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Aqarao v Philip [2020] SBHC 22; HCSI-CC 283 of 2019 (9 April 2020)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Aqarao v Philip


Citation:


Date of decision:
9 April 2020


Parties:
Jonathan Zama Aqarao v Danny Philip, Attorney General


Date of hearing:
10-15 February 2020 (Trial) 1 April 2020 (Closing Submission)


Court file number(s):
283 of 2019


Jurisdiction:
Civil


Place of delivery:



Judge(s):
Keniapisia PJ


On appeal from:


Order:
1. In view of the foregoing findings and conclusions, the petition is dismissed with cost on standard basis. I will assess cost.
2. I declare, that Mr. Danny Philip was the duly elected MP for SNGRTC. 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.


Representation:
Mr. D Nimepo and C Lagobe for the Petitioner
Mr. W Togamae and J Dudley for the First Respondent
No Appearance for the Second Defendant


Catchwords:



Words and phrases:


Legislation cited:
Electoral Act,s124,s 5, s62, s126 (1) (i) (ii) & (iii) , s127


Cases cited:
Fono v Fiulaua [2011] SBHC 6, Temahua v Vagara, Philip v Auga [2019] SBHC 91, Efona v Fugui (Unreported Judgment delivered14/02/2020), Bae v Ramofafia [2019) SBHC 89, Alisae v Salaka [1985} SBHC 6, Ha’apio v Keniasina [2011] SBHC 12, Sikua v Vokia (Unreported Judgment dated 14/02/2020).

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case No. 283 of 2019


JONATHAN ZAMA AQARAO
Petitioner


V


DANNY PHILIP
First Defendant


ATTORNEY GENERAL
(Representing the Registration Officer, Revising Office and Returning Officer, South New Georgia and Tetepare Constituency)
Second Defendant


Date of Hearing: 10-15 February 2020(Trial) 1 April 2020 (Closing Submission)
Date of Judgment: 9 April 2020


Mr. D Nimepo and C Lagobe for the Petitioner
Mr. W Togamae and J Dudley for the First Respondent
No Appearance for the Second Defendant

JUDGMENT IN AN ELECTION PETITION

INTRODUCTION

  1. Solomon Islands went to the polls in a General Election (“GE”) on 3rd April 2019. For South New Georgia, Rendova and Tetepare Constituency (“SNGRTC”), Petitioner Mr. Aqarao and First Respondent Mr. Philip were 2 of 4 candidates that contested this seat. Mr. Philip was returned duly elected Member of Parliament (“MP”) for SNGRTC. Mr Philip won the election by a total casted votes of 1,577 ahead of Mr. Aqarao, who polled 750 votes.
  2. Mr. Aqarao, filed this petition on 17/05/2019. Court allowed an amended petition to be filed on 28/10/2019. This followed 1st Respondent’s application to dismiss the petition. Application succeeded partially. Court struck out one set of allegations in the original petition at paragraphs 7.12 – 7.19. The struck-out allegations relate to Mr. Philip purchasing 3 drums of petrol, at Alwyn Bezo’s petrol depot at Ughele, Rendova. And distributing the fuel to transport supporters and voters to various polling stations. The petrol purchase allegations were struck out, for not sufficiently disclosing particulars, of unlawful transaction (s).
  3. The remaining allegations are on undue influence, abuse of electoral process and bribery against the 1st Respondent and or his agents. Undue influence allegations are pleaded in paragraphs 8.1 – 8.7 of amended petition. Abuse of electoral process and undue influence allegations are at paragraphs 8.8 – 8.11. Bribery allegations are pleaded in paragraphs 8.18 - 8.34. Strictly, abuse of electoral process allegations, can fit neatly under undue influence and or bribery categories, as rightly submitted by counsel Togamae. I agree with this view, because there is no offence like abuse of electoral process to be found in the new Electoral Act 2018.

RELIEFS SOUGHT

  1. Petitioner seek the ultimate relief that owing to the undue influences and bribery practices, alleged against the 1st Respondent and or his agents, 1st Respondent was and is incapacitated from serving in Parliament. And that the election and return of the 1st Respondent were and are void. Court should declare the election of the 1st Respondent invalid, should the allegations, be proven to the court’s satisfaction.

STANDARD OF PROOF – A HIGH ONE – COURT’S ENTIRE SATISFACTION

  1. It is trite law and counsel agreed that the standard of proof in election petition 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].
  2. With a high standard of proof in my mind, I now turn to look at the incidences of undue influence and bribery practices alleged in the amended petition – minus the one set of struck out allegations. In Fono case and followed in subsequent cases, since 2011, for specific bribery (under Section 66 (1) standalone from Section 66 (2) – of the Repealed Act), if a single incidence of specific bribery is proved against the 1st Respondent and or his agent, that is enough to invalid his election to Parliament. Though there is no equivalent provision in the New Act, Chief Justice Palmer put all doubts to rest, that, the law in Fono is still the applicable law. Chief Justice Palmer reasoned as follows:
“To put it in another way, if bribery, as an election offence under Section 126 of the Act[3], on conviction can result in a fine or imprisonment and a disqualification for 5 years from date of conviction, but not a voidable election, that result could be described as bizarre”[4]

UNDUE INFLUENCE BY CHURCH AND CULTURAL LEADERS – FIRST RESPONDENT USED CHURCH AND CULTURAL LEADERS AT 2 OF HIS LAUNCHING CAMPAIGN PROGRAMS

  1. Petitioner alleged that 1st Respondent engaged church and cultural leaders to unduly lure voters to vote for him. Five (5) incidences of undue influence were alleged at paragraphs 8.1 – 8.7 of the amended petition. Petitioner alleged that, at two of his launchings, Mr. Philip used cultural and church leaders to issue “orders” to their respective followers to vote for Philip. First launching took place at Ughele, Buruku community high school compound, on 25th March 2019. Second launching at Baniata, on 27th March 2019. First Respondent denied these allegations (amended defence), saying he was not privy to and had no knowledge about using church and cultural leaders to lure voters to vote for him. I will take turn to look at the 5 specific undue influence allegations, in terms of the evidence for and against. And in terms of the applicable electoral law, where necessary.

Ground 1 - Order from Seventh Day Adventist Pastor Allan Paza at Ughele launching

