Daufanamae v Fika [2020] SBHC 15; HCSI-CC 267 of 2019 (26 March 2020)

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Case name:	Daufanamae v Fika

Citation:

Date of decision:	26 March 2020

Parties:	John Daufanamae v Titus Mokofi Fika, Attorney General

Date of hearing:	27 – 31 January 2020

Court file number(s):	267 of 2019

Jurisdiction:	Civil

Place of delivery:

Judge(s):	Maina PJ

On appeal from:

Order:	The Petition is dismissed The Petitioner to pay the costs of the Respondent The Registrar to promptly advice the authorities or offices concerned on the decision of the court on this election petition

Representation:	Mr. D. Lidimani for the Petitioner Mr. L Kwaiga for the First Respondent Ms. Fakarii for the Second Respondent

Catchwords:

Words and phrases:

Legislation cited:	Electoral Act 2018, s126 and 127

Cases cited:	Philip v Auga [2019] SBHC 19, Choylin Yim Douglas v Parapolo [2020] SBHC 4, Maetia v Dausabea [1993] SBHC 4, Fono v Fiulaua [2001] SBHC 6

ATTORNEY GENERAL
(Representing the Returning Officer for West Kwaio Constituency)
Second

Mr. D Lidimani for the Petitioner
Mr. L Kwaiga for the First Respondent
Ms. Fakarii for the Second Respondent

The Petitioner John Daufanamae was a candidate in the 2019 National Elections. The Petitioner disputed the election of the First Respondent Titus Fika as member for the West Kwaio Constituency in Malaita Province and filed this petition. Petitioner seek orders that the 1^st Respondent was not duly elected, that the election be declared void.

There were five grounds, however before the hearing of the case, the Petitioner withdrew grounds 2 and 3 and left with Grounds 1, 4 and 5. The remaining grounds relate to alleged acts of bribery and or undue influence, allegedly committed by the agents and supporters of First Respondent.

The election was held on 3^rd April 2019. There were 14 candidates contesting the West Kwaio Constituency and the 1^st Respondent won the election or duly elected with 1,697 votes and Petitioner came second with 838 votes. And the 1^st Respondent was declared elected Member of Parliament for West Kwaio Constituency.

The Petitioner alleged that before and during the said election, the 1^st Respondent was by himself and his campaign mangers or agents guilty of corrupt practices of aiding, abetting, counselling or procuring the commission of the offences of bribery or treating or undue influence contrary to sections 126 and 127 of the Electoral Act 2018.

The Standard of Proof in the Election Petition is higher than the balance of probabilities^[1] and with the grounds of bribery or undue influence, Petitioner is required to prove the intents and purposes.

As I explained in the cases Harry Philip v Auga^[2] and Choylin Yim Douglas v Bartholomew Parapolo^[3] that in an election petition the court looks to the validity of an election and the person elected must be elected within spirit or intention of the Electoral Act 2018, and it is not if a respondent is liable to a criminal penalty.

With this ground the Petitioner alleges that on 29 March 2019, at about 5pm at Point Cruz wharf, Honiara, the spouse of the 1^st Respondent, Judith Fika, in the presence of another gave one Selina Surufonosiia, cash of $500 with the intention to influence the same to vote for her husband.

Evidence for the Petitioner on this ground consisted of two sworn statements of Selina Surufonosiia filed on 15^th July 2019 and 18^th September 2019 and one sworn statement Lawrence Tone’e Jr filed on 15^th July 2019

Selina Surufonosiia stated that on 29 March 2019, at about 5pm, she arrived at landing craft ramp (wharf) at Point Cruz, Honiara and met Neslyn Omea (also known as Nesa) and there, Neslyn instructed her to proceed to Mrs Judith Fika in the ship in order to get her ticket.

Selina said that Neslyn told her that Mrs Fika was present on board the MV Awka to hand out tickets to West Kwaio voters and to board the vessel for Auki.

This witness said as instructed or told, she went and located Mrs Fika in the cabin next to the stairways of the ship. According to this witness, Mrs Fika had in her hand two exercise book or note books which she entered the names of West Kwaio voters whom she issued tickets or sea-fares to them.

Witness Selina further stated that Mrs Fika told her that since she had ran out of tickets, she will instead give her cash and instantly handed to her $500.00 in $100 –dollars bills (notes) in the presence of his brother, Lawrence Tone’e Jr.

The Petition’s witness Selina stated in her evidence that Mrs Fika gave to her the money at the ship’s cabin. There was a lot of people with noises by them and the ship’s engine.

Selina said that when Mrs Fika gave the money to her, she uttered in Pidgin words “Yu go back go votim Titus”.

When crossed-examined (cxm), Selina stated that when she came down to the wharf to the board ship MV Awka, she and Lawrence Tone’e Jr already had tickets to travel to Auki.

Witnesses Lawrence Tone’e Jr testified to have seen or confirmed that transaction between Selina and Mrs Fika. He heard the uttered words by Mrs Fika to Selina.

Mrs Fika made two sworn statements that was tendered to the court by consent. She travelled with her daughter in-law Frace Guru, niece Judith Taho and daughter Irish Ropoóri.

