Manepuri v Tovosia [2020] SBHC 3; HCSI-CC 295 of 2019 (3 January 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Manepuri v Tovosia
Citation:
Date of decision:	3 January 2020
Parties:	Timothy Manepuri, Patrick Savusi Junior and Benedict Tova v Bradley Tovosia, Attorney General
Date of hearing:	16 and 17 December 2019 19 December 2019 (Final Submissions)
Court file number(s):	295 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona PJ
On appeal from:
Order:	1.Order is hereby made dismissing the petition in it’s entirely 2. Costs are awarded to the First Respondent on indemnity basis 3. Order no security for costs be paid out to the First Respondent until the bill of costs is conveyed to the Petitioner in order to reconcile the payment of costs 4. A certificate will be served upon His Excellency the Governor General that the election of Bradley Tovosia as Member of Parliament for East Guadalcanal Constituency was valid in all respect
Representation:	Mr. J Apaniai for the Petitioners Mr. W Rano and Mrs Kilua for the First Respondent Second Respondent taking no active role
Catchwords:
Words and phrases:
Legislation cited:	Electoral Act 2018, s126, s127 Repealed Act, s66 (2)
Cases cited:	Airahui v Kenilorea Ha’apio v Keniasina [2011] SBHC 177 Tosika v Tran Soaloa v Tuki [2018] SBHC 88 Maefai v Ghiro [2018] SBHC 83 [2016] SBHC 43 Fono v Fiulaua [2011] SBHC 6 Alisae v Salaka [1985] SBHC 6 Mamata v Maetia [1985] Temahua v Vangara Maina v Magga [2008] SBHC 19 Bae v Ramofafia [2019] SBHC 89 Thugea v Paeni [1985] SBHC 5

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 295 of 2019

BETWEEN
TIMOTHY MANEPURI, PATRICK SAVUSI JUNIOR AND BENEDICT TOVA
Petitioner

AND:

BRADLEY TOVOSIA
First Respondent

AND:

ATTORNEY GENERAL
(Representing Returning Officer for East Guadalcanal Constituency)
Second Respondent

Date of Hearing: 16 and 17 December 2019, 19 December 2019 (Final Submissions)
Date of Judgment: 3 January 2020

Mr. J Apaniai for the Petitioners
Mr. W Rano and Ms. Kilua for the First Respondent
Second Respondent taking no active role

JUDGMENT ON ELECTION PETITION

Faukona, PJ:
Introduction

1. This election petition was concertedly filed by trio Petitioners on 20^th May 2019; on the basis bribery, undue influence and corrupt practice by certain individuals done during the cause of the National General Elections held on 3^rd April 2019, by agents and or the first Respondent as the winning candidate.
2. On 3^rd April 2019, Solomon Islands as an independent state inherited a unitary system of parliamentary democracy from England went to the polls to elect a new Parliament.
3. Mindful of our democratic principles of universal suffrage under the preamble of the Constitution, all citizens are bestowed with the right to exercise by casting a vote in favour of a candidate of their choice. That act of freedom to cast must not be hindered by certain elements fabricated by man to jeopardise the freedom to choose and elect.
4. It is this intervening abstracts that the law is provided to guard against and to ensure the National General Election is conducted free and fair.
5. After casting of votes the ballot papers were counted. The result for East Guadalcanal Constituency is that the first Respondent polled 3,985 votes and his runner up Mr Timothy Manepuri polled 1,484 votes. The first Respondent was declared the winner with the majority of 2,501 votes.
6. Against that result the Petitioners who were the losing contestants filed this petition alleging bribery committed under section 126 of the Electoral Act 2018, undue influence under S. 127 of the Act and corrupt practice providing transport for cross boarder voters.
7. At this juncture it is prudent to express gratitude for the Petitioners for withdrawing by consent the bulk of the grounds except for grounds 1 and 3 in part A of the petition. These are the only two grounds this judgment will focus its coverage.

