Efona v Fugui [2020] SBHC 6; HCSI-CC 285 of 2019 (14 February 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Efona v Fugui
Citation:
Date of decision:	14 February 2020
Parties:	Alfred Efona v John Moffat Fugui, Attorney General
Date of hearing:	6 January-9 January 202, 14 January 2020
Court file number(s):	285 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona PJ
On appeal from:
Order:	1. That the election of the first Respondent, as Member of Parliament for Central Honiara, was not done in a free and fair manner. 2. Consequently, order is hereby made that the first Respondent was not duly elected or returned, and that his election was null and void. 3. In consequence, the first Respondent is hereby disqualified to Contest in any bye election should that election was conducted before the date of the next National General Election. 4. That costs of this proceeding is payable to the Petitioner by the first Respondent on standard basis. 5. The Governor General, as the Head of State, be informed of the result of this judgment.
Representation:	Mr. D Lidimani for the Petitioner Mr. L Kwaiga for the First Respondent Attorney-General not taking active role but present throughout the hearing
Catchwords:
Words and phrases:
Legislation cited:	Repealed Act, s66 (1), Electoral Act 2018,s126 (1) (b) (ii), Electoral Act Schedule 3 (2), Blackstones Criminal Practice, p1225-1230, Criminal Justice Act 1967
Cases cited:	Ha’apio v Keniasina [2011] SBHC 177, Fono v Fiulaua [2011] SBHC 6, Alisae v Salaka [1985] SBHC 6, Menyamya Open Parliamentary Election [1997] PNGLR 302, Temahua v Vangara , Wakefield [1874] 2.0 MH 100, Lovantila v Returning Officer of North East Guadalcanal Constituency [2002] SBHC 106, Sopage v Maneka [2016] SBHC 132, Bae v Ramofafia [2019] SBHC 89,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 285 of 2019

BETWEEN:

ALFRED EFONA
Petitioner

AND:

JOHN MOFFAT FUGUI
First Respondent

AND:

ATTORNEY GENERAL
(Representing the Returning Officer for Central Honiara Constituency)
Second Respondent

Date of Hearing: 6 January-9 January 2020, 14 January 2020
Date of Judgment: 14 February 2020

Mr. D Lidimani for the Petitioner
Mr. L Kwaiga for the First Respondent
Attorney General not taking active role but present throughout the hearing

JUDGMENT ON ELECTION PETITION

Faukona: This petition was filed on 20^th May 2019, by Mr. Alfred Efona (the Petitioner) against John Moffat Fugui (the first Respondent), who was declared the winner after the count in the Central Honiara Constituency. The count resulted in the first Respondent polled 4,028 votes and his runner up the Petitioner polled 2,940 votes, a majority of 1,088 votes.

2. On 3^rd April 2019, Solomon Islands went to the polls to elect new Members of Parliament.
3. As a basis of our united nation we agree and pledge that our government shall be based on democratic principles of universal suffrage which provide for right of voting in a political election. This right was guaranteed to all citizens of Solomon Islands to cast a single vote in favor of a candidate of their choice.
4. To protect this fundamental right being exercised freely and uninterruptedly, legislation is put in place to guide and impose penalties upon prospectus candidates, agents or strong supporters and anyone who commits any offence related to the conduct of the elections.
5. That act of freedom to cast must not be influenced, dominated or tampered with by certain elements fabricated by men to jeopardize free and fair elections.
6. It is this fundamental rationale that legislation is enacted to protect this basic rights and fundamental freedoms of citizens, to ensure election environment is peaceful, adoptable, and casting of ballot papers are done in a free and fair manner.
7. After casting of ballot papers the votes were counted. The result of the winning candidate and the first runner-up are as exposed above in paragraph one.
8. Having aggrieved of the results the Petitioner filed this election petition on 20^th May 2019. The petition consists of six grounds. Three of which were withdrawn, and three were left to proceed through judicial analytical process of which determination will be recorded at the end hereof.

The Law:

9. Legal regime available for utilization in determining an election petition case is the National Constitution of Solomon Islands, in particular Chapter V1, Part 1 and the Electoral Act 2018, and the Electoral Regulation 2019.
10. In addition, and by virtue of the case of Airahui v Kenilorea (Jr),^[1] His Lordship CJ Albert Palmer ruled allowing relevant provisions of the repealed Act, the National Electoral Provisions Act, to come into play in the absence, or where the new Electoral Act is silent about an issue.
11. Another important law is the law in case precedence or authorities which this court has profoundly adopted so far.
12. It leads as to two fundamental approaches in dealing with offences as pointed out in the election processes. One is termed as “specific bribery” and the other is “general bribery”.

In regards to specific bribery it was profoundly attributed to in the case of Ha’apio v Kenianisua,^[2] which the court stated;

“The Petitioners have succeeded in establishing the necessary standard of proof, that the Respondent committed at least one corrupt practice namely handing out $50.00 to each of the 10 persons date in July 2010 in order to induce them to vote or refrain from voting ... if the Petitioner establish to the standard of proof required for one act of corrupt practice by the Respondent the election is not valid”.