  1. Petitioner alleged that during the 1st Respondent’s launching at Ughele, Buruku community high school compound, Pastor Allan Paza, of the Seventh Day Adventist Church (“SDA”) led the opening devotion. At the same time, Pastor Allan Paza conveyed the “order” from SDA that all SDA community members, must vote for Danny Philip. First Respondent deny the allegation saying Pastor Allan Paza, never conveyed any “order” from SDA.
  2. Petitioner’s evidence came from Mr. Wasi Mulesae. Mr Wasi, an attendee at the Ughele launching, gave evidence through sworn statement (“ss”). And cross examined in court. Under cross examination, Mr. Wasi gave evidence that he followed the 1st Respondent to all his launchings, prior to the election. Mr. Wasi admitted in cross examination, he followed the 1st Respondent as “spy” for the Petitioner, in answer to Counsel Togamae’s question.
  3. Mr. Wasi’s evidence is that, on 25/03/2019, Danny Philip conducted his launching at Ughele, Buruku community high school compound. At the launching, Pr. Allan Paza conducted the devotion to open the campaign or launching program. Upon conclusion of the devotion, still standing on the stage, Pastor Allan Paza gave “orders” for SDA community members to vote for Danny Philip.
  4. Pastor Allan Paza gave evidence for the 1st Respondent. Pastor Allan Paza denied making any “order” for SDA followers to vote for Danny Philip. And further said that the position of SDA is for people to choose their own candidate. And not for church leaders to force them.
  5. Two other senior Ughele community leaders, gave evidence for the 1st Respondent. Retired SDA Pastor Samuel Sovo, was one of the speakers at the Ughele launching. Retired SDA Pastor Sovo, confirmed that Pastor Allan Paza led the devotion. When pressed by the court, if he recalled Pastor Allan Paza “ordering” SDA followers to vote for Danny Philip, Pastor Sovo denied hearing such “order”. When pressed by the court, what the SDA’s position is on election affiliations, the retired pastor has this to say: “As a pastor, my responsibility is to be fair to all and to respect their choices and right to vote for the candidate of their choice. As a church, we based our stand on God’s word. God gave power to people to make choices”.
  6. Chief Simba Paza, was one of the speakers at the Ughele launching on 25/03/2019. I asked him to recall what role Pastor Allan Paza played at the launching. Chief Simba Paza recalled, Pastor Allan Paza’s role was to lead the opening prayer (devotion). Chief Simba Paza recalled Pastor Allan Paza encouraging people to vote wisely. When court pressed Chief Simba Paza, if he recalls Pr. Allan Paza, making an “order” for SDA followers to vote for Danny Philip, he denied, saying he could not recall hearing Pr. Allan Paza said that.
  7. I had to clarify from Mr. Wasi if the “order”, he meant, came from SDA highest authority (head office in Honiara). His answer was “No”. It became clear that what he meant by “order” from SDA, is actually “order” from the Ughele SDA local church leadership or pastoral team. But there was no one from the Ughele SDA, local church pastoral team or leadership to confirm that such “order” had actually come from the Ughele, SDA - local church authority. It became evident under cross examination in court, that what Mr. Wasi meant as “order” from SDA, was the “order” had come from an SDA Pastor. And normally SDA pastors are very influential people. So their “orders” really come from the SDA, by virtue of their respected church position (s).
  8. I am not entirely satisfied that Pr. Allan Paza gave “orders” for SDA adherents to vote for 1st Respondent. There is lack of corroboration by Petitioner’s only one witness. First Respondent’s corroborated evidence from 3 witnesses: SDA Pastor Allan Paza, retired SDA Pastor Samuel Sovo and Chief Simba Paza, is enough to convince the Court that Pr. Allan Paza gave no “orders” for SDA followers to vote for Danny Philip. Even if I were to find that Pr. Allan Paza had given such an “order”, it was expected at such a launching, for things said and done to promote, advance and influence votes for the candidate, in this case, Danny Philip’s candidacy. There is no civil and political law to stop that, except may be church policies. And I would not be wrong to say most church policies would remain neutral on which candidate to support. And if Pr. Allan Paza were to make such an “order”, it could not be said on the evidence, the “order” came from SDA (local church level or national church level). It could have come from the pastor himself. And could be perceived as being derived from his position of power and influence in the church. This is the reasoning Counsel Nimepo seemed to have placed great emphasis on, in his line of questions and in submissions. For example, Counsel Nimepo was asking questions like: “So you are a pastor?” “Pastors are very influential people?” “Pastors are very highly respected people by virtue of the positions they hold in Church?” etc.
  9. There is no evidence before the court that members of the SDA were unduly influenced[5] either by violence, intimidation, threat or physical restraint by the alleged “order”. Even, Mr. Wasi, an SDA adherent, in answer to court’s question, confessed that he was not induced by what Pr. Allan Paza said, because, he supported the Petitioner. And admitted, was Petitioner’s spy on Danny Philip’s campaign launchings. This allegation is dismissed, as there is no evidence of a violence, intimidation, threat or physical restraint[6] on SDA voters, attempting to influence SDA voters, to vote against their “free will” because of what Pr. Allan Paza may have said (“order”). Yet these are the 4 elements to proof for the offence of Undue Influence, under Section 127 of the Electoral Act 2018 (See Philip v Auga [2019] SBHC 91; HCSI-CC 254 of 2019 (26th November 2019)).

Ground 2 - Order from Retired SDA Pastor Samuel Sovo at Ughele launching

  1. Petitioner also alleged that at the Ughele launching; retired SDA Pastor Samuel Sovo also went on stage. And spoke in support of the “orders” from Pr. Allan Paza, for members of the SDA to vote for Danny Philip. Again 1st Respondent deny this in his amended defence. And says Pr. Sovo never made any such call-in support of Danny Philip. Petitioner’s witness is again Mr. Wasi. Pastor Allan Paza, retired Pastor Mr. Sovo and Chief Simba Paza gave evidence for the 1st Respondent. They all deny retired Pastor Sovo making such “order” for SDA followers to vote for Danny Philip. Pastor Allan Paza, Chief Simba Paza and retired Pastor Mr. Sovo evidences - all corroborate on the fact that Pastor Samuel Sovo spoke at the launching to thank and acknowledge Danny Philip for his assistance to Ughele community and SDA. Asked why he did this, Pastor Sovo’s answer was: “Danny was the outgoing MP. And may not return after the election. So it was appropriate that words of appreciation be made to Danny on behalf of Ughele community and Ughele SDA”.
  2. I am not entirely satisfied that Pr. Samuel Sovo, gave “orders” for SDA followers to vote for Danny Philip. There was lack of corroboration by Petitioner’s only one witness, up against 1st Respondent’s corroborated evidence, of denial, by 3 witnesses. Even, if I were to find that retired Pr. Sovo made such “order”, it was expected at such launching or campaign program, for things said and done, to promote, advance and influence voters, for the candidate, in this case, Danny Philip. There is no civil and political law to stop pastors supporting a particular candidate, except may be church policy. I also repeat what I say in underlined words in paragraph 15, in regards to allegation against Pastor Sovo here. There is no evidence before me on voters’ violence, intimidation, threat or physical restraint of SDA voters, connected to what retired SDA Pastor Sovo may have said. Even Mr. Wasi, an SDA follower, was not convinced or felt violence, intimidated, threatened or physically restraint by what Pastor Sovo may have said, because he was a full supporter of the Petitioner (spy). This allegation is dismissed, as there is no evidence of a violence[7], intimidation[8], threat[9] or physical restraint[10] on SDA voters, attempting to influence SDA voters, to vote against their “free will” because of what SDA retired Pr. Sovo may have said (“order”). Yet these are the crucial 4 elements to proof in the offence of undue influence as alluded to above - (See Philip v Auga [2019] SBHC 91; HCSI-CC 254 of 2019 (26th November 2019)).