The Law

8. The legal tools which are provided and within arm’s reach, to utilise for determining election petition cases are the National Constitution particular chapter VI, Part 1, Electoral Act 2018, and including repealed Electoral Act by virtue of allowance by His Lordship CJ Palmer in the case of Airahui v Kenilorea Jr (^[1])
9. In the midst of modern development in law, it is prudent that interest citizen do take time to self-educate, that there are two approaches or principles in dealing with the offence of bribery in election processes. One as profoundly attributed in the case of Ha’apio v Keniasina (^[2]) which the court states in paragraph (31)
   • “....The Petitioner have succeeded in establishing necessary standard of proof, the Respondent committed at least one corrupt practice namely handing out $50.00 to each of the 10 person he found at Sawarekau village on an unknown date in July 2010 in order to induce them to vote or refrain from voting.....if the Petitioners establish to the standard of proof required just one act of corrupt practice by the Respondent the election is not valid”.
10. In extension to the above paragraph and by virtue of the case of Airahui v Kenilorea Jr, allowing application of the repealed Act, which the current Act is silent about which reference is hereby made to S.66 of the repealed Act, which included elected candidate or his agent committed corrupt or illegal practice shall render the election invalid, even in a single act. Therefore an agent of a winning candidate is similarly treated equally as winning candidate in terms of corrupt or illegal practice, which bribery is part and partial thereof. This is termed as specific bribery. The above ratio decendi was approved and applied in the case of Tosika v Tran (^[3]), Soaloa v Soria Comua (^[4]), Maefai v Ghiro02 (^[5]) and perhaps more.
11. The second aspect of corrupt or illegal practice in election (of which bribery is part) is offences committed in reference to S. 66(2) of the repealed Election Provisions Act. Those offences are perceived to be committed by ordinary supporters for the purpose promoting or procuring the election, have so extensively prevailed that may be reasonably supposed to have affected the result if elected, shall be void and shall be disqualified from being a member of parliament.
12. To elaborate on the legal aspect of S.66 (2) I refer to the case of Fono v Fiulaua (3) where Justice Goldsbrough enunciated that S.66 (1) does not suffer the qualification found in S.66 (2) of the Act (Repealed Act). In fact there is no conjunctive expression between the two. Subsection (1) speaks of what is described as “Specific Corruption”, as oppose to subsection (2) which speaks of “General Corruption.” Subsection (1) refer to actions of the candidate or his agent and subsection (2) is not so qualified. Subsection (1) is self-confined and need not rely on subsection (2) to import its meaning.
13. What His Lordship meant can be deduced as, any proven allegation of corrupt act or illegal practice (hearsay as part) proved to have been done by supporters or ordinary supporters the number of people bribed or induced by means to vote for the winning candidate, or abstain from voting, the total of which must be counted to off-set the majority vote that secured the winning candidate. Should the count fall below the majority votes, that cannot be taken a reasonably supposed to have affected the result of the election, the result stood as it is. It is clear subsection (2) of S.66 is advocating what the law term as “general corruption”.

Standard of Proof

14. The Standard of Proof applied in election petition cases are higher than the ordinary civil standard of proof on the balance of probability, though falling just short of the criminal standard of proof beyond all reasonable doubt.
15. In the case of Alisae v Salaka (^[6]), Wood CJ, adopted the statement by Chief Justice of PNG CJ Frost in Re Menyamya Open Parliamentary Election, where CJ Frost said,
    • “However, in the case before I uphold the petition, I am of the opinion the ground of it must be proved to my entire satisfaction, and that as Wills J said, if I am not be very sure I must at least be sure that the ground has been made out. I may well fall therefore just short of the criminal standard, although application to consider these would be no real practical difference”.
16. Wood CJ, in his own words agreed on page 5 to the above law, and as he would repeat from Mamata v Maetia, “I am to uphold the petition the ground of it must be proved for my entire satisfaction and I must be sure that the ground has been made out”.
17. That standard enunciated had been applied in many domestic cases in this jurisdiction. The most recent one was in the case of Temahua v Vangara (9), which His Lordship Sir Palmer CJ held that, the standard is higher than the civil standard and lower than the criminal standard. However the CJ Palmer further explained,
    • “That standard will require clear or cogent proof of the allegations to the court’s entire satisfaction is adduced. The evidence should be clear and unequivocal in order to enable the court to be entirely satisfied that the allegations of corrupt practice are made out and not simply on mere balance of probabilities”.
18. Conclusively, it becomes a settled law that the standard of proof is proof to be to the entire satisfaction of the court. By legal implication the Respondent does not need to exonerate himself, the burden of proof rests on the Petitioner (^[7])
19. The two outstanding grounds which finally shifted through the judicial process are ground (1) and (3).
20. Ground (1) concerns an allegation of bribery by a purported agent of the first Respondent as a winning candidate. The facts are that on 2^nd April 2019, at Tahunipina village, Marau Sound, East Guadalcanal, an agent of the first Respondent, namely, Steward Hepe, promised to give Mrs Ileen Kove an amount of $2,000.00 if Mrs. Kove votes for the first Respondent.
21. The evidence in support of this allegation is adduced by Mrs Kove and Mr Kaia. Unfortunately the Petitioners by conscience unable to discharge the burden vested upon them to proof each and every element of the offence of bribery to the satisfaction of this court.
22. Having realized their shortcomings, in not discharging the legal duty of proof vested upon them, conceded, therefore accepted defeat. Hence do not wish to contest evidence against them in their submissions. At this juncture I must dismiss this ground accordingly.

