Choylin Yim Douglas v Parapolo [2020] SBHC 4; HCSI-CC 296 of 2019 (23 January 2020)

	Home \| Databases \| WorldLII \| Search \| Feedback High Court of Solomon Islands

Case name:	Choylin Yim Douglas v Parapolo

Citation:

Date of decision:	23 January 2020

Parties:	Choylin Yim Douglas v Bartholomew Parapolo

Date of hearing:

Court file number(s):	296 of 2019

Jurisdiction:	Civil

Place of delivery:

Judge(s):	Maina PJ

On appeal from:

Order:	Petition is wholly dismissed The petitioner to pay the costs of the Respondent such costs to be agreed or taxed The Registrar promptly give a certificate of this decision to the Electoral Commission, the Governor General and Speaker Judgment Accordingly

Representation:	Mr. A Hou for the Petitioner Mr. C Hapa and Dolly for the Respondent

Catchwords:

Words and phrases:

Legislation cited:	Electoral Act 2018, s126,127

Cases cited:	Philip v Auga [2019] SBHC 91, Maetia v Dausabea [1993] SBHC 29, Fono v Fiulaua [2011] SBHC 6

The Petitioner Choylin Yim Douglas filed a petition disputing the election of the Respondent Bartholomew Parapolo who was declared as member for Ngella Constituency in the National Election held on 3^rd April 2019. The Petitioner seeks orders that the Respondent was not duly elected and that the election be declared void.

The Petitioner was a candidate in the Ngella Constituency in the election held on the 03^rd day of April 2019. The candidates were Petitioner Choylin Yim Douglas (Petitioner), Bartholomew Parapolo (Respondent), John Selwyn Vasuni, John Kouni, Kenneth Sagupari, Joseph Hagi, Charles Fox Meke, Stephen Watson and Fredrick Noel Douglas.

The Returning Officer had declared or the returned of Bartholomew Parapolo as being duly elected.

There were 14 grounds and relate to alleged acts of bribery and undue influence.

Two were allegedly committed by the Respondent and twelve allegedly committed by agents, supporters or others. The Petitioner contended that the election of the Respondent should be declared void as he committed offence under sections 126 and 127 of the Electoral Act 2018.

At the hearing or trial, 4 grounds were withdrawn as the witnesses did not turn up to give evidence and cross examined.

Before the election, the agent or supporters of the Respondent gave colour bond roofing irons, engine (OBM), promised to give money, and personally gave the sum of money and materials to people to influence them to vote for him during the election.

During the election day, the supporter of the Respondent gave a packet of Solbako, a Solbako Roll, five (5) packets of Tea Master and the sum of SBD$30.00 to a voter and told her to vote for the Respondent and voter to actually vote for the Respondent.

Before the election on Sunday 03^rd March, 2019, the Respondent whose symbol was ship while launching his campaign uttered words in the Ngella dialect to the effect that the ship has now opened its doors and that the public who attended the launching should board it from then on until 02^nd April, 2019 when it closed its’ doors. And words threatened them in the Ngella dialect with words to the effect that anyone who failed to board the ship shall swim to wherever he/she can reach within the next four (4) years or so, a statement which in the circumstances threatened them to either vote for him or suffer the consequences for the next 4 or so years.

With the 8 grounds of bribery, the related issues is, whether the agents, supporters of the Respondent:

With the two grounds of undue influence, whether the words said by the Respondent at the campaign were threat and the act by the person was physical restraint or attempts to influence another person?

A proof in the election petition is higher than the balance of probabilities^[1] and so the Petitioner is required to prove the intents or purposes, where the ground is bribery or undue influence or it is necessary to prove the elements as with criminal offence.

The bribery and undue influence offences in sections 126 and 127 of the Electoral Act contain a range of corrupt practices or unlawful inducements for the offences. These provisions in the Act prohibit illegal acts or improper inducements to persons, to electors, or candidates in an election.