Ground 3 - Order from Reverend Bishop Sam Pedro of the United Church at Ughele launching

  1. Petitioner also alleged Reverend Bishop Sam Pedro, of United Church spoke on the stage and convey “orders” from United Church, for United Church followers to vote for Danny Philip. First Respondent again deny this allegation. Petitioner’s witness was again Mr. Wasi. Mr. Wasi said, he saw Reverend Bishop Sam on stage and heard him delivered a speech and “ordered” that all United Church followers must vote for Danny Philip. Reverend Bishop Sam was not called to give evidence. Counsel Togamae says, Reverend Bishop was on duty and not available to give ss at the material time of taking ss for the 1st Respondent.
  2. Pastor Allan Paza, Retired Pastor Sovo and Chief Simba Paza, all speakers at the Ughele launching gave evidence for the 1st Respondent. They all deny hearing Reverend Bishop Sam made any “orders” for United Church followers to vote for Danny Philip. Petitioner’s evidence failed, because no corroboration. But like I say elsewhere above, even if I were to find that Reverend Bishop Sam made such “orders”, it was expected, because this was Danny Philip’s launching. And is quite normal for things said and done, at such a campaign program to promote the image of the candidate doing the launching. There is no civil or political law to stop church leaders, who are voters themselves, from supporting a candidate of their choice. And from speaking at campaign rallies (Repeat my underlined words in paragraph 15, in respect of Bishop Sam’s allegation here). And there is no evidence before me that what Bishop said at the launching, had “unduly influenced” United Church voters in a violence, intimidation, threat or physical restraint manner and had induced United Church voters to vote for 1st Respondent against their “free will”. Even Mr. Kasu, whose evidence, Petitioner relied on to establish undue influence against Bishop or Danny, is mostly hearsay and not accepted. Mr. Kasu talked about words, he overheard from 2 women, having a heated argument. This allegation is dismissed, as there is no evidence of a violence, intimidation, threat or physical restraint on United Church voters, attempting to influence United Church voters, to vote against their “free will” because of what Bishop Sam may have said (“order”). Yet these are the 4 elements of undue influence offence, under Section 127 referred above - (See Philip v Auga [2019] SBHC 91; HCSI-CC 254 of 2019 (26th November 2019)).

Ground 4 - Order from Chief Simba Paza, at Ughele launching

  1. Petitioner alleged Chief Simba Paza, of Moka tribe, also went on stage and spoke in support of Danny Philip. That Chief Simba Paza gave “orders” for Moka tribal members to vote for Danny Philip. Petitioner’s witness is Mr. Wasi. Mr. Wasi said he attended the launching, saw Chief Simba Paza gave a speech on the stage and heard Chief Simba Paza gave “orders” for Moka tribe members to vote for Danny Philip. First Respondent deny the allegation. And deny Chief Simba Paza made such “orders”, at the launching.
  2. First Respondent’s witnesses are Chief Simba Paza, SDA Pastor Allan Paza and retired SDA Pastor Samuel Sovo. All 3 witnesses’ evidences revealed that Chief Simba Paza, went on stage and gave a speech in his capacity as Chief of Moka tribe and Chief of Ughele community, to acknowledge and welcome Danny Philip at the launching. But collectively, all of the 3 witnesses deny Chief Simba Paza gave “orders” for Moka tribe members to vote for Danny Philip. Petitioner’s evidence failed due to lack of corroboration, against 3 corroborated witnesses, for the 1st Respondent.
  3. But even if I were to find that Chief Simba Paza made “orders” for his Moka tribal members to vote for Danny Philip, this was the core business at the launching. That everything said and done at the launching, would go towards promoting support for Danny Philip’s candidacy. There is no civil or political law to stop a chief speaking at a campaign rally. There is no evidence before the court that members of Moka tribe were unduly influenced (violence, intimidation, threat or physical restraint) by what Chief Simba Paza may have said. Even Mr Wasi confessed to being a member of Moka tribe. But Wasi did not support Danny. Wasi was Petitioner’s supporter and spy at 1st Respondent’s launching. This allegation is dismissed, as there is no evidence of a violence, intimidation, threat or physical restraint on Moka tribe voters, attempting to influence Moka tribe voters, to vote against their “free will” because of what Chief Simba Paza may have said (“order”). Yet these are the 4 elements of the offence of undue influence under Section 127, referred above - (See Philip v Auga [2019] SBHC 91; HCSI-CC 254 of 2019 (26th November 2019)).

Ground 5 - Order from Reverend Bishop Sam of the United Church at Baniata launching

  1. Furthermore, Petitioner alleged, Reverend Bishop Sam Pedro (Bishop) also gave “orders” at the Baniata launching held, at 4:00 pm on 27/03/2019. That the Bishop gave “orders” for members of the United Church to vote for Danny Philip. First Respondent deny this allegation. And say in amended defence that the Bishop did not give such “order (s)”.
  2. Petitioner’s evidence again came from Mr. Wasi. Petitioner’s evidence will stand unchallenged, because Bishop was not called to challenge Wasi’s evidence. But I will not regard the “order” as a directive from the United Church authority (local or national) on the evidence before me. I would be happy to settle with the fact that Reverend Bishop was a strong supporter of Danny. That Bishop followed and spoke publicly in support of Danny Philip’s candidacy. And that he spoke in support of Danny’s candidacy at Baniata launching on 27/03/2019. That he made those supportive speeches in his personal capacity. But people would rightly perceive it as coming from his position of authority and influence in the United Church, by virtue of his being a Bishop. But not an “order” from the Church authority (local church level or national church level) on the evidence, before me.
  3. But what is wrong with a Bishop making public statements to support a candidate, of his choosing? What is unlawful about a Bishop doing that? What law or policy of the United Church, the Bishop has tampered with? What civil or political law the Bishop has tampered with?
  4. It is not wrong nor unlawful for a Bishop to speak at a campaign launching, because a campaign launching is aimed at promoting the candidate, who is the host for the launching (Danny Philip). It would be the order of the day for speakers and attendees to speak and utter words in support, of the candidate doing the launching. There are no civil or political laws to stop a Bishop from doing that. And there is no church canon or policies that the Reverend Bishop has tampered with, that I am aware of or submitted on by counsel. Even if Bishop had tampered with any church canon or policies, this Court will not pass verdict on that. But importantly, there is no evidence before me, that United Church followers or voters were “unduly influenced” (violence, intimidation, threat or physical restraint) to vote by what Bishop may have said at the Baniata launching. This allegation is dismissed, as there is no evidence of a violence, intimidation, threat or physical restraint on United Church voters, attempting to influence United Church voters, to vote against their “free will” because of what Bishop Sam may have said (“order”). Yet as alluded to above, these are 4 elements of undue influence - (See Philip v Auga [2019] SBHC 91; HCSI-CC 254 of 2019 (26th November 2019)).
  5. Counsel Nimepo submitted that the church and cultural leaders, have appeared and spoke at a launching environment. Their presence alone, was enough to influence people to vote for Danny, because they command a respected status in society. Whilst the assumption may be correct, it does not constitute a prima facie violation of any political or civil law, let alone the Electoral Act 2018. Fugui case[11] renders no assistance in favour of Petitioner. Court did not say Pastor Moli’s presence alone, had influenced voters, to vote for Fugui, in a manner, prejudicial of the Electoral Act 2018. Court actually dismissed allegation on Pastor Moli’s involvement in bribery.