Ground 3: Allegation of bribery against First Respondent

23. This ground is a contested one. It is an allegation of bribery against the First Respondent as the winning candidate. The offence of bribery is set out in S.126 of the Electoral Act 2018.
24. The facts are that on 31^st March 2019, Mr Tovosia (The First Respondent) bribed Mrs Sarina Oimamu by giving her the sum of $100.00 and told her to vote for him. There are two major elements contained in the offence.
25. To proof the offence the Petitioners must proof there is a direct or indirect promise, offer or giving of benefit to another. Secondly the Petitioner must proof the Respondent (specific to this offence) intended to influence the person to vote or not to vote or vote in a particular way.
26. More specifically the facts concisely alleged that the First Respondent gave $100.00 to Mrs Oimamu to influence her to vote for him in the National General Elections on 3^rd April 2019.
27. The offence of bribery is unique and indifferent. There is a saying, “it takes two to entangle”. There must be an act or promise, offer or gift from one person and must be conveyed to another as recipient. In the current case it was in terms of giving which there must be an acceptance. Whether the recipient acted in accordance with the motive for giving is immaterial. The moment the gift was received with acknowledgement the offence of bribery is completed. In other words, whether Mrs Oimamu voted for the First Respondent or not, retrospectively, the offence of bribery had been fully committed or completed.
28. In the current case, the act of giving of $100.00 to Mrs Oimamu, as one limb has been admitted by the First Respondent. It is the motive of giving that is the second issue to contemplate in this judgment.
29. In support of the allegation of bribery the Petitioners adduce evidence through two witnesses, Mr Alex Houtamana and Mr Berry Kaia. In opposition the Respondents adduce evidence through four witnesses. For this particular element Mr Bradley Tovosia, the First Respondent and Mr Francis Mamou. However court will also consider the other two unchallenged witnesses.
30. In rehearsing the evidence in support of the allegations, it started with Alex Houtaman’s evidence where he states that on Sunday morning of 31^st March 2019, he and his wife, sister in-law and another person walked from their village Komuisia to Komunipo village with intention to get a canoe and travel to Niu Island to attending mass service that morning. Awanaru village is a village that is located between Komuisia and Komunipo villages.
31. During the course of examinations the witness states that he reached Awanaru village at between 7am and 9am. To place at best would be at 8am although he is not quite certain. By then his wife and others would have gone before.
32. Upon his arrival he saw the First Respondent and Mrs Oimamu engaged in a conversation on the beach near a tree. He approached them. From two metres away, he could hear Mrs Oimamu complained that for the past 4 years as Member of Parliament, she did not receive any pig fence or chicken wire.
33. After a while the First Respondent got out $100.00 note from his short’s pocket and gave it to Mrs Oimamu and said the words to the effect. “Take this hundred dollars and vote for me.” After that, the witness left for Niu Island which he arrived when the Priest delivered the divine message for the morning mass which time he estimated to be at 8.45am.
34. From where he stood he could estimate that Mr Mamou was standing about 20 meters away. To him, by reason, the distance would not permit Mr Mamou could hear the conversation. That would logically place him in a position that he was the only person who heard the conversation; he was there about 3 minutes.
35. After intensive cross examinations with many variation of timing. It appears the written sworn statement finally settled that Mr Alex arrived at Awanaru village before 8am, and did arrived at Niu Island at roughly 8.30 during deliverance of the message.
36. After church services he met Oimamu at his father house who showed him the $100.00 note. That is inconsistent with paragraph 13 of his sworn statement deposed on 6^th July 2019. In his sworn statement he met Mrs Oimanu and asked her about the money before service commenced. She admitted that First Respondent gave her a $100 note which she kept in a small bottle.
37. The change of evidence about the meeting after the service was an intention to corroborate with Mr Berry’s story. In doing so Alex had deviated from his own sworn statement. That includes whether Mrs Oimamu voluntary shown the money or was shown according to Alex’s request. Mr Alex has to change from his sworn statement to corroborate with witness Berry who said Mrs Oimamu voluntarily shown the $100.00 note.
38. From the issues of timing including timing of the meeting, witness Alex has produced on inconsistence evidence which is unreliable.
39. The evidence of Mr Berry about the timing when the First Respondent’s boats travelled past Niu Island will be measured against the evidence adduced by the Respondent witness, as well as that of Alex’s evidence.
40. The Respondent’s case commences with a conceding statements by both the First Respondent and witness Francis Mamou. The First Respondent stated that on Saturday before his party left Honiara for his home village, Mr Mamou called him and insisted he called in at his village before continuing on his trip. Mr Mamou gave a positive note to that statement. And further attested to the fact that he had supported the First Respondent since he was a Provincial Member up to that moment.