Mrs Fika admitted giving $500.00 to Selina when she came and beg for assistance for fares for her and three other students. Mrs Fika told Selina that she only had this cash money $500 and they have to top-it-up by them self to cater for them.

Mrs Fika stated the Selina asked for the money to assist them with fares and she gave the money to her in the ship’s cabin.

Neslyn Riadi’s sworn statement was tendered to the court by consent and she was referred to by Selina Surufonosiia as Neslyn Omea (also as Nesa) in the statement filed on 5^th August 2019 responded to the sworn statement or evidence of 27^th June 2019. She stated that she met Selina in the ship MV Awka and Selina asked her of whereabouts of Mrs Judith Fika. Neslyn said when Selina approach her, she was not accompanied by anyone nor Lawrence Toneé.

They went to the cabin where Judith Fika was sleeping and Selina went and see her. Neslyn said she saw and heard from the place where she was standing when Selina asked the money from Judith Fika. She heard Selina asked Mrs Judith Fika to assist with ship’s fares for her and Winifred. Winifred is also Neslyn’s cousin. Neslyn said when Mrs Judith Fika gave the money to Selina, she did not say any word as “Yu go back go votim Titus”. If Mrs Judith Fika had said such words she would have overheard it.

Neslyn said when Mrs Judith Fika gave the money to Selina there was no exercise book with her but only her hands and the money.

It is alleged in this ground that the alleged bribery by Mrs Fika of Selina happened on the date, at about 5pm at Point Cruz wharf, Honiara. However the evidence showed that Mrs Fika gave the money to Selina in the ship’s cabin at about 7pm.

With the transaction or at the moment when Mrs Fika gave the money to Selina, witness Lawrence Toneé stated in his sworn statements that he was there and had seen and heard Mrs Fika uttered to vote for the Respondent. Interestingly to note from sworn statements of Selina and Lawrence Toneé filed on 15^th July 2019, they appear to have similar in the contents, words and paragraphs, then extracted from each other with changes on the personal situations or circumstances of the witnesses, otherwise, being tabulate or type versions of the statements.

The evidences of the 1^st Respondent is that when Selina asked Neslyn for Mrs Fika, she led Selina to her. Mrs Fika said she gave the money because Selina asked her money to pay the sea-fare for her and others and uttered and words to word for the 1^st Respondent. Neslyn was present when Mrs Fika gave the money to Selina and said that she did not hear Mrs Fika uttered any words to vote for Titus or refuted those words said by Mrs Fika to Selina.

When counsel Kwaiga asked Selina in the CXM, if she already had a ticket when she came down to the ship, and her answers was “Yes”. And further counsel put to Selina that if she already had a ticket to travel on the ship she should not need another ticket. Selina’s response to was “No” And she further stated, it was time for them to get or make money.

This is fascinating on part of Selina as it reveals her intention when she approached Mrs Fika and the fact that Selina already had a ticket to travel but wanted to raise money for her. Let alone or otherwise this may be a criminal offence of obtaining money by false pretence.

From what is now before the court, there is no evidence that Mrs Fika was giving out tickets to West Kwaio voters to travel to Auki on board MV Awka the evening on 29 March 2019. When Selina asked for Mrs Fika and Neslyn led Selina to her, Selina asked Mrs Fika money, purportedly for the tickets to travel to Auki and so Mrs Fika gave Selina a cash of $500.00.

It is clear that Selina went and asked Mrs Fika for money to travel to Auki on MV Awka when she already had ticket to travel on that ship’s trip as she already had a ticket to travel to Auki on the trip. Mrs Fika gave Selina a cash of $500.00

Selina had an intention to take advantage or chance to get money from Mrs Fika as Selina confirmed at the CXM and such act cannot amount or prove that this allegation of bribery.

And I find no evidence to prove the alleged bribery in this ground and this ground is struck out.

The allegation on this ground is that Stanley Siko was Campaign managers of the 1^st Respondent and provided cooked food and ration at his residence to induce and treat voters going to cast their ballots at Maoa Polling Station.

Evidences for the Petitioner on this ground 4 consisted of sworn statements of Kelyn Madu filed on 15^th July 2019, Joint statement of George Manamae and wife Madelena Manamae filed 15^th July 2019, Genesis Lae and John Ohoinao 18^th September 2019 and the CXM of these witness.

Briefly, the evidence of Kelyn Madu is that she was a registered voter of West Kwaio Constituency. At paragraph 2 she stated:

When she arrived at the kitchen there was a huge family pot from which Glenda served her with cooked rice and taiyo. This witness said when served with food, Glenda uttered, in siesie words (in language) and translated as “kakai blo oketa lo pineapple ya, u must save ya”

At the CXM, this witness stated that she used to go to Siko’s house and when Glenda called she went to her as Glenda is her sister-in-law.

The evidence of George Manamae and wife Madelena Manamae try to establish or support Kelyn Madu evidence. Both stated in their joint sworn statement they were about 15 meters away from Siko’s kitchen and saw Kelyn Madu went in the kitchen and heard Glenda uttered to her with the words. Further they stated that after Kelyn Madu went and four other persons came in the Siko’ kitchen about 30 minutes later. He made reference to other persons to have gone Siko’s area.

