Tuasulia v Iduri [2020] SBHC 21; HCSI-CC 286 of 2019 (31 March 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Tuasulia v Iduri
Citation:
Date of decision:	31 March 2020
Parties:	John Alfred Tuasulia v Sam Iduri, Returning Officer
Date of hearing:	10 to 17 March 2020
Court file number(s):	286 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird PJ
On appeal from:
Order:	Allegation 9 against the First Respondent is dismissed Allegation 5 against the First Respondent is dismissed Mr. Sam Iduri is the duly elected Member of Parliament for West Kwara’ae Constituency In accordance with section 111 (5) of the Electoral Act 2018 and Rule 35 (1) of the Electoral Petition Rule 2019, the court will give a certified of its decision to the Electoral Commission, Governor General and the Speaker of Parliament due course Cost against the Petitioner
Representation:	Mr. D Lidimani for the Petitioner Mr. g Suri for the First Respondent Ms. F Fakarii for the Second Respondent
Catchwords:
Words and phrases:
Legislation cited:	Electoral Act 2018, s 126 (1) (b), Electoral Act 2018, s11 (5), Electoral Petition Rules, Rule 35 (1), Black’s Law Dictionary
Cases cited:	Temahua v Vagara cc 289/2019

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 286 of 2019

JOHN ALFRED TUASULIA
Petitioner

V

SAM IDURI
First Respondent

RETURNING OFFICER for West Kwara’ae Constituency
Second Respondent

Date of Hearing: 10 to 17 March 2020
Date of Judgment: 31 March 2020

Mr. D Lidimani for the Petitioner
Mr. G Suri for the First Respondent
Ms. F Fakarii for the Second Respondent

JUDGMENT IN AN ELECTION PETITION

Bird PJ:

1. The Petitioner was a losing candidate for the West Kwara’ae constituency during the 2019 National General Election. He filed an election petition against the 1^st and 2^nd Respondents on the 20^th May 2019.
2. At the commencement of the hearing of this matter, Ms. Fakari’i of counsel for the 2^nd Respondent was excused from further attendance as there was no direct allegation made against the 2^nd Respondent.
3. The petitioner’s petition originally contained nine grounds. As the matter progressed in court, grounds 1, 2, 3, 4, 6, 7 and 8 were abandoned. Only grounds 5 and 9 were pursued in court when the matter was heard.
4. A total of 8 candidates had contested the West Kwara’ae Constituency. The results as published in the Gazette on the 17^th April 2019 were as follows:
   1. Sam Iduri 1,996 votes
   2. Alfred Tuasulia 1,608 votes
   3. Clement Oikali 1,440 votes
   4. Davidson Ngwaeramo 1.394 votes
   5. Bernard Gale 1,394 votes
   6. Francis Lomo 487 votes
   7. Charles Dausabea 241 votes
   8. Robert Lafisi 56 votes
5. Ground 5 of the petition alleges that on polling day at Takwaodo Polling Station, Eddie Manukwao, a Campaign Manager of the 1^st Respondent urged certain queuing voters to vote for the 1^st Respondent.
6. Ground 9 of the petition further alleges that on 19^th March 2019 at Tiuni Primary School, Billy Timay, the Headmaster and a Campaign Manager of the 1^st Respondent promised at the School’s PTA meeting, 80 pieces of masonite for the school if his candidate is returned at the election.