41. The First Respondent left Honiara on Saturday midnight and arrived at Mr Mamou’s village about 6.30am on Sunday morning on 31^st March 2019. His party were welcomed on the beach and were led to the front of Mr Mamou house and where they were standing under some trees. The First Respondent states they were still wet as part of the lengthy travelling, therefore were standing in front of the house where they were welcomed and were given home pudding and some fish to eat. That part of the story was agreed upon or common to both witnesses.
42. Whilst they were eating Mrs Sarina Oimamu, the mother of Mr Mamou, gave a necklace to the First Respondent as a token of respect to the former Member of Parliament who was contesting at that time. The First Respondent then reached out to his pocket and gave her one hundred dollar note. That was a token in exchange for the necklace he was given. It was a traditional exchange to balance out for the food and necklace given.
43. The First Respondent adduced that he did not give any other money, goods or valuables to any other persons including Mr Mamou. The only money he gave was for the old lady Mrs Oimamu, who was 70 to 80 years old (the words of Mr Alex) in recognisance of her gift.
44. Mr Alex attempted to convince the court that he was the only person close to the first Respondent and Mrs Oimamu during their meeting near the beach. He was so close so he could able to hear the first Respondent told her to vote for him after he gave the $100.00.
45. To uphold his strategy he places Mr Mamou somewhat 20 meters away from where they was standing allowing himself as being a lone listener who heard what the First Respondent said.
46. Unfortunate for him for strengthen his evidence is lonesome. He needs evidence to corroborate his story. There was nothing as evidenced adduce to support him. Further weaknesses can be deduced from the first Respondent and Mr Mamou’s statements that for the whole entire period when the First Respondent and party were there, they were in front of Mr Mamou’s house. Mr Mamou further states that he did not see Mr Alex around. He cited him and his wife and child going to church after the First Respondent and party had left. That evidence alone has misplaced Mr Alex entire story. He was not seen at the spot he alleged, or area in the vicinity until the first Respondent and party had left.
47. The pivotal foundation of the second element of bribery which must be proved is the motive for the giving. Mr Alex’s evidence, the sole evidence lacks corroboration and tainted with fabrications cannot be relied on. The evidence of the First Respondent and Mr Mamou in connection to any words said to contain intention to induce by the use of the words for the lady to vote for the first Respondent is absolutely denied by both men. No such words were said when the first Respondent gave the $100.00 note to the old lady.
48. Mr Apaniai attempted to discredit the evidence of both men in cross examination by asking questions as to how many people were in the first Respondent party, how many canoes did the travel on, which pocket the first Respondent picked the $100.00 notes from.
49. I noted there are differences in number of people. However Mr Mamou is quite right by saying 10 – 15 but not so sure. Of course Mr Apaniai got his answer when the First Respondent got his pocket wrong. The question is, are those inconsistencies prevailing in all aspect to weaken to zero the entire evidence of both men? I would say no. The important element of proof is the nature for the giving and the motive. Both men adduced credible evidence. There were no words of inducement said when the First Respondent gave the money. And that all of them were gathering in front of Mr Mamou’s house where the giving was done and witnessed. And not on the sport near the beach as suggested by Mr Alex.
50. Further inconsistencies can be cited in Mr Alex’s evidence. He stated the First Respondent and party were rushed to go to their destination. That was corroborated to the First Respondent evidence. By the time it was 7.15 or little later the party should have left Mr Mamou’s village.
51. If Mr Alex left after 7.15 or 7.30 and reached Niu Island when the preacher had presented the sermon, then it is estimated to be some minutes past 8am. By taking Mr Berry’s evidence that the service started at 9am then Mr Alex should have arrived on the island by 9.30 or 9.45am.
52. To measure up with the evidence of Mr Berry that the First Respondent’s canoes drove past the island at 10am or 11am could not be believed, in fact they had left as early as 7.15 – 7.30am even before Mr Alex paddled to Niu Island to attend church services. So the evidence of Mr Mamou must be taken as truthful that he saw Mr Alex went past his village after the first Respondent and party had left, no wonder he was late for service.
53. Berry’s evidence merely concern with the giving of the money as an element which had been admitted. There is no shred of any evidence related to the motive behind giving of the money. Therefore his evidence could not be relied upon. Not even one that can be considered as corroborative to Mr Alex’s sworn evidence.
54. In the entire event he admitted being a liar. He lied about hearing Mr Hepe promising to pay Mrs Kove $2,000.00. He lied about seeing the boats travelling past the island about 10 or 11am. He also proved that Mr Alex lied about being at his mother’s house after Sunday services. However Mr Alex said he did not see Mr Berry that morning.