At the re-examination witness George Manamae confirmed that he is Stanley Siko’s son but they were not in good terms over the candidate’s at the time of election.

Witness Genesis Lae stated that he saw Mr Sikos just after lunch at the Maoa Polling station and he was ready to cast his vote. Later he came out and sat with him. And briefly the evidence of John Ohoinao stated that he met Mr Sikos after lunch at the Maoa Polling Station and the purported conversation he had with him.

With sworn statement of Genesis Lae and John Ohoinao filed 18^th September 2019, the counsel for the 1^st Respondent objected them as they were not filed in accordance with Rules 14.28 as it the two statement bears no Certificate of Compliance

This is a fascinating ground on the fact that it alleged inducement and treatment of general voters or public than naming the persons being influenced by the act alleged Campaign managers or instruction of the 1^st Respondent. This raises question on the validity of this ground. However, when Glenda Dai offered cooked food to Kelyn Madu at the kitchen, Stanley Siko was not there in his kitchen. Kelyn Madu is a regular visitor to Siko’s house as she is their sister-in-law.

The evidence of George Manamae is ambiguous or doubts as it tries to exactly state what happened in a siesie words or small voice sounds which to my view is difficult or can’t heard from such a distance of 15 meters away and worse so it happened in the kitchen. George Manamae is Siko’s son but they were not in good terms over the election at the time. I am not impressed with their evidences.

The evidence of Genesis Lae and John Ohoinao has irregularity or not filed in accordance with Rules 14.28 of the Civil Procedure Rules but essentially they just stated the where about or location of Stanley Siko at the Election Day. It confirms that Stanley Siko was not at his residence.

I am satisfied that Stanley Siko was not a campaign managers or agent for the 1^st Respondent and no evidence to support the allegation of providing cooked food and ration at Stanley Siko residence was to induce and treat voters going to cast their ballots at Maoa Polling Station.

The name stated in this ground as “Ms Agasia” is a nick name and her or real name is Madalena To’ofonosi. For the purpose of this appeal I will refer to her as Ms Agasia.

This ground is rather confusing or obscuring but the evidence at the hearing seems to reveal that Ezekiel Obimae was the presiding officer at Ngariwane Polling Station and allegedly, an active Campaign Manager and agent of the 1^st Respondent and he allegedly forcefully persuaded Ms Agasia to vote for the 1^st Respondent. The ground did not disclosed the act of the presiding officer but referred as incident and witnessed by Bernard Sudafi, an election observer and described as improper conduct as the presiding officer.

As such the allegation is that the presiding officer Ezekiel Obimae was an active Campaign Manager and agent of the 1^st Respondent and he forcefully persuaded Ms Agasia to vote for the 1^st Respondent. And the honest is on petitioner to prove these allegations.

Basically with the first issue, the Petitioner’s evidence is that the presiding officer campaigned and attended a campaign session at the school where the presiding officer is teaching. And the 1^st Respondent’s was a former CEO of the presiding officer

There is no evidence that Ezekiel Obimae had campaigned for the 1^st Respondent. And with attendance of campaign by him of the 1^st Respondent at the school, there should not a problem as it is the school he was living or a teacher and as a voter he is entitled to attend any campaign of any candidates for West Kwaio Consistency.

With the second issue, Counsel Fakarii submitted that there were two illiterate persons and the election officials provided assistance to them. They were Ms Agasia with sworn statement (under her name) filed on 15^th July 2019 and Tome Garitoó with sworn statement filed 15^th July 2019.

The evidence from the presiding officer Ezekiel Obimae is that these two persons were illiterate and needed assistance. For Ms Agasia, she was explained the process of election but she marked the ballot paper outside of her preferred candidate’s box. Presiding officer gave her tendered ballot paper and she marked it correctly according to her preferred candidate and handed it back to the presiding officer.

As noted, another Tome Garitoó was illiterate and needed assistance. The evidence from presiding officer Ezekiel Obimae and officials that he was explained the process. This voter Tome Garitoó had placed his mark or fingerprint on his preferred candidate’s symbol and so the presiding officer had to give Tome Garitoó a tendered ballot paper and then correctly marked for his preferred candidate.

On this ground 5, I am satisfied that Ezekiel Obimae (presiding officer) was not a Campaign Manager or agent of the 1^st Respondent and both voters Ms Agasia and Tome Garitoó were assisted and voted according to the election process and so there was no irregularity on part of the presiding officer and his officials.

The Grounds 1, 4 and 5 in the election petition have failed and accordingly the petition is dismissed.

^[1] Maetia v Dausabea [1993] SBHC 29 and Fono v Fiulaua [2011] SBHC 6; HCSI-CC 335 of 2010
^[2] Civil Case No. 254 of 2019
^[3] Civil Case No. 296 of 2019

High Court of Solomon Islands

Daufanamae v Fika [2020] SBHC 15; HCSI-CC 267 of 2019 (26 March 2020)