Ground 6 - $1,000.00 to bribe youths at Sasavele village

  1. Petitioner alleged that, on or around 27/3/2019, Danny Philip met Ronald Ford behind the Malaria office opposite to the Forestry office in Munda, Western Province. And Danny gave Ronald Ford $1,000.00. In giving the money, Danny asked Ronald to give out the money to youths at Sasavele village, to lure them to vote for Mr. Danny Philip. And that the said Ronald did as instructed. First Respondent deny this allegation and say the facts were misrepresented and not true, in his amended defence.
  2. Petitioner’s only evidence on this allegation came from Mr. Ronald Ford. In ss evidence, Ronald Ford, says that, about 5:15 pm on 27/03/2019, he met Danny at the Malaria office, opposite to Forestry office, in Munda, Western Province. They have conversations about, the election, whereby Danny told Ronald not to worry, as Danny will use money and will win the election. Then Danny handed to Ronald $1,000.00 to give to Sasavele youths to pay for their smokes, witnessed, by one named Robert Gasa. Robert Gasa gave ss evidence to corroborate Mr. Ford, but did not turn up to be cross examined and his evidence was not admitted. From Mr. Ford’s ss evidence, the impression, I got initially was, Danny Philip, gave $1,000.00 to Ronald Ford, to give to Sasavele youths, to buy their smoke, in order to bribe them.
  3. But in cross-examination, my initial impression drastically changed, because Mr. Ford basically agreed to every fact put to him in cross – examination by Counsel Togamae and the Court’s enquiry. Mr. Togamae and court’s enquiry attracted the following facts in evidence, agreed to by Mr. Ronald Ford: -
    1. Mr. Ford and Danny Philip knew each other very well. Mr. Ford was one tourism business operator that benefited greatly from government funding during Danny’s tenure in office.
    2. Danny gave $1,000.00 to Ronald to give to youths at Sasavele, to buy smoke, battery and fuel - all for the purpose of diving fish for Danny’s launching that will take place at Nusahope. That Danny and Ford arranged for Danny to give $1,000.00 to Sasavele boys to dive for fish to feed people who will come to the launching, at Nusahope. Danny trusted Ford, because they knew each other very well – a fact not denied by Ford.
    3. That Danny and Ford were at a meeting at Titiru lodge, whereby there was discussion about the Nusahope launching.
  1. Ford says Danny Philip gave him $1,000.00 in Munda, at 5.15 pm, on 27/03/2019. This was impossible, because, as the evidence for the Petitioner also shows, at 4 pm on 27/03/2019, Danny was at Baniata, on Rendova, doing his second launching[12].
  2. On Court’s further enquiry, Mr. Ford says Danny’s launching at Nusahope was on 21/03/2019. This corroborated Danny evidence, under cross examination. And Danny says he met Ford on 12/03/2019, not 27/03/2019. Danny gave $1,000.00 to Ford via his Security Guard, because he says, there were a lot of people around looking. Court believed Danny met Ford on 12/3/2019, prior to 21/03/2019, the day Danny had scheduled his launching to take place at Nusahope. This make more sense logically. The $1,000.00 was to fish for this event (21/03/2019- launching) - (agreed to by Danny and Ford – in oral evidence under cross examination). So, logically, the $1,000.00 must be given before 21/03/2019. Not on 27/03/2019, as Ford says in ss evidence, to lure Sasavele youths to vote for Danny. Court concluded that Danny gave $1,000.00 to Mr. Ford on 12/03/2019, to arrange for Sasavele boys to dive for fish, for Danny’s launching, scheduled to take place at Nusahope on 21/3/2019.
  1. Now counsel Nimepo tried to submit that Ford deny Danny gave him $1,000.00 for battery, smoke and fuel for Sasavele youths to dive for fish for Nusahope launching. So Mr. Togamae’s submission that the $1,000.00 was for battery, smoke and fuel to dive for fish was without any evidence adduced at trial. I had to revisit my records. My records show that Ford just basically agreed to everything Mr. Togamae put to him under cross examination, the essence of which, I covered above (paragraph 31 (i), (ii) and (iii)). Similarly, Ford just basically agreed to everything Mr. Nimepo put back to him in re-examination. So is no surprise that Mr. Nimepo made this submission. This ground fails and is dismissed, because the witness changed his story from the ss evidence, to cross examination and re-examination. The story on bribery is not made out on a high standard of proof. Story on dive for fish is more trustworthy in my mind, because Danny and Ford evidences, in cross examination, in essence, seem to tune together well (preceding paragraph 31 (v)).

Ground 7 - Assurances by majority registered voters to vote for the Petitioner - destroyed by corrupt practices occasioned by 1st Respondent and or his agents and supporters

  1. Petitioner alleged that majority of registered voters in the constituency, have assured him or his campaign leaders of their support, because the 1st Respondent had done nothing to develop the constituency, during his tenure in Parliament. But the majority support was destroyed by corrupt practices, by the 1st Respondent and or his agents. Corrupt practices of undue influence, intimidation, bribery and abuse of process. First Respondent’s corrupt practices had deprived the constitutional rights of the majority registered voters, in that they were not free to exercise, their voting rights, in a free, fair and democratic election. First Respondent deny this allegation and said, it was a statement of opinion, without hard facts to proof, in his amended defence.
  2. Petitioner’s witness for this rather generalised allegation, is Mr. Joseph Lamia. Mr. Joseph Lamia is one of the Petitioner’s campaign leaders. Mr. Lamia became Petitioner’s counting agent, at Gizo, during counting of election results. Mr. Lamia says that prior to polling day on 3 April 2019, Petitioner’s campaign team or leaders had worked out a “prospective forecast of the results”, based on registered voters, who have expressed support for the Petitioner. Supporters have confirmed to Petitioner’s leaders that they will vote for the Petitioner.
  3. Mr. Lamia also mentioned in his ss evidence that they (Petitioner’s campaign leaders) have received confirmations from registered voter supporters at various polling stations, as follows: -
    1. Hopongo polling station (90% of Registered Voters);
    2. Ughele polling station (90% of Registered Voters);
    3. Aghagana polling station (90% of Registered Voters);
    4. Lokuru, Vanikuva, and Bango Pingo polling stations (40% of Registered Voters) and
    5. All South New Georgia polling stations (40% of Registered Voters).
  4. I asked Mr. Lamia, how they were able to come up with the percentage data predictions. And his answer was: “All of the Petitioner’s campaign leaders have talked with registered voters in their respective polling stations. The percentage data reflects the assurances registered voters gave to Petitioner’s campaign leaders.” This is hearsay[13] evidence. And cannot be accepted in a court of law. Witness Lamia is telling the court, what campaign leaders, have heard from the majority of registered voters, who supported the Petitioner. Mr. Lamia’s evidence would be hearsay, because those majority supporters have not come to Court to confirm what Mr. Lamia said.
  5. It is very hard for the Petitioner to proof in evidence the material fact pleaded and the associated issues aroused. The material fact would be: “Majority of registered voters in SNGRTC have given assurances of their support for the Petitioner, at the 2019 GE.” The corresponding issue would be: “Did the majority of registered voters in SNGRTC gave assurances of their support for the Petitioner?” “And if so what corrupt practices Danny made to those majority voters, which caused them not to vote for the Petitioner?”
  6. To be able to succeed, Petitioner must bring to court the majority registered voters who gave assurances of their support to the Petitioner in SNGRTC. They would verify Petitioner’s uncorroborated evidence (which is mostly hearsay). It will be an impossible game to play. When the majority are in court (if at all possible), we will ask them: “Did you give assurance that you will vote for the Petitioner on 3rd April 2019 GE? And why you did not vote for the petitioner as you promised?”
  7. This is not an allegation worthy of trial, because it is impossible to proof from day one. I can only refer to this allegation as an “election defeat lamentation”. And is accordingly dismissed. I am not entirely satisfied that this allegation is made out on the evidence. I am not too sure, if the method used to collate the forecast data, was trustworthy. At its best, it is a biased strategy employed to give indication, assurance and comfort to Petitioner’s campaign team. At its worst, it is a marketing strategy, in an unpredictable political environment, prone to error.