Is $100 a gift or bribe:

55. In the final analysis was the act of giving the $100.00 note to Mrs Oimamu a bribe or a gift.
56. There are certain facts to be considered. It begins with the age of Mrs Oimamu. In Alex’s evidence he said she was between 70 and 80 years. Whilst that may be a testament to one suggestion, however, in the words of Mr Mamou the son of the old lady confirms in court that his mother is roughly 78 years old. She is now weak and experiencing memory loss.
57. In a normal human thinking who would dare bribe an old woman of about 78 years old. Is there any guarantee she would cast her vote. Of course she is eligible. But how certain would be for a feeble old woman to walk or paddle to a polling station to cast her vote.
58. Out of the whole entire constituency, East Guadalcanal, the only allegation of bribery that finally makes its way through the judicial process, of which a judgment will be delivered is an act of bribing on old lady of about 78 years old. From right thinking person is that enough, if proof, to invalidate the result of the election? Was the giving of $100.00 fall within the meaning advocated by the Petitioners as bribe? Or was it a gift of appreciation as a custom reciprocation within the meaning the First Respondent advance other than bribe.
59. The second consideration is that the old lady was intentionally bribed to vote in order she be given money to start a small piggery or chicken project. What would be expected of a 78 years old lady to have her own piggery or chicken project? Has she got strength and mental capacity to manage even a small scale piggery or chicken project? This is one physical fact that does not support the evidence of Mr Alex. Common knowledge would dictate that an old woman of that age is not capable anymore to desire funds for project of such nature. That in my perception further diminishes the evidence of Mr Alex as improprietary of any good and reasonable sense.
60. Thirdly, it ought to be accounted for the fact that Mr Mamou had been supporting the First Respondent since he was a member of the Guadalcanal Provincial Assembly and as a Parliament Member in the current house. Undoubtedly the old lady who is Mr Mamou’s mother could likewise go along with his son supporting the First Respondent.
61. In such a circumstance, would it be possible for the First Respondent to bribe his own supporter. In Maina v Magga (^[8]) the court examine the logic of giving, in particular small gifts to a supporter. In this case a gift to an old lady of 78 years old. In the circumstances of this case giving of $100.00 to an old lady was not a bribe, she is part of the family of Mr Mamou who had been supporting the First Respondent all along.
62. Is the act of giving transacted by the First Respondent a bribe, charitable or was it done in custom? In Thugea v Paeni (^[9]) the court drew a line that a gift of charitable is not bribery even of political capital made out of it.
63. Therefore the only conclusion now left is that the $100.00 given to Mrs Oimamu was not a bribe but a gift of recognisance of custom principle of reciprocity which is very much part of the fabrics and adaptation by the Melanesian society of Solomon Islands. And that Marau area – East Guadalcanal is no exception, exchange of gifts is very much a life custom that prevails in the area. S.126 (4) of Electoral Act provides that giving in custom is a defence.
64. May I conclude base on the evidence adduce to proof the allegation, is such that a tribunal or competent court of law would entirely reject for failure to meet the required standard. This court is not entirely satisfied or the evidence that the allegation of corrupt practice, that is bribery, is made out. Therefore I must dismiss the petition forthwith.