Intention is an integral part of the offence and section 126 of the Act state that a person commits the offence if the person directly or indirectly promises, offers or gives a benefit to another person; and the person does so with the intention of influencing the other person vote or refrain from voting at an election; or vote in a particular way at an election; or influence a third person to vote, refrain from voting or vote in a particular way at an election.

And section 127 of the Act state that a person directly or indirectly, by violence, intimidation, threat or physical restraint, attempts to influence another person to vote or refrain from voting at an election; or vote in a particular way at an election.

The burden is on the Petitioner to prove by the required standard or the entire satisfaction of the court.

Again I wish to stress my statement in the case Harry Philip v Auga^[2], that although it may be that the grounds alleged in a petition charge a criminal offence, the fact is that the petition does not have the same focus as a criminal court. The court look to the validity of an election and it is not if a respondent is liable to a criminal penalty.

With election petition case, one act of bribery or undue of influence proven to the entire satisfaction of the Court according to the standard and if committed by the Respondent is sufficient to invalidate an election. And by supporters or others if it affect the result of the election.

There are alleged participations or involvement of Constituency Development Officer (“CDO”) and Project Officer (PO) in this case. And before I will deal with grounds in the Petition, it is also important to understand their situation or status with the Respondent when Parliament is dissolved or at the time of election.

Parliament dissolved on 17^th December 2018 and by that date the Respondent was not MP for Ngella Constituency. By that date the CDO and Project Officer who had assisted or worked with the Respondent are former CDO and Project officer. They were not agents but simply the “formers” and any pledges or support to the Respondent they only be “supporters”.

For this case former CDO David Teva was a supporter of the Respondent and notably the Electoral Act only refer to polling and counting as agents.

Mr Hou for the Petitioner submitted the bribery offences were committed by the persons, supporters of the Respondent. He submitted that the Petitioner through his witnesses had presented sufficient evidence to the offences.

And Mr Hapa for the Respondent submitted that his client denied in his evidence that all the grounds in the petition, their witnesses had produced evidences showing the alleged part on them were not true.

Firstly, it is curious to note in this Judgment, the Petitioner did not make any sworn statement nor gave any oral evidence in the hearing to support her Petition. It is in the petition filed in court that stated the Petitioner with Respondent with seven other candidates contested the Ngella Constituency, Central Islands Province. She was an unsuccessful candidate as the seat having been declared in favour of the Respondent, and she is challenging the elected MP of the Constituency.

All the grounds of the Petition relate on facts, and the court will consider the evidences with or on the credibility of the witnesses and evidences.

Before the election on 21^st December 2018, one Ishmael Vurebona of Gumba village in Small Ngella loaded and transported to Ngella, fourteen (14) pieces of colour bond roofing irons. The Respondent through David Teva (former CDO) gave the irons to Ishmael Vurebona to influence him to vote for the Respondent during the election.

Petitioner witness Luke Kemakeha made a sworn statement and stated that he heard from the people at the time of loading the copper on the boat that the copper were given to Ishmael Vurebona by the Respondent and he saw David Teva’s name on one of the piles.

It is not disputed that the roofing copper irons had been loaded to the boat at the medical compound on the date. Ishmael Vurebona in his evidence stated it was not 24 pieces of iron but was 36 sheets. He is a teacher and bought the roofing iron by his own money on 20^th December, 2018. He sought assistance from David Teva as he was familiar with this type of purchases and they went to Solomon Sheet Steel when he bought them. Without his knowledge, David Teva’s name was written on one of the copper pile. But Ishmael said it may be as the people at hardware were familiar with him. He collected the copper on the next day by himself and took them to his home in Ngella.

Former CDO David Teva gave evidence stating that he was familiar with the Solomon Sheet Steel and he went with Ishmael Vurebona there to assist him to purchase his housing materials.

The evidence is hearsay as the Petition witness heard the story that Respondent gave the irons to Ishmael Vurebona from the people who came on a boat at the time of loading the copper on the boat. With former CDO’s name on one the copper file there is no evidence to prove and support as alleged. This ground is struck out.

