Vari v Agovaka [2020] SBHC 30; HCSI-CC 284 of 2019 (18 May 2020)

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Case name:	Vari v Agovaka

Citation:

Date of decision:	18 May 2020

Parties:	George Vari v Peter Shanel Agovaka

Date of hearing:	6,8,11,14 May 2020

Court file number(s):	284 of 2019

Jurisdiction:	Civil

Place of delivery:

Judge(s):	Kouhota PJ

On appeal from:

Order:	The Petition is dismissed The Court declare the election of Honourable Peter Shanel Agovaka as Member of Parliament for Central Guadalcanal is valid Cost against the petitioner to be tax if not agreed

Representation:	J Taupongi for Petitioner W Rano and Kilua for Respondent

Catchwords:

Words and phrases:

Legislation cited:	Electoral Act 2018, s108 (2), Electoral Act 2018, s109, s110, s108 (1) (2) ( a), s108 (5), s126, Electoral Act 2018, s 11 (5), Electoral Act Petition Rules, s 35 (1)

Cases cited:	Lusibaea v Filualea, Bae v Ramofafia [2019] SBHC89, Alisae v Salaka [1985-1988] SILR 31, Temahua v Vangara [2020] SBHC 13, Soalaoi v Tuki [2018] SBHC 88

The Petitioner Mr George Vari is a registered voter in the Central Guadalcanal constituency. He filed this petition pursuant to section 108 (2) of the Electoral Act 2018 seeking to invalidate the election of Honourable Peter Shanel Agovaka on 3^rd April 2019 as Member of Parliament for Central Guadalcanal Constituency.

In the original petition the petitioner alleged three grounds, (1) bribery, (2) Unlawful Campaign and (3) Undue Influence. By further Amended petition filed on 4^th May 2020, the petitioner abandon the ground of Unlawful campaign. The ground of Undue influence was dismissed following a preliminary application on points of law hence only the ground of bribery remain in the petition. There are five (5) allegation of bribery, they are summarised as follows;

The petitioner had tendered four sworn statements including his own in support of the five remaining allegations. The deponents were also made available for cross examination by the respondent. The respondent also tender sworn statements of 5 witnesses in support of his case. These form the evidence before the court.

Section 108 of the Electoral Act 2018 makes provisions for Election petitions. The Act provide for three types of petitions. They are,

Mr Vari’s petition is an election petition filed under section 108(1) and (2) (a) of the Electoral Act 2018. The definition of an election petition and its purpose are stated in section 108 (1) of the Act, it states;

It is clear that the question to be determined by the court in an election petition is whether a member of parliament was validly elected or not. Section 108(5) gives the court power to invalidate an election otherwise what is the purpose of filing an election petition and asking the court to determine if a member of parliament was validly elected or not.
Section 108 (5) also did two things;

It is important to note that the circumstances in which the court may invalidate an election are not closed. I am sure other circumstances would include the offences under part 9 of the Act and the common law offences referred to by Higgins J in Lusibaea v Filualea^[1].

I remind myself that the burden of proving the allegations is on the petitioner and he must do so on the required standard and that respondent does not have to exonerate himself.^[2] The standard of proof in election petition cases was discussed in number of cases previously by this court and the test as stated and generally agreed in these cases is “proof to the entire satisfaction of the court.”^[3] Whatever terminology used, the standard is a higher than the civil standard which is on the balance of probabilities but lower than the criminal stand of proof beyond reasonable doubt but still is a high standard.

The evidence adduced in support of the first allegation comes from the petitioner himself. The first part of his sworn statement set out the background to what I believe to be part of the reasons why he filed this petition. The details relating to this are stated in paragraphs 7 to 21. Briefly the paragraphs gave details of his previous support for the respondent since 2009 up to 2018, being his campaign manager, Chairman of the Constituency Advisory committee and his personal relationship with the respondent who is his nephew.

Petitioner further deposes in his sworn statement that he was concern about the influx of cross boarder registered voters which he fear will outnumber the actual residence of the constituency and his dissatisfaction with the respondent over the delay in providing building materials he applied for to complete his house as well as his decision to withdraw his support for the respondent. The evidence show that he seem to blame the respondent for the delay.

The petitioner did not pursue and adduced no evidence on the giving of the $100. His evidence relating to first bribery allegations was, after he attended a meeting at the respondent’s residence at Alligator creek, the respondent called him to his house to certify his children’s birth certificates. The petitioner is a commissioner for oaths. After this the respondent offered to drive him to ITA to catch transport home because it is difficult to catch a bus home at Alligator creek as stated in the evidence of the petitioner. On the way they stopped at the Capital park building and one of the passengers went out to get fish and chips for them.