Costs

65. There are arguments whether this court should award cost on indemnity basis or on standard basis. Under the High Court Civil Procedures Rules costs to be awarded is a discretionary power left for the court.
66. In exercise of the discretion I noted certain facts. It is amazed that the second and third named Petitioners do not take active role in the petition right from the beginning. It would be appropriate their names should have been withdrawn.
67. In court at trial, the court noted that the first Petitioner could not attend trial due to illness however there was no sick report tendered to the court.
68. After consensual the majority of the grounds are withdrawn. The petition was left with only two grounds. On the first ground the counsel for the Petitioners accept defeat by making it clear in his final submissions they lack evidence to proof on the standard. That concludes by admission of self-defeat and this judgment only concerns the second ground.
69. Nevertheless, the second ground right from the beginning is a weak ground. A Counsel who can study and assess the entire evidence can analytically be sure to conclude the petition is weak and should have some consultations where possible consider formal with-drawl, even after he closes his case. There is nothing of that nature and the Counsel for Petitioners are relying on expectation that the witnesses for the Respondent will produce an inconsistence evidence to weaken their case. That is a wrong presumptive effort. It is not always the case that the whole entire evidence lacks credit. One cannot rely on the opposition party to produce inconsistency. There may be part of it but not the rest. As a party carrying the legal burden should rely on their own evidence to proof and not to rely on the weakness of the other side. That should be the rule of thump. But that does not happen in this case. The entire evidence of the Respondent is credible and remains intact all through out. Therefore I must award costs against the Petitioners on indemnity basis.

Orders

1. Order is hereby made dismissing the petition in it’s entirely.
2. Costs are awarded to the First Respondent on indemnity basis.
3. Order no security for costs be paid out to the First Respondent until the bill of costs is conveyed to the Petitioner in order to reconcile the payment of costs.
4. A certificate will be served upon His Excellency the Governor General that the election of Bradley Tovosia as Member of Parliament for East Guadalcanal Constituency was valid in all respect.

THE COURT
JUSTICE R FAUKONA
PUISNE JUDGE

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^[1] Civil Case No. 279 of 2019 (2 September 2019) (Unreported)
^[2] SBHC 177; HCSI – CC 343 of 2010 (7 December 2011)
^[3] HC – CC 218 of 2010
^[4] HC – CC 455 of 2014
^[5] HC-CC 450 of 2014
^[6] [1985] SBHC 6; (1985 – 1986) SILR 31 (4 April 1985)
^[7] Bae v Ramofafia HC-CC No. 298 of 2019 (8 December 2019)
^[8] [2008] SBHC 19 (18 March 2008)
^[9] [1985] SBHC 5 (14 March 1985)