Before the election on Thursday 17^th January, 2019, the Respondent through the said former CDO gave a further 24 pieces of 14 feet colour bond roofing irons to one ‘Nancy Pule’ of Sand-fly Island within the Constituency to influence her to vote for him during the election.

Petitioner witness Robert Musua stated in his evidence that on 17^th January, 2019 before the election, Bartholomew Parapolo through the said former CDO gave these materials to Nancy Pule. The roofing irons were delivered at the medical compound at Bosamata’s house.

When cross examined on this evidence this witness stated he was not present or saw the roofing irons when they were delivered at Mr Bosamata’s house at the medical compound.

Former CDO David Teva gave evidence and confirmed that Nancy Pule was in fact a recipient under the housing scheme for the constituency and her irons were delivered to her on 17^th December 2018.

The evidence from Petitioner witness Musua for the delivery of the items to Nancy Pule was rather ambiguous and vexatious as he was talking about what did not see himself, not even evidence from any other person on this delivery, otherwise a story he heard from someone and or hearsay. Beside the hearsay, there is no evidence of any Respondent’s instruction and or linking to him. This ground is struck out.

Petitioner alleged that on Wednesday 23^rd January, 2019 before the election the Respondent through former CDO gave a forty (40) Horse Power Suzuki engine to one ‘Danny Kola’ of sand-fly Island within the Constituency to influence and vote for the Respondent at the election.

Again the witness is Robert Musua who had made a sworn statement stating that he asked Danny Kola about the engine and Kola told him that former CDO gave the engine to him.

Former CDO gave evidence that his record did not have any name as Danny Kola except in the record that shows a person by the name of Danny Parapolo who had received a 40 Horse Power Suzuki engine prior to December 17, 2018

Having weighed the evidence and submissions, I am not satisfied that the former CDO gave an engine to a person named as Danny Kola. And briefly petitioner witness is totally unimpressive and difficult to believe. Danny Kola did not give evidence. It is all hearsay evidence and this ground is struck out

The Petitioner alleged that Bartholomew Parapolo again through the former CDO gave another 40 Horse Power Suzuki engine to one ‘Mode Bae’ to influence him to vote for the Respondent at the election.

Again as with above grounds, the Petitioner witness is Robert Musua and according to his evidence he did not enquire about the engine. This witness overheard the engine belonged to Mode Bae when Mr Marvin asked the people who were loading the engine of the owner. It was stated at the conversation that the engine belongs to Mode Bae.

I accept CDO’s evidence in reply to the allegation that there was no record of the name of Mode Bae except George Mode who received a 40 Horse Power Suzuki engine prior to December 17, 2018.

It is alleged that the Respondent through Adrian Siro Dean promised to give money to Abraham Nuopla for him to use or to pay the supporters of other candidates at the Constituency to switch allegiance to Bartholomew Parapolo and vote for him during the election.

Witness Abraham Nuopla made a sworn statement and stated that Adrian Siro Dean, a nurse at Taroaniara Clinic called him by phone in February 2019 to go to him and talk about a plan. Witness Nuopla said he made his way to Taroaniara and met up with Adrian Siro Dean in the medicine storeroom. At their talk, Adrian Siro Dean promised to give him money that was to be provided by a Tulagi businessman Fredrick Noel Douglas to pay him and supporters of other candidates to switch allegiance to the Respondent.

Adrian Siro Dean gave evidence and denied making any phone call and met the witness Nuopla on or around 15^th February 2019 at medicine storeroom at the clinic which was a restricted place. He said there was no money given to anyone for the alleged purposes and by that date he had already transferred to Salesapa Clinic.

Petitioner witness Nuopla is unimpressive and his evidence is difficult to believe. I am not satisfied and this ground is struck out.

On 28^th March, 2019 before the election, Bartholomew Parapolo through his said Campaign Coordinator Clement Pepa distributed (15) bags of 10kg rice, thirteen (13) cartons of Mamei Noodles, five (5) bales of sugar and three (3) cartons of mixed goods provided by the former Ngella CDO amongst the registered voters and loyal supporters at Halavo village in Big Ngella within the Constituency.