As they took off from the capital park building parking area, the respondent took $200 and gave to the respondent by putting the money on the petitioners lap and uttered words mi wandem iu for stei wetem mi fo nara 4 yias or words to that effect. The respondent replied luk luk nomoa translated to English to mean (just wait and see). They did not talk about the topic further until the petitioner was dropped off at ITA.

The respondent says why he gave the money by putting the money on the petitioners lap was that if the two other passengers in the back saw him gave money to the petitioner he would be obliged to give them money as well. I know that is normal concept in custom of many places in Solomon Islands.

The petitioner under cross examination stated that he could not recall the respondent giving him money on a personal basis except when he did some work for the respondent. He states sometime he will pay him straight away and sometimes later.

Respondent in his evidence stated that he know the respondent well and that the petitioner is his uncle and that they grew up together. He stated in his amended defence and his evidence in court that after the petitioner retired, he practically live off the earnings of the respondent and the Constituency. He assisted the petitioner with school fees for the petitioner’s children, gave money to the petitioner whenever he met him on the streets and paid him money whenever he did work for him. The petitioner and the respondent confirmed that their relationship is more than money or politics.

When one look at their close relationship I am persuaded to accept the evidence of the respondent. In the Solomon Islands culture it is quite unusual that as a nephew and uncle and a strong political supporter the respondent would not give money to the petitioner as the petitioner stated. I am not convince by the petitioner’s evidence in this regard.

Bribery as defined in section 126 of the Act consist of elements that must be proven to the required standard either by direct evidence or evidence whereby the only reasonable inferences to be drawn from would go to prove the elements of bribery. In Alfred Solomon Sasako v Stanley Festus Sofu and Attorney General.^[4] Palmer CJ states “There are two mandatory elements for proof in allegations of bribery. Not only is it necessary to prove the existence of a promise, offer or gift, but also to establish that money was given to influence that other person”.

In the present case the petitioner was not able to prove that money given to him by the respondent if indeed money was given was a bribe and not a payment for certifying the petitioner’s children’s birth certificates. Thus even if I accept the petitioner’s evidence that the respondent told him to stay with him for another four years, the other element of giving money to influence him is still not proven. Having considered the evidence and other circumstances surrounding the petitioner and the respondents personal relationship I am not entirely satisfied when the respondent gave money as described by the petitioner amounts to bribery as defined in the Act. This allegation must be dismissed.

The petitioner tendered the sworn statement of Bernard Ilala in support of this allegation. The evidence of Mr Ilala is he was the youth coordinator of the Katihana SSEC Church from 2017 to early 2019. He was made aware that Katihana SSEC Youth had applied three times for musical instrument to the respondent but were never successful. After a meeting between his family and the youth Manager Mr George Teke he was advice to reapply and attached a pro-forma invoices and include the number of eligible youth voters in their church. Following that meeting he drafted an application letter on behalf of the church community. He went to Hyundai mall and get a pro-forma invoice for the musical instruments and gave the letter to his in law to handle the rest.

On 23^rd December 2018 he was informed by the Youth Manager George Teke that his application was approved and they should go and collect the instruments the next day. The instruments were collected the next day and taken back to Katihana village. A handover ceremony of the instruments was done on 27^th January 2019. There is nothing in Mr Ilala’s evidence that alleged bribery on part of the respondent or from which bribery could be the only reasonable inference to be drawn.

Contrary to the allegation of bribery, the evidence before the court clearly show the instruments were purchased with constituency funds after the Mr Ilala’s application on behalf of the church was approved by the Zone committee. There is nothing wrong with that, the application was approved in accordance with the established criteria stated by the respondent in his evidence. This is the criteria used by the zone committees when considering funding for projects.

Counsel for the petitioner referred the court to the case of Soalaoi v Freda Tuki^[5] where the court held that respondent giving money to the church was corrupt and vote buying. The facts of this case can be distinguished from the facts in Soalaoi v Freda Tuki^[6] In the Solaoi’s case, the money given I assumed was the respondent own money. In the present case the money used to purchase the instruments was public money (RCDF) which the respondent was obliged to use to assist constituency projects. A Member of Parliament fulfilling his legal obligation in assisting his constituents is not bribery. In the present case the funding was approved before Parliament was dissolved although payment of the instruments was done after. On the evidence before the court I am satisfied the allegation of bribery was not made out or proven on the required standard. The second allegation is dismissed.