Ground 8 - John Nokala unduly influenced Idagula to vote for Danny Philip

  1. Petitioner alleged that on April 3 2019, the polling day, John Nokala forced his elderly mother namely Idagula (83 years) to cast her ballot for Danny. This is in spite of the fact that Idagula had already confirmed her intention to vote for the Petitioner. John Nokala, in the absence of Idagula’s guardian son Mr. Hobeta Aku, insisted that Idagula must go immediately and cast her ballot at the polling station. Idagula helplessly agreed to John Nokala’s insistence and Idagula accompanied John Nokala to the polling station. At the polling station John Nokala assisted to search Idagula’s name in the voters list, then took a piece of paper and wrote down the number correlating to Danny Philip’s number on the ballot paper. John Nokala then advised Idagula (their mother) that she must vote Danny Philip. And if the polling station officers, ask who she will vote for, she must give them the piece of paper which has Danny Philip’s details on it. John Nokala is one of the popular supporter and camp leaders of Danny Philip. First Respondent deny the allegation in amended defence, saying, he had no knowledge of what occurred.
  2. Petitioner gave evidence to support this allegation through one named Hobeta Aku. Mr Hobeta’s evidence on the crucial facts to establish this allegation are mostly “hearsay evidence”. The issue is: “How do we know, Idagula (Hobeta Aku and John Nokala’s mother) intended to vote for Petitioner initially?” And then: “How do we know Idagula was swayed away and voted against her “wishes” or “free will” on 3 April 2019, by whatever John Nokala, may have done that day?”
  3. Only Idagula, the mother can give the most credible, reliable and direct evidence on these crucial issues. Hobeta Aku’s evidence that their mother, told him, what had happened to her and how she was forced or tricked into voting against her “free will” is mostly hearsay evidence. And not accepted.
  4. Petitioner failed to establish in evidence, whether or not Idagula voted against her “free will”. Only Idagula can give direct evidence, not what a third party had merely relayed to court on her behalf – which is merely hearsay. The burden of proof has not shifted. The 1st Respondent and his witnesses do not have to exonerate themselves (See Bae v Ramofafia[14]).
  5. Accordingly, this allegation will be dismissed. I am not entirely satisfied with the allegation that, Idagula voted against her “free will” and “intentions”, by actions of her son, John Nokala. I would not be able to know unless, Idagula herself gave direct evidence.

Ground 9 - Mr. Soapi - Illegal campaign activities outside of Vanikuva polling station

  1. Petitioner alleged that at Vanikuva polling station area, on April 3 2019, Esa Hobeta and Meregeni Rebon, were standing in the queue, to cast their ballot when one named Derrick Soapi, whistled to get their attention. When Esa Hobeta and Meregeni Rebon, looked towards Derrick, Derrick gestured ‘No 3’ with his 3 fingers. Derrick directed them to cast their ballots to the ‘No 3’ candidate on their ballot paper, which correlated to Danny Philip’s name. Derrick also made gestures symbolising the wings of the ‘Baruku Bird’ (Danny’s symbol) and whispered to them to vote for Danny Philip. Derrick is an agent of 1st Respondent. First Respondent denied in amended defence, saying, he had no knowledge of the event as alleged.
  2. Petitioner called Mr. Hobeta Aku to give evidence in support of this allegation. Mr. Hobeta’s evidence is that on 3 April 2019, the polling day, around mid – afternoon, he was standing up in the queue, to cast his vote. He stood in the line in front of his wife (Esa Hobeta) and another woman namely Meregeni Rebon, at Vanikuva polling station.
  3. While in the line, Hobeta Aku saw Mr. Derrick Soapi, of Lela Beach, Rendova, whistled to get the attention of his wife (Hobeta) and Meregeni. Mr. Soapi then gave the two women (Mrs. Hobeta and Meregeni) gesture “No 3”. And made symbols of the wings of Baruku bird (Danny’s symbol) and murmured to the two women to vote for Danny. Mr. Soapi is a well-known supporter of Danny Philip.
  4. Mr. Soapi gave evidence for the 1st Respondent and denied making any signs, gestures and murmuring to the two women. Mr. Soapi said he did not give signs or murmured to Meregeni Rebon. Meregeni, is Soapi’s mother. And Soapi’s mother Meregeni was not on the line with him at the polling station. And say, in any event, his mother Meregeni and him already decided to vote for 1st Respondent.
  5. Where there is a denial, the two women (Mrs. Hobeta and Meregeni) should be called to give evidence, so there is verification of the disputed fact. In the absence of verified evidence, Court would not be entirely satisfied as to the material facts alleged and the issues aroused. The material fact is: “Soapi engaged in campaign activities to influence the two women to vote for Danny Philip, outside of the campaign period (polling day)?” The issue aroused is: “Whether the 2 women’s votes were induced/influenced as a result of the campaign activities allegedly taking place at the polling station?” The 2 crucial elements[15] to proof in the offence of engaging in campaign activity outside of the campaign period (Section 124 read with section 5 and Section 62 of the Electoral Act 2018 (No 6 of 2018). Alternatively, if Petitioner based this allegation on Section 127 of the Electoral Act 2018 (No. 6 of 2018), then the 4 crucial elements of undue influence to proof are also not established by the evidence. The 4 crucial elements of undue influence are: violence, intimidation, threat or physical restraint. To “unduly influence” a voter is different from to “influence” a voter. The 2 are not the same. Undue influence is in Section 127. Influence to vote, as a result of campaign activity taking place outside of the campaign period, is in Section 5 read with Sections 62 and 124.
  6. Petitioner had not proved that campaign activity took place outside of the campaign period, due to lack of corroboration. Petitioner had not proved the said campaign activity had “unduly influenced” or “influenced” the votes of Mrs. Hobeta and Meregeni.

Ground 10 - Mr. Jack Daniels – Illegal campaign activities outside of Vanikuva polling station

  1. Petitioner alleged that on polling day of 3 April 2019, around morning time, Grace Patrick and Mary Ose, were at Vanikuva polling station area (Vanikuva primary school) searching for their names on the voters list. Whilst doing that, Jack Daniels, a prominent supporter of Danny Philip approached them and told them to follow him and to cast their ballots for Danny Philip. In return Jack Daniel promised them that they will follow him to Honiara after the election to see Danny Philip. First Respondent deny this allegation in amended defence and say he had no knowledge of the conversation between Jack Daniels, Grace Patrick and Mary Ose.
  2. Petitioner was not able to proof this allegation. Mary Ose gave ss evidence for Petitioner. Counsel Togamae gave notice to cross – examine her. But Mary Ose did not turn up at trial. And her ss evidence was not admitted for use by the court. Grace Patrick, did not give evidence at all. Accordingly, this allegation fails.