It was intended to influence them to not only remain loyal to him but also vote for him during the election and contrary to section 126(1)(a) and (b)(i) and (ii) of the Act.

Petitioner witness Mark Marvin made a sworn statement and stated on 28th March, 2019 he arrived at Mokolo building in front of Lord Howe Settlement from Ngella. At about 12 noon he was there when Stephen Pahea a driver of another boat with some boys arrived with the goods. As they were loading the goods to the canoe he heard Christopher Saeni asked Stephen Pahea as who owned the goods. And Pahea replied to him that the goods were given them by the Respondent Parapolo. The sworn statement bears that alone evidence and nothing else.

At the cross-examination, witness Mark Marvin further stated that Chief of Halavo village, Clement Pepa had distributed to the people of Halavo village.

By his sworn statement dated 16^th October 2019, Chief Clement Pepa denied the respondent procured the goods for his people and his village never received any such goods from the respondent. Chief Clement Pepa himself gave evidence and denied receiving the goods and had not distributed anything to the people of the village.

Weighing the competing evidence and submissions on this ground, I am not satisfied with Petitioner witness evidence as his evidence is hearsay, the fact that there is no supporting evidence from Christopher Saeni and Stephen Pahea and definitely and alluded by counsel for the petitioner no alleged goods were distributed to the registered voters and loyal supporters at Halavo village in Big Ngella within the Constituency.

I decided to deal with these three grounds together as the evidences is from one witness and cross-examined on the grounds at the same process.

With Ground C 3 (i) it concern a written Statement made to the Police to compliment or purportedly to prove Ground 3 B (i). It was made or occurred on 15^th May 2019, a month after the election. Frankly such would not form any basis or ground of a petition and therefore struck out.

With the Ground 3 B (i), it is alleged that on the Election Day, 03^rd April, 2019 the Respondent through Kim gave items and money to one ‘Anna Sisa’ and told her to vote for the Respondent.

Witness Anna Sisa made sworn statement that Kim at Hagalu village in Big Ngella on the Election Day gave a packet of Solbako, a Solbako Roll, five (5) packets of Tea Master and the sum of SBD$30.00 to her and told her to vote for Respondent.

Respondents’ witness Edwin Kim gave sworn evidence and denied the allegation against him.

Kim stated that he is 15 years old and at the time of election he was at school in Gelailau High School at Small Ngella, opposite Bungana. He did not go back at Hagalu Village as he was not a registered voter and there was no transport (OBM).

Counsel Hou for the Petitioner submitted that the items or things given to the witness by Edwin Kim was to influence her to vote for Respondent and not for the Petitioner, her candidate of choice.

And with Ground 4 B (i), on the Election Day, the Respondent through Jessie led Anna Sisa to the Polling Station to vote for Respondent.

Witness ‘Anna Sisa’ stated that on the Election Day, 03^rd April, 2019 between 8.00am and 9.00am, the Respondent through Jessie at Hagalu village in Big Ngella within the Constituency having held the hands of Anna Sisa and led her to the Polling Station to vote for Respondent under her seriously watchful eyes acted within physical restraint against her.

Jessie Kolo made a sworn statement and stated that during the Election Day his son Edwin was at school in Gelailau High School. She denied what Anna Sisa stated in her evidence that she led her to the Polling Station to vote for Respondent. Jessie said she had voted in the early morning as soon as the polling station opened and she never met Anna Sisa, not even saw her at the Polling station. Further Jessie said that Anna Sisa is not a daughter of any of her mother’s sibling as stated she stated in her sworn statement.

Again this Respondents’ witness stated that this Anna Sisa is known in the village to be of unsound mind.

At the cross- examination, Anna Sisa did not know the other name of Kim (Edwin) but she seemed to maintain in her evidence that Kim’s mother (Jessie) is her sister and Kim is her nephew. It was also noted from the cross examination that this witness was not able to recalled the date of election (Election Day “3^rd April 2019”) when she said to have met Kim and Jessie, not even can recalled the date she gave written statement to Police and as with Ground C 3 (i).

