lied to me”, in response to Court’s enquiry.
  6. On the evidence before me (AB’s own evidence), the promise was “conditional” upon AB assisting to check around in Kibiri and to collate a list of known supporters for 1st Respondent in Kibiri Zone[9]. So for the promise to have a binding force, the “condition” must be performed. Here as I found elsewhere above, Mr. AB did not check around Kibiri Zone to compile the list. And Mr. DG did not check AB back on the list. So really there was no promise in law. For the condition to the promise was not met, on AB’s part. In other words, AB did not give any “consideration” for the promise. So there cannot be a binding force in law, on the promise (if there was any promise at all). This conclusion/finding strongly supports my findings earlier (paragraph 20) that AB and DG’s discussions about the OBM was a “hot and sweet talk”, without any seriousness or commitment on either of the parties (AB and DG).
  7. There was no giving of the alleged bribe on the evidence. There was no agreement to give or to offer the alleged bribe on the evidence. And there was no promise to procure the alleged bribe on the evidence. Yet these are the important skins that Petitioner should have established on the evidence, with clear proof to Court’s entire satisfaction.
  8. Lastly, I will examine the legal definition of promise. The legal definition of promise entails the following[10]:-
  9. From my findings above (paragraphs 10 - 20), it cannot be said (in fact) that DG had made an express promise that 1st Respondent will give the OBM to AB, if AB and his family will vote for the 1st Respondent. As I found on the evidence no such promise was conveyed in such a way that AB was justified in understanding that DG was actually making a commitment, regarding the OBM. Manifestation of an intention to act in a specified manner (DG to procure the OBM for AB) must be “express” and not merely inferred. Only manifest intention, clearly expressed, can be justifiably understood by the other party (AB). Here there was no such manifest intention, clearly expressed, so AB could not be said to have been justified in understanding that DG was actually making a commitment regarding the OBM. All it was, is a “hot and sweet discussion” (repeat paragraph 20).
  10. As I found above, the alleged promise on AB’s own evidence (repeat paragraph 17 (iii), 19 (ii) and 26) was “conditional” upon AB checking around Kibiri and compiling a list of known supporters in Kibiri Zone. Like I found in paragraphs 19 (ii) and 26, AB did not compile the list. So having not fulfilled the condition, the promise (if any) does not have binding force in law on DG. In other words, AB did not give “consideration” for the promise (if there was any promise at all).

Conclusion and Orders

  1. I will now turn to answer the 5 issues posed for trial. First issue is: “Whether DG was an agent of 1st Respondent at the 2019 GE for WNGVVC?” I did not go to elaborate and analyse this issue, because I was not entirely satisfied that DG had bribed AB about the OBM. And so I did not get to consider the 3 remaining witnesses for the Petitioner, whose evidences were to proof DG was an agent of 1st Respondent.
  2. Second issue is: “Whether a member of family, either from the immediate family or extended family can be regarded as an agent despite lack of knowledge and authority from the candidate?” Again, I did not elaborate and analyse this issue, because I was not entirely satisfied DG had bribed AB about the OBM. And so, I did not get to consider the 3 remaining witnesses for the Petitioner, whose evidences were to proof DG, was an agent of the 1st Respondent.
  3. Third issue is: “Whether DG promised AB on 30/03/2019, at Kibiri village, in Dunde, Munda, that the 1st Respondent would give an OBM to AB, if AB and his family would vote for 1st Respondent?” I made the main finding that DG did not make any promise, express or otherwise to AB about the OBM. This is the crucial finding that led to the demise of the surviving allegation.
  4. Fourth issue is if the answers to issues 1, 2 and 3 above are in the affirmative: “Whether DG made the said promise to AB with the intention of influencing AB and his family to vote for the 1st Respondent at the election contrary to Section 126 (1) of the Electoral Act 2018 (No. 6 of 2018)?” I have found that the Petitioner did not proof in evidence to my entire satisfaction, that DG made any promise, express or otherwise, to AB about the OBM.
  5. And the most important, fifth and last issue is: If issue 4 had been established to my entire satisfaction: “Whether I should declare that 1st Respondent had contravened Section 126 (1) and therefore his election to Parliament void under Section 108 of the same Act?” The surviving allegation was not proofed on a high standard to my entire satisfaction. I would therefore decline to make a declaration of nullity in respect of 1st Respondent’s election to Parliament.
  6. Accordingly, the orders of the Court are: -

THE COURT
JOHN A KENIAPISIA
PUISNE JUDGE

[1] Fono v Fiulaua [2011] SBHC 6; HCSI-CC 335 of 2010 (11th March 2011).
[2] Temahua v Vagara and Another, Civil Case 282 of 2019, by Chief Justice Palmer, in a Ruling delivered on 16/08/2019.
[3] Holds a Bachelors of Education and Management from University of Goroka, Papua New Guinea.
[4] See paragraph 7 of AB’s ss at page 110 of Court Book.
[5] See paragraph 3 of Derick Gasimata’s ss at page 128 of Court Book.
[6] National Parliament Electoral Provisions Act (Cap 87).
[7] Electoral Act 2018 (No. 6 of 2018)
[8] Ulufa’alu v Saemala [1993] SBHC31 -CC 204 of 1993
[9] See paragraph 11 of AB’s ss at page 111 of Court Book.
[10] Taken from Black’s Law Dictionary; 8th Edition at page 1249.

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