13. The above paragraph indeed was an adaptation of the meaning entrenched in S.66 (1) of the repealed Act. That section in totality has advocated the two important aspects of corruption of which bribery is a part. The first concerns an elected candidate or his agent committed a corrupt or illegal practice. If so, shall render the election result invalid even by one single act. The second is bribery alleged to have been committed by ordinary voters.
14. In the eyes of law a winning candidate or his agent are equally treated in terms of corrupt and illegal practice where bribery is part. This is termed as “specific bribery”.
15. The second aspect of S.66 (2) in terms of corrupt or illegal practice (bribery is part) are offences alleged to have been committed by any ordinary supporter of the winning candidate, for the purpose of promoting or procuring the election have so extensively prevailed that may reasonably supposed to have affected the result of election, shall be void and shall be disqualified from being a member of Parliament.
16. In an attempt to fortify the legal aspects of S.66(1) and (2) I shall refer to the case of Fono V Fiulaua^[3], where His Lordship Justice Goldsborough stated, that S.66(1) does not suffer the qualification found in S.66(2) of the 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 sub-section (2) which speaks of “general corruption.” Subsection (1) is self-confine and need not rely on subsection (2) to import its meaning.
17. What his Lordship attempted to verify is that, any proven allegation of corrupt act or illegal practice (bribery as part) done by supporters or ordinary supporters of the winning candidate, not an agent or campaign manager, the number of people bribed, unduly influenced in order to vote for the winning candidate, or abstain from voting or vote in another way, must amount to a total number that will off-set the majority of votes that secured the winning candidate. Should the counted numbers fall short of the majority votes, that cannot be taken as reasonably supposed to have affected the result of the election. Simply the result stood as it is, conceivably subsection (2) of S.66 is advocating what the law term as “general corruption”. And “specific corruption” in S.66 (1) is alluded to in paragraph 13 and 14 above.

The standard of proof:

18. The standard of proof applied in election cases are definitely higher than the ordinary civil standard of proof that is proof on the balanced of probability, though falling just short of the criminal standard, beyond all reasonable doubt.
19. In the Case of Alisae V Salaka^[4] the Court adopted the statement alluded to by PNG Chief Justice, Justice Frost in the case of Re Menyamya Open Parliamentary Election^[5], which he said, “if am not 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 in application I consider there could be no real practical difference”.
20. Chief Justice Wood in the above case, in his own words agreed at page 5 stated “If I am to uphold the petition the ground of it must be proven to my entire satisfaction and must be sure that the ground has been made out”.
21. Again Honourable Chief Justice, CJ Palmer, stated in the case of Temahua v Vangara,^[6] that the standard is higher than the civil standard and lower than the criminal standard. However, the standard will require clear and cogent proof to the court’s entire satisfaction. The evidence should be clear and unequivocal in order to enable the Court to be entirely satisfied that the allegation of corrupt practices is made out and not simply on the mere balance of probability.
22. It is now a settled law that the standard of proof is proof to the satisfaction of Court. By legal implication the first Respondent does not need to exonerate himself, the burden of proof rests upon the petitioner.

Public Policy:

23. This issue was raised at the oral final submissions by the Counsel for the Petitioner. That Solomon Islands is rated as one of the most corrupt nation in the region. The question to pause is, is that true? The truthfulness of any issue, existence or prevalence, must be proved by evidence.
24. 5More so particularly when that issue is raised in Court. There must be evidence to support. Public policy is public perceptions. Often it is a subject that is kicked around the streets in owe and condemnation of attitude, behavior and standing. Most probably the rationale is to undermine the sovereignty and integrity of a nation. But the public cry is not purposely for the Courts to make a determination but the Executive Government to address.
25. In any event this issue finally creeps into the courts avenue. However, the court stands by the principle that the adversarial court system adopted by this nation requires evidence to proof. That is, if it is part and partial of the substance of this case. Unfortunately that is not the case here.
26. The issue of public policy is not part and partial of this petition. A line must be drawn that only qualified issues are entertained in Court. Any manner of issues containing perception unrelated to this petition should not be raised. I cannot accept such for the sole reason that it is an attempt to influence the capacity of the Court and divert court’s attention. However, I assure the parties this will never deter the normal prime function of the Court to determine the three allegations that are before it base on the availability of evidence and no more.