With the respondent witnesses’ evidence that Anna Sisa is of unsound mind, I do not accept such evidence as there is no evidence to support it.

I have weighed the competing evidence and submissions on this ground. Beside the evidence from the Respondent witnesses denying the alleged offences, the petitioner witness (Anna Sisa) was not impressive, her evidence was difficult to believe, not even any evidence to support her and linking Kim and Jessie with the Respondent.

The essence of the allegation in Ground 4 A (i) is that before the election, the Respondent whose symbol at the election was ‘SHIP’, when he spoke in Ngella language with the words as the ship has now opened its doors and that the public who attended the launching should board it from, then on until 02^nd April, 2019 when it closed its doors.

Four witnesses Grace Cuff, Dudley Baua, Augustine Mimmy and Paul Tahitorea made sworn statements. All confirmed the symbol of the Respondent at the Election was ‘SHIP’ and on 3^rd March 2019 they went to the lodging of the Respondent’s campaign at Bokolonga Village in Small Ngella. There were a lot of people and the Respondent used speaker to talk at the campaign.

All the witnesses said the words of Respondent was a threat and by Ngella dialect and context or their interpretation they shall suffer within the next four years if they did not board the ship. None of the witnesses what mean by suffer or consequences than saying that in Ngella dialect that what the Respondent said was threat.

At the cross examination the witnesses maintained that the words of Respondent was a threat.

Respondent made a sworn statement and when cross examined by counsel for the Petitioner he stated that he was a lodging of his campaign for the election, a candidate for Ngella constituency and his symbol was “Ship”. He said he told them these words of boarding the ship and or to show or illustrate of his symbol the “Ship”. He denied the words are or as threat.

The words alleged as threat were said in language or Ngella Dialect however the Petitioner did not provide the exact words in Ngella Dialect, at least for the court to examine with the interpretations of the words or statement. The Petitioner’s witnesses only referred to them as words of threat.

Generally, threat of all sort has own consequences and with the words it must be shown by evidence the likely result, repercussion or impact but nothing of that sort was disclosed by the witnesses than just saying, it was as threat. The witnesses’ just made assumption, or contextual interpretation of the words to be threat but less slim to believe, not even to convince that it was a threat.

It was an election campaign time and the candidates of the election had a right to go out to the public places and campaign or talk to the people to convince them to vote for him or her. It was also a time when the candidates will talk openly on issues and their policies or intend to do if they are elected in the Parliament.

The words were said in Ngella language and there was no exact words with interpretation made or available in court. What seem to be threat is when the witness put those words in their context or interpretation.

The Respondent was talking to the public meeting or lodging his campaign at Bokolonga Village, Ngella with his symbol “ship” and stated that he was making illustration of his symbol. Notably these words were said a months before Election Day.

I would agree with the counsel for the Respondent that no evidence suggested that undue influence last for a month or whether there has been an on-going threat exerted by Respondent towards the Petitioner’s witnesses. Interesting to note, when asked at the cross examination, Petitioner’s witness Dudley Baua stated during the election he voted according to his wish.

With the words as “open door”, “close door” and “risk of swimming” they were said in the public place or to everyone attending the meeting. It was not specific to the Petitioner’s witnesses.

For the words said by the Respondent, he used his symbol in conveying his campaign strategy or to persuade the registered voters to vote for him at the election. After all, campaign is a movement or crusade provide by section 5 of the Electoral Act. And as this provision states, it is an activity, motion or gesture of a candidate that is intended, calculated or likely to affect the result of an election or influence an elector in relation to the casting of his or her vote at an election.

I am not satisfied with Petitioner witnesses’ evidences and this ground is struck out.

All grounds of the petition have failed. And accordingly I dismiss the whole petition.

High Court of Solomon Islands

Choylin Yim Douglas v Parapolo [2020] SBHC 4; HCSI-CC 296 of 2019 (23 January 2020)