Grounds 11 and 12 - Danny gave a chain saw and outboard motor engine to Mr. Ghamu and Mr. Liston respectively to bribe them

  1. Petitioner alleged that week prior to the commencement of the 2019, GE, at Kofivo village, Lokuru area, Rendova, Danny personally told Chief John Brown that Danny will give a chainsaw to Harold Ghamu and a 15-horse power outboard motor engine (OBM) to one named Mr. Liston Job, so that the 2 gentlemen will vote for him.
  2. Then on 17th March 2019, at Bango Bingo, Harold Ghamu’s son, Ghamu confirmed to Olopige Oilani and Nylyn Hilton that he was carrying a brand new chainsaw and saw the said Ghamu carrying the chainsaw from Danny Philip’s house over to his father’s house.
  3. And on or about April 7 2019, in the morning, at Bango Bingo, Kolish Hoke witnessed some of the supporters of Danny Philip carry and delivered a new 15 Suzuki horse power outboard motor to Liston, at Mr. Liston’s house.
  4. First Respondent deny the allegation in his amended defence, saying the facts concerning the chainsaw and OBM were erroneously stated and untrue.
  5. Chief John Brown gave evidence for the Petitioner on the chainsaw and OBM allegation. His evidence was about a meeting at Danny Philip’s house, where Danny privately told him in a conversation, that Danny would give a chain saw to Harold Ghamu and OBM to Liston, so that they will vote for him.
  6. Paragraphs 5 (i) (ii) and 6 (i) and (ii), on delivery of the OBM, in John Brown’s ss were hearsay. John Brown said, Nelyn Hilton told him, they saw Ghamu carrying a chainsaw and walked past them at Bango Bingo. Similarly Kolish Hoke told him on or about April 7 2019, he saw supporters of Danny Philip deliver the 15 HPOBM to Liston’s house at Bango Bingo. What came from Hilton and Kolish through John Brown is all hearsay evidences and cannot be accepted.
  7. First Respondent did not deny in ss evidence that he gave a chainsaw to Mr. Ghamu and a OBM to Mr. Liston. But Danny deny, he gave the 2 items to them to lure them to vote for him. Danny say in ss and under cross examination, he gave the two most valuable items to the two named gentlemen because, they asked him.
  8. To Mr. Ghamu, Danny said, Ghamu asked Danny and Danny said, he will give the chainsaw, after Danny finished cutting timbers for his own house. Mr. Ghamu is Danny’s brother (cousin brother).
  9. Mr. Liston, requested the OBM from Danny and Danny said he will give the OBM after he has finished using it after the GE. Danny felt sorry for Liston. So Danny gave the OBM to Liston. But, Danny deny making remarks to induce Liston to vote in Danny’s favour.
  10. Mr. Liston Job gave evidence to confirm Danny’s evidence. That he (Liston) asked Danny for the OBM. But deny Danny inducing him to vote. He received the OBM after the 2019 GE. I questioned Mr. Liston why he asked for an expensive item and he said he asked from the depth of his heart.
  11. Similarly Mr. Ghamu gave evidence also affirming Danny’s evidence that Ghamu asked Danny for the chainsaw. And Danny said, he will give it to Ghamu, when Danny finished cutting timbers for his house. Mr. Ghamu is Danny’s cousin brother. Ghamu deny election inducement comments.
  12. Giving was established. But election inducement comments are doubted, due to lack of corroborated evidence by Petitioner’s one witness. First Respondent gave a chainsaw and OBM to Mr. Ghamu and Mr. Liston respectively, upon the duos request. Whether or not the request and gift is bribery, I will cover under application of law (Paragraphs 78 – 88 below).

SIX (6) INCIDENCES OF BRIBERY AT KOBI 1 AND KOBI 2 – UGHELE VILLAGE

  1. Petitioner alleged 6 incidences of bribery against the 1st Respondent. These relate to 6 incidences, where Petitioner alleged 1st Respondent gave monies to 6 elderly people in order to induce them to vote for him. Petitioner alleged 1st Respondent made visits to these elderly people at Ughele, Kobi 1 and Kobi 2, at the eleventh hour on April 2, 2019 and April 3 2019, within the forbidden 24-hour period, prior to polling day on 3 April 2019. First Respondent deny the allegations, as pleaded, in terms of time and inducement allegations. But in evidence, 1st Respondent admitted he visited the elderly, gave them money, items/goods and prayed with them.
  2. In other words, 1st Respondent deny in amended defence, allegations, which tried to connect the giving to bribery[16]. But 1st Respondent admitted in evidence that he gave money, goods and prayed with the old age people at Ughele, Rendova. First Respondent explained in his evidence that this is what he usually do, whenever he goes on constituency tour or whenever he goes back home for holiday. And went on to explain, this is a practice he developed from his background both as a leader and SDA believer.
  3. I will take turn to look at the 6 incidences of alleged bribery involving giving of money at Ughele, Kobi 1 and Kobi 2. The evidence also revealed that Danny had his camp at Ughele during 2019 GE campaign period. Danny set up camp at Ughele, where he operates his campaign activities from.

Ground 13 - Incidence 1 – Mr. Kapana gave $100.00 to Daisy Taki (82 years old) at Kobi 1

  1. On April 2, 2019, Anita Taki witnessed Alben Kapana, agent of 1st Respondent, gave $100.00 to her elderly grandmother Daisy Taki (82 years old) at Kobi 1, Ughele. Anita Taki, petitioner’s witness did not turn up at trial to be cross – examined. So her ss was not admitted for use by the court. This allegation is therefore dismissed accordingly for lack of evidence.

Ground 14 - Incidence 2 – Mr. Utukana gave $100.00 to Utu Job (82 years) at Kobi 2

  1. On April 2, 2019, at her house at Kobi 2, Ema Jacob witnessed John Utukana, agent of 1st Respondent, gave $100.00 to her elderly father, namely Utu Job (82 years of age). John Utukana deny giving $100 to Utu Job, as he was at Nusahope on 2 April 2019, to pick up betel nut. Where the allegation is denied and Utukana gave alibi evidence, Petitioner should call another witness or the old man should be in court to testify. It is not enough just to say somebody saw someone gave money to another person. If bribery is an offence, then it denotes, there must be a complainant to start with. Even in a civil case. This is a bribery allegation in respect of Mr. Utu Job. What effect bribery had on Utu’s vote (if any) cannot be ascertained, unless he comes to Court? I do not even know, if Utu Job went to vote, being very old. The evidence of Ema Jacob is hearsay and cannot be accepted to establish this allegation against 1st Respondent. I am not entirely satisfied, John Utukana gave $100 to the old man, Mr. Utu Job. This allegation fails.

Ground 15 - Incidence 3 – Mr. Kapana gave $100.00 to Freda Hoe (70 years), at Kobi 2

  1. On 2nd April, 2019, at Kobi 2, Rose Philip personally witnessed Alben Kapana, 1st Respondent’s agent gave $100.00 to her elderly mother Freda Hoe (70 years) at their house. First Respondent gave no evidence to rebut, what Rose Philip says. Not even Alben Kapana. But like I say above, it is not enough to say someone saw someone gave money to another. The receiver of the money should be in court to confirm or deny. Bribery as an offence denotes there must be a complainant to start with. Even in a civil case. This is a bribery allegation in respect of Freda Hoe. What effect bribery had on her vote, (if any) cannot be known, unless she comes to Court. I do not even know if Hoe casted her vote being very old. The evidence of Rose Philip is hearsay and cannot be accepted to establish this allegation against 1st Respondent. I am not entirely satisfied Freda Hoe received money from Alben Kapana. This allegation fails.