The third allegation of bribery was that the respondent on March 16, 2019, the Respondent approved and, by his agents, gave to William Tumu water pipes for a water and sanitation project for Sali Village with the intention to influence him and residents of Sali Village to vote for the Respondent. No evidence was tendered in support of this allegation hence the allegation is not proven and must be dismissed.

The petitioner tendered the sworn statement of Mr Jerold Jimmy in support of the fourth allegation. Jerold Jimmy in his sworn statement said on 1^st April 2019 he received a phone call from the Constituency Project Officer Mr Kenneth Erick who told him there would be a float as part of the Respondent’s election campaign that day and that he was looking for vehicles to hire for the float. Mr Kenneth Erick asked what the charge for his vehicle is and he told him $500.00. Kenneth accepted the charge and instructed him what to do. Later that day he picked the respondents supporters from Areatakiki village and drove to the Respondents residence at Alligator Creek. His vehicle joined the float. He waited but Mr Erick did not pay him that day.

The next day he met Kelly Allen at grass hill who told him to go and see Erick at Alligator creek. Whatever was said when Jerold went to see Kenneth Erick I am sure he went there purposely to collect the money for hire of his family vehicle used for the float the previous day. The $500 Kenneth Erick gave him was for the hire of his vehicle as agreed to the previous day and not a bribe to influence him vote for the respondent. Whatever Erick said to Jerold when he gave him the money does not change the fact that the money was payment for hire of his vehicle and not influence him to vote for the respondent. I am not satisfied to the required standard that the money was given to Jerold Jimmy to influence him vote for the respondent. This allegation is dismissed.

The fifth allegation was that, on 2 April 2019, George Teke and Japan Chaku, being agents of the Respondent, gave to Whitlam Kikolo some food at Manangikiki Village with the intention of influencing him to vote for the Respondent. Mr Whitlam Kilkolo‘s sworn statement was tendered as evidence in support of the allegation. He evidence was that on the day before the election he was at his house at Manangikiki village. He describe his house as close to the entrance to the village. He was at his house when a red Land cruiser arrived at about 4pm. He know that the vehicle was owned by Mr George Teke who was a campaign manager for the respondent and also chairman of the Zone 4 committee. He saw in the back of the vehicle Mr Japan Chaku, Chief Silas Tome and Alick Vae with other people he did not know or recognised. He said his house is about 10 meters from Mr Chaku’s house. He observed goods being off loaded and carried to Japan Chaku’s house. He then saw Mr Chaku sharing the food at his house.

At about 6 pm Mr Epherem Jurandu a friend Mr Kikolo said was living at his house arrive with food and said food was given by the respondent. It later transpired that Mr Jurandu is not a friend but is Mr Kikolo’s nephew. Mr Epherem Jurandu did not give evidence hence Mr Kioloa’s evidence that food was given to him by the respondent was hearsay, and must be disregarded.

Mr Kikolo evidence about the visibility between his house and Mr Chaku house was contradicted by Mr Chaku who said because of the grass and bushes in between and the slop one cannot see between the houses. With regard to the food Kikolo said were brought by Epherem Jurando there is no evidence that they were given by the respondent or his agents with the intention to influence Mr Kikolo to vote for the respondent. In fact Mr Kikolo evidence about the food given to him and other people of Manangikiki village was mere conjecture, speculative and hearsay. The court cannot rely on such evidence. This allegation is also dismissed.

In accordance with section 111(5) of the Electoral Act 2018 read with rule 35(1) of the Electoral Act Petition Rules 2019, the court will give a certificate of its decision to the Electoral Commission, the Governor General and the Speaker of Parliament in due course.

^[1] SBHC-CC 275 of 2019 ( 17 April 2019 )
^[2] Allan Jose Bae v Rexon Ramofafia SBHC- CC 298 of 2019 ( 8 December 2019)
^[3] Alisae v Salaka [1985-1988] SILR 31, Temahua v Vagara SBHC –CC 282 of 2019 ( 5 August 2019)
^[4] SIHB cc-277 of 2019 (17 February 2019)
^[5] SBHC –CC 455 of 2014 ( 8 October 2018)
^[6] SBHC- CC-455 of 2014 ( 8 October 2018)

High Court of Solomon Islands

Vari v Agovaka [2020] SBHC 30; HCSI-CC 284 of 2019 (18 May 2020)