The allegations- Ground 9

7. In this judgment, I intend to deal with ground 9 first in accordance with the sequence of evidence presented in court by the petitioner.
8. The petitioner relied on the evidence of 6 witnesses in support of this allegation. Before going through the evidence, I must remind myself that the standard of proof in election petition cases is that which is stated by the Honourable Chief Justice in the case of Temahua v Vagara- CC 289 of 2019. The burden of proof must be to the entire satisfaction of the court. It is burden which is higher than the civil standard but lower than the criminal standard.
9. The crux of the petitioner’s evidence in this matter is that on 19^th March 2019, at Tiuni Primary School, Billy Timay, a Campaign Manager of the 1^st Respondent told parents to vote for the 1^st Respondent and 80 pieces of Masonite would be collected by the school after 3^rd April 2019.
10. There was much contention on both sides about the content of the minutes of the PTA meeting dated 19^th March 2019. The contention surrounds the editing of the minutes to an extent that a video clip was presented in court by the First Respondent on that issue.
11. The simple issue that both counsel can agree to, is that there was in fact a statement made by Mr. Timay on 19^th March 2019 at Tiuni Primary School about the possibility of getting a number of pieces of Masonite from the constituency warehouse for the use of the school. It matters not whether or not the minutes were edited.
12. This court will have to determine how the statement made by Mr. Timay could be connected to the First Respondent. The petitioner had sought to say that Mr. Timay is a Campaign Manager of the 1^st Respondent.
13. The petitioner had called evidence to show that Mr. Timay was part of the 1^st Respondent’s Ward 4 sub- committee during his previous term in Parliament. He was seen taking part in the 1^st Respondent’s campaign launching at Boboilangi Village prior to the 2019 election.
14. Mr. Timay gave evidence in court. He admitted being part of the 1^st Respondent’s Ward 4 sub- committee in the last Parliament. He took part in the Boboilangi Village launching prior to the 2019 election. Mr. Timay had also admitted in cross examination that he transported the 1^st respondent’s CDO to Gwaunaoa School to issue payment for school fees after the 2019 general elections.
15. Election bribery is provided for under section 126 of the Electoral Act 2018. It provides:
    • (1) A person commits an offence if:
      • (a) the person directly or indirectly promises, offers or gives a benefit to another person; and
      • (b) the person does so with the intention of influencing the other person to:
        • (i) vote or refrain from voting at an election; or
        • (ii) vote in a particular way at an election; or
        • (iii) influence a third person to vote, refrain from voting or vote in a particular way at an election.
16. Bribery is defined in Black’s Law Dictionary as the corrupt payment, receipt or solicitation of a private favour for official action. The Oxford Law Dictionary defines it as a promise, offer or to give something, often illegally, to a person to procure services or gain influence.
17. I now turn to the discus the veracity of the evidence of the petitioner and his witnesses together with the evidence of the 1^st respondent’s witnesses.
18. It can be taken as a fact that Mr. Timay, the Headmaster of Tiuni Primary School had made suggestions about the possibility of acquiring a number of Masonite pieces for the schools use during a PTA meeting held on the 19^th March 2019.This court is not concerned about whether or not the suggestion was recorded in the minutes produced in court.
19. In respect of the allegation, there was indeed some mention of the 80 pieces of Masonite for the school in the PTA meeting of the 19^th March 2019. It is nonetheless noted that no evidence was adduced by the petitioner to prove that the parents who attended the said PTA meeting had been influenced to vote or refrain from voting on election day. There was no evidence adduced to prove that the parents had voted in a particular way during the election. There was also no evidence to prove that the suggestion by Mr. Timay had influenced a third person to vote, refrain from voting or vote in a particular way during the election.
20. The petitioner had sought to prove that Mr. Timay was an agent of the 1^st Respondent. He was appointed by the 1^st Respondent to be his polling agent at Takwaodo polling Station on election day, being the 3^rd April 2019. The incident complained of, happened on 19^th March 2019. He also took part in the 1^st Respondent’s campaign launching at Bobiolangi Village before election. It was also alleged that after the election. Mr. Timay had provided transport for the 1^st Respondent’s CDO to pay for children’s school fees at Gwaunaoa School.
21. On the above evidence, the court can conclude that Mr. Timay was in fact the 1^st Respondent’s agent for the 2019 national general election.
22. After having found that Mr. Timay was an agent for the 1^st Respondent, I will now discuss the effect it has on s.126 of the Electoral Act 2018. One of the elements that must be proved by the petitioner in election bribery cases is that there must be a connection of the act complained off to the 1^st Respondent. Subsection (1) of s. 126 is specific in that a person commits an offence if he directly or indirectly promises, offers or gives a benefit to another person.
23. In my respectful view that notwithstanding the fact that Mr. Timay is the 1^st Respondent’s agent, there is a missing link in the petitioner’s argument on his ground 9. There is no evidence adduced in court to prove that what was said by Mr. Timay during the PTA meeting on the 19^th March 2019 was endorsed or authorised by the 1^st Respondent.
24. Apart from the above reason, the court also holds that the petitioner has not proved to the entire satisfaction of this court the elements stipulated in s.126 (1) (b) of the Electoral Act 2018.
25. Taking into account what has been said in paragraphs 19, 23 and 24 above, the allegation of election bribery against the 1^st respondent is not proved to the entire satisfaction of the court and is therefore dismissed.