Ground 16 - Incidence 4 – Mr. Utukana gave $100.00, to 5 women, at Saleseleni’s house, Kobi 2

  1. On April 2, 2019, Mr. Clery Winch personally witnessed, John Utukana gave $100.00 each to 5 other women sitting at Saleseleni’s house at Kobi 1. First Respondent produced evidence through John Utukana, who on alibi evidence, was away from Ughele, at Nusahope, on April 2, 2019. But like I say elsewhere above, it is not enough just to say someone saw someone received money. The 5 women, who allegedly received money ought to come to court and confirm or deny in court. Bribery as an offence denotes, there has to be a complainant to start with. Even in a civil case. Evidence of Clery Winch is hearsay and cannot be accepted to establish this allegation in respect of the 5 women against 1st Respondent. What effect bribery had on the votes of the 5 women (if any) cannot be known unless they come to Court. I do not even know, if the 5 women have voted. I am not entirely satisfied, John Utukana gave $100.00, each to the 5 women at Saleseleni’s house, at Kobi 1, Ughele. This allegation fails.

Ground 17 - Incidence 5 – Mr. Kapana and Danny Philip gave $250.00 to Eiti Alex (75 years) and Alex Semi (76 years) at Ughele

  1. About 24th March 2019, Nupa Alex witnessed one Danny Philip and Kabana Alben promised to give cash to Alex Nupa’s mother and father, Eiti Alex (75) and Alex Semi (76), at their house at Ughele. Then Alex Nupa received $250.00 from Danny to give to Alex Nupa’s mother and father. Again the elderly couple could not be in court to confirm or deny the allegation. The allegation fail for the same reasons as above – not enough just to say Alben and Danny gave money to Alex Nupa’s elderly parent. In any event, this allegation is not denied. Danny and Alben visited, gave money and prayed with elderly people in Ughele. But the old people are not here to raise complain about, what Danny did to them. So it is hard for the court to form a conclusion, on whether what Danny did was bribery to lure the elderly to vote for him. Alex mum had stroke and could not vote. Can it be said that an old woman with stroke can be bribed with intention to vote for Danny, in view of her ailing health conditions?
  2. Again I am not entirely satisfied, the allegation is made out on a high standard. The allegation fails.

Ground 18 - Incidence 6 – Mr. Danny Philip gave $200.00 to Seijama, at Hukari’s house, at Ughele

  1. Petitioner alleged Siejama received $200.00 from Danny on 27 March 2019, at Elona Hukari’s house, Ugele. Seijama did not ask for money. Was first time for Danny to help her? Danny in his evidence under cross examination did not agree he gave money to Seijama saying Seijama is not an old women. And would not normally be visited and assisted under Danny’s practice of helping the old. I saw Seijama in court. And she is not old. She is still strong I ask her 3 times a simple question. And she took a long time to answer. I asked her, what was wrong with Danny visiting her, giving her money and praying with her. She would not answer quickly and easily. Her first answer after a long pause was “Staka time hem no sawe come”[17]. Second answer “Hem wok for government, long time, seleni hem givim me small tomas”[18]. Third “Mi saprise why hem givim mi $100.00 Nomata hem small, mi happy nomoa”[19]. She is a registered voter of Gizo/Kolombangra constituency. Why would someone bribe a person, who can’t even vote at SNGRTC?
  2. Seijama does not impress on me as a truthful witness. I asked her a simple question 3 times. And she detracted from answering. It took her a long time to answer. I also asked her to tell me what happened to her that day. I wanted her to tell me in a story form, the bribery, as it unfolded and as she witnessed. It appeared, she was only content to stick to what was prepared in a ss. And nothing else. But without a ss or in addition to the ss, she should be able to tell me what actually happened to her that day. And not rely entirely on what was prepared ahead in the ss. Sworn statements are normally tailored to support a party’s theory of the case. But what Seijama actually went through, can be relayed in a story form. That was what I was looking for, but hardly coming from her.
  3. Allegation says Danny gave $200.00 to Seijama. Seijama say in evidence Danny gave her $100.00. Danny deny giving Seijama any money, because she is not an old woman. I am not entirely satisfied that Danny gave $200.00 to Seijama, as alleged, in the amended petition. Must proof what is alleged. This allegation fails.

ALLEGATIONS DISMISSED INSTANTLY FOR NOT MEETING THE STANDARD OF PROOF

  1. Before I discuss and apply the law, I need to state clearly, that all of the allegations, with the exception of two (Chainsaw and OBM) failed, to meet the standard of proof and are dismissed instantly. Such allegations failed the very first legal hurdle of “higher standard of proof” – clear and cogent proof to the Court’s entire satisfaction. With such allegations, I will not apply the relevant law, on offences in the Electoral Act 2018, which relates to the allegations pleaded in the amended petition.

THE LAW AND APPLICATION OF LAW

  1. The standard of proof is a high one (repeat paragraphs 5 and 6). Also repeating the law as already stated that if one incident of specific bribery is established against the 1st Respondent and or his agent, the election result will be invalidated (repeat paragraph 6).
  2. Under the Repealed Act[20] or the New Act 2018[21], the two common basic elements of bribery to prove are the same. The Repealed Act speaks of giving etc... with the intention of influencing the other person... The New Act speaks of giving etc... with intention to induce such elector to vote...” The two common basic elements are succinctly stated, recently by Chief Justice Sir Palmer in Temahua case as: there must be a promise, offer or benefit from 1st Respondent (first element). And that the promise, offer or benefit from the 1st Respondent was given with the intention to influence the beneficiary receivers/electors (second element). Both elements must be proved to the Court’s entire satisfaction.
  3. On the first element, for the 2 remaining bribery allegations, it is not difficult to establish on the evidence. That is to say in the remaining 2 bribery allegations, the 1st Respondent admitted in evidence, that he gave benefits to the 2 recipients – Chainsaw to Mr. Ghamu and OBM to Mr. Liston. It is the second element that I must now dwell on. That is whether or not the 1st Respondent had given the 2 valuable items, with the intention to induce Ghamu and Liston to vote for him?
  4. I must start by saying that this is the most difficult element to prove in this case. I am not God that I can see through the heart and mind of the 1st Respondent, to say with ease, whether 1st Respondent gave the 2 items (benefit) with the mens rea (intention) to influence Mr. Ghamu and Mr. Liston to vote for him.
  5. I am however guided by precedent in this jurisdiction. And the cases are saying that the 1st Respondent’s intention is to be assessed by the court, on the facts that surrounds the giving. Ha’apio case relevantly stated: -
  6. The above are supported by another High Court case[22], which relevantly stated:
  7. Clearly whether the intention was to influence the vote must depend upon the circumstances and manner in which the gift was given or the time when it was done and the nature of the gift. Each case must be treated on its own merit or circumstances. For it is rare to have two identical cases. So let me turn to look at the circumstances that surrounds the 2 remaining bribery allegations (giving) and apply the law. And from the facts, evidence and in view of all the circumstances of this case, whether 1st Respondent’s giving out of the 2 items to the 2 gentlemen were made with intention to do that which legislation forbids (i.e. bribe the 2 voters). And whether from the facts, evidence and in view of all circumstances in this case, the only conclusion or the only interpretation the Court can draw is Respondent had intention to bribe the 2 gentlemen voters?

Giving of: Chainsaw to Mr. Ghamu and OBM to Mr. Liston

  1. I covered the facts, evidence and circumstances behind these 2 incidents in paragraphs 53 – 64 above. I found that, 1st Respondent gave a chainsaw to Ghamu and OBM to Liston, in response to requests from the 2 gentlemen (Ghamu and Liston).
  2. I find it hard to label giving in response to the 2 requests, bribery, because this is not the only conclusion to draw. This is not the only interpretation which warranted adopting as the true one on the evidence. There are a few conclusions or interpretations here. First the 2 gentlemen were in real need of the 2 most valuable items and have asked. Mr. Liston says he asked from deep within his heart. Mr. Ghamu was actually asking his cousin brother (Danny) for the chainsaw. And so Danny responded to the 2 requests and gave the requested items, after Danny had finished with using the 2 items. Danny felt sorry and gave the 2 most valuable items. Secondly, Respondent gave the 2 items to the 2 gentlemen with intention to influence the 2 gentlemen voters, to vote for him at the 2019 GE. From these two possible conclusions or interpretations, I do not know which one to settle with. I must be careful not to take the culpable interpretation in the circumstances, after a very thorough scrutiny. Therefore, I am not entirely satisfied on a high standard of proof that the giving of chainsaw and OBM to Ghamu and Liston was bribery.
  3. The Ha’apio[23] case also shows that timing and nature of the giving, will assist the court to say whether giving was bribery. So in the one incident at Sawarokau, that invalidate the election result, the Judge held, Respondent gave the $500.00 to 10 people ($50.00 each admitted in evidence by Respondent), during the campaign trail and there was no good reason given for doing that. So Judge concluded the only reason for giving was intention to induce voters to vote for Respondent. Court relevantly stated: -
  4. In this case, the assistances were given to the 2 gentlemen after the GE. And not during the campaign trail. And certainly there was good reason, put forward, why 1st Respondent gave the 2 items, which the Petitioner complained about. That the 2 gentlemen requested the 2 items. But Danny was still in need to use the 2 items at time of request. So Danny told the 2 gentlemen to wait until he had finished using them. And he will give the 2 items to them after his own use. After his own use, also mean after the GE.
  5. I need to say something on bribery, before concluding. Bribery as an offence, in Section 126, has two principal parties to it. The “Giver” and “Receiver”. For the Court to form a conclusion that the facts, evidence and circumstances, surrounding the “giving” amounts to bribery, the Giver and Receiver must come to Court. Receiver, in particular, must be upset, by the circumstances of the “giving”, as the circumstances, affected his or her own “free will” to vote at time of election, in one, or all of the ways, mentioned in Section 126 (1) (b) (i)[24], (ii)[25] and (iii)[26]. In many bribery incidences, I dealt with this year, in election petitions, one of the parties was absent in Court (either Giver or Receiver). For this case, in the 6 bribery incidences alleged, the Receivers were absent in Court, except for Seijama. It makes it difficult for the Court to make a conclusion on bribery, when one principal party is absent in Court. The Court may be inclined to make inferences. But is unsafe to draw inferences on facts, evidence and circumstances, surrounding the alleged “bribery giving”, where the standard of proof is a higher one. More so where one principal party is absent. This Court has pronounced in other similar scenarios, where the Receiver is absent in Court, the eyewitnesses of “bystanders” becomes “hearsay” and cannot be used against the Respondent (Giver), even when Respondent (Giver) has admitted to the “giving” (Airahui[27]). Sikua[28] and Fugui cases, Receivers of gifts or benefits, testified in Court.

CONCLUSION AND ORDERS

  1. In view of the foregoing findings and conclusions, the petition is dismissed with cost on standard basis. I will assess cost.
  2. I declare, that Mr. Danny Philip was the duly elected MP for SNGRTC. 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.

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 Sir Palmer, in a Ruling delivered on 16/08/2019.
[3] Chief Justice Sir Palmer meant Section 126 of the New Act – which provide penalties like $150,000.00 fine or 15 years imprisonment.
[4] Chief Justice Sir Palmer in Airahui and Others v Kenilorea Jr. and Others; Civil Case 279 of 2019, in a Ruling delivered on 2/09/2019. Chief Justice Sir Palmer’s pronouncement, gave legal and jurisdictional endorsements for High Court to hear election petitions, alleging bribery, in all subsequent petitions tried in this Court under the Electoral Act 2018.
[5] Unduly influenced means – to be induced or persuaded against one’s “free will” OR to be induced or persuaded without adequate attention to the consequences (Concise Oxford Dictionary – 10th edition).
[6] Four (4) elements of Undue Influence Offence in Section 127 of the Electoral Act 2018 – are Violence, Intimidation, Threat or Physical Restraint.
[7] Violence means – physical force intended to hurt or kill (Concise Oxford Dictionary – 10th edition).
[8] Intimidate means – to frighten (Concise Oxford Dictionary – 10th edition).
[9] Threat means – statement of intention to inflict injury, damage or other hostile action as retribution (Concise Oxford Dictionary – 10th edition).
[10] Physical Restraint – Tangible devises used to limit or prevent freedom of movement (Concise Oxford Dictionary – 10th edition).
[11] Efona v Fugui and Another; Civil Case 285 of 2019, Unreported Judgment delivered 14/02/2020.
[12] See ss by Wasi Mulesae filed 17/05/2019; at paragraph 4 vi, page 172, Court Book.
[13] Hearsay evidence is – evidence given by a witness based on information received from others rather than personal knowledge (Concise Oxford Dictionary – 10th edition).
[14] [2019] SBHC 89; HCSI-CC 298 of 2019 (8th December 2019).
[15] Two elements of campaigning outside of campaign period under Section 5 (1) (a), (b) and (2) (g), read with Section 62 and Section 124 of the new Electoral Act are: engage in campaign activity outside campaign period and calculated to influence a voter to cast his vote at an election.
[16] Bribery means – dishonestly persuade someone to act in one’s favor by a payment or other inducement (Concise Oxford Dictionary – 10th edition).
[17] He did not come many times (English version).
[18] He worked a long time for the Government, Money he gave me was very small (English version).
[19] I was surprised why he gave me $100.00. Even though it was small I was happy (English version).
[20] National Parliament Electoral Provisions Act (Cap 87) – Section 71 read with Section 66 (1).
[21] Electoral Act 2018 (No. 6 of 2018) – Section 126.
[22] Alisae v Salaka [1985] SBHC 6; (1985-1986) SILR 31 (4th April 1985).
[23] Ha’apio v Keniasina [2011] SBHC 12; HCSI-CC 343 of 2010 (7th December 2011).
[24] Receiver vote or refrain from voting at election.
[25] Receiver vote in a particular way at election.
[26] Receiver influence a third person to vote, refrain from voting, or vote in a particular way at election.
[27] Her Ladyship Justice Bird, at paragraphs 67 - 74 in Airahui and Others v Kenilorea Jr. and Others; Civil Case 279 of 2019, Unreported Judgment delivered on 23rd March 2020.
[28] Sikua v Vokia and Another; Civil Case 265 of 2019, Unreported Judgment dated 14/02/2020.

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