The allegation- ground 5

26. The final allegation against the 1^st respondent is referred to as ground 5. That ground alleges that on polling day and within the perimeter of Takwaodo Polling Station, Eddie Manukwao a Campaign Manager of the 1^st respondent, urged certain queuing voters to vote for the 1^st respondent. Five witnesses were called by the petitioner in respect of the allegation.
27. The summary of the petitioner’s evidence is that Eddie Manukwao who was alleged to have been the 1^st respondent’s campaign Manager was urging queuing people including Wilson Somae and Timothy Egeta to vote for the 1^st respondent. Lawrence Mimidi was also said to have been in the same queue at about 10.00 am.
28. The allegation was denied by the 1^st respondent and his witnesses. Lawrence Mimidi denied voting in the morning on election day. He told the court that he went to vote in the afternoon. Mr. Manukwao told the court that he was at the Takwaodo Polling Station in the morning of election day. He was the Queue Manager. He went out for lunch and admitted talking with certain people including Lawrence Mimidi. He denied urging people to vote for the 1^st respondent.
29. I have also had the opportunity to peruse the sketch plan of the Takwaodo Polling Station and had noted the various spots indicated in the said plan. The first spot is the area marked green and indicated as number 3 in the sketch. The next spot is the area marked X outside of the entrance to the polling station.
30. The evidence of the petitioner is that Mr. Manukwao urged Wilson Somea and Timothy Egeta (at the point marked X on the sketch) to vote for the 1^st respondent. Wilson Somea told the court that he and Lawrence Mimidi were about to join the queue outside the entrance when they were approached by Eddie Manukwao.
31. The same Wilson Somea had signed a joint sworn statement with Timothy Egeta and filed in this matter on the 14^th October 2019. That sworn statement was tendered in court as evidence and marked exhibit P7.
32. In paragraph 2 of the joint sworn statement, it stated that both of them (Wilson Somea & Timothy Egeta) were at the entrance of the Takwaodo Polling Station. Mr. Manukwao approached them and urged them in Baegu language to vote for the 1^st respondent. There was no mention of Lawrence Mimidi also being present at the material time in the joint sworn statement.
33. In court, Mr. Somea did not state that Timothy Egeta was with him when he was approached by Mr. Manukwao. This is a glaring inconsistency that remains unexplained by the petitioner.
34. The court had noted and had taken as fact, that there was a wall made of thatched coconut leaves separating the main entrance to the polling station and the actual voting area. That wall would make it quite difficult to see from the point marked 3 to the point marked X.
35. From this it follows that the evidence of Seferino Talu should be treated with caution. At point 3 where he was seated, it would be difficult for him to see people talking at point X.
36. Taking into account the state of the evidence from Mr. Talu, and the glaring inconsistency stated in paragraphs 31, 32 and 33 above, I conclude that the petitioner’s allegation in ground 5 is not proved and is dismissed.

Orders of the court

1. Allegation 9 against the First Respondent is dismissed.
2. Allegation 5 against the First Respondent is dismissed.
3. Mr. Sam Iduri is the duly elected Member of Parliament for West Kwara’ae Constituency.
6. In accordance with section 111 (5) of the Electoral Act 2018 and Rule 35 (1) of the Electoral Petition Rules 2019, the court will give a certificate of its decision to the Electoral Commission, Governor General and the Speaker of Parliament in due course.
5. Cost against the Petitioner.

THE COURT
Maelyn Bird
PUISNE JUDGE