Grounds the basis for this petition:

27. The general over view of the grounds can be summed up as comprising two allegations of bribery against agents of the first Respondent, and one allegation of bribery against the first Respondent as the winning candidate.
28. An agency relationship is defined by S.126 (1) (b) (iii) of the Electoral Act 2018, that its operation and function must be in connection to the elections. There must be three parties indulged in the commission of the offence of bribery. Therefore the pre-requisite element that must exist in this process is coordination and conveying instructions with intention to influence the other person. Simply mean, there ought to be a strategy in place upon which when carried out purposely to win votes.
29. In the Wakefield Case^[7] which I quoted in the case of Lovantila V Returning Officer of North East Guadalcanal Constituency^[8] states;
    • “Accordingly a wide scope has been given to the term “agency” in election matters, and a candidate is responsible generally, you may say for the deeds of those who to his knowledge for the purpose of promoting his election canvass and do such other acts as may tend to promote his election, provided the candidate or his authorized agent have reasonable knowledge of those persons are so acting with that knowledge.
    • Agent covers a wide range of canvassers, committees and supporters. The candidate is taken to be responsible for their actions even though he may not have appointed them as agents. Knowledge of what they are doing does not need to be proved against a candidate for him to be fixed with their action”.
30. The definition is so concise. It covers large area concerning the functions of agents in relation to the principle. On the second part of the quote, agent may not be appointed, as long as the candidate agrees or condone to what they are doing, they are his agents.
31. At paragraph 28, I quote;
    • “On the issue of agency, whilst I concur with Wakefield’s definition, it is indeed too open without limitation. Anyone with evil motive can concoct evidence by conspiracy or any other form to defeat the entire process in order to invalidate any election result. A subsequent effect of a person unfamiliar to the candidate, but who promotes his election is an uncalculated risk and I am quite cautions. A good law does not permit negative consequences to proliferate justice which must be upholding at all times”
32. In Case of Sopage V Maneka^[9], I quote;
    • “A Petitioner would need to prove that a person is an agent of the Respondent to satisfy the requirement in S.66 (1) of the old Act” Now S.126 (1) (a) (b) (iii) of the new Electoral Act 2018.

Ground 4: Koa Hill incident:

33. The fact of the ground is that on 3^rd April (polling day) about 10am, at Koa Hill, at the market stall, Mr Evans Nolisia, an agent and supporter of the first Respondent gave $100.00 to Wilson Hou in fulfillment of his earlier promise. The money was part of $200.00 earlier shown by Mr Nolisia to Mr Hou in the morning prior to casting of ballots at Koa Hill Polling Station. At that time Mr Nolisia promised Mr Hou if he were to vote his candidate (First Respondent) he will give him part of the money.
34. A significant question to pause, is Mr Nolisia a true agent of the first Respondent in 2019 general elections? Had the first Respondent authorized or mandated and gave instruction and assistant to Mr Nolisia to hand out money to eligible voters in the national general election? Noted, he may not be authorized to do so, provided the first Respondent had knowledge and did nothing, meaning he condone to such actions.
35. The evidence in support of this allegation, in particular as an agent of the first Respondent is from Mr. Wilson Hou. He said Mr Nolisia was a supporter and agent of the first Respondent. And was one of the first Respondent campaign team at Koa Hill.
36. The witness also confirms that he and Tome Ramo witnessed the transaction when Mr. Nolisia gave the $100.00 note to Mr Robert Hou whilst standing at Mr Nolisia’s market stall at Koa Hill playing ground. Mr. Robert Hou confirms he received the $100.00 note from Mr. Nolisia. Later Mr. Nolisia told Mr. Wilson Hou to buy some kwaso alcohol and all drank it.
37. The first Respondent generally denies giving any money to Mr Nolisia at Honiara City Council Parking ground. The fault attributed to that is the non-filing of any sworn statement by the first Respondent in that effect. However he relies on the evidence by Mr. Tome Ramo who denies was not in Honiara on 3^rd April 2019, more specifically at Koa Hill to witness the $100.00 being transacted. He stated he was in Malaita that time.
38. Pastor Indu in his evidence states that Mr Nolisia was one of the witnesses who gave sworn statement on behalf of the first Respondent on 20^th July 2019 that was before he gave sworn statement on 19^th August 2019 on behalf of the Petitioner.
39. In the Statutory Declaration signed on 12^th September 2018, Mr. Nolisia stated by revoking the facts he gave in favor of the Petitioner was not true. On the outset it is pertinent to allude to the Statutory Declaration which in my view does not assist the Respondents ‘case, on the ground that the purported statement given by Mr. Nolisia on 20^th July 2019 is not produced in court, or even part of the documents relied on by the first Respondent. Therefore as crystal as it can, the first statement given by Mr. Nolisia was the one recorded by the Petitioner’s Counsel which was first in time before the date of Statutory Declaration as shown above.

Analysis of evidence:

40. The preparations and campaign for national Parliamentary seat is a serious business. It is not an event whereby which prospective candidates approached leniently but aggressively and strategically. There was time for planning, execution of vision statements, strategy and how campaign should be managed to achieve the accepted outcome.
41. That being the foundation of a campaign, then right and proper personals is to be mobilized to carry out the strategic campaign plan. At this stage agents, campaign manager’s supporters, committees etc were identified to carry out the task. In respect to those tasks people with reputable standing, influence within the community who were well respected were chosen. Some may have acquired higher education back ground, if not more appropriate.
42. Evidence has revealed Mr. Nolisia’s profile carries a contrast that he is not educated, not even compared to an ordinary level of education in Solomon Islands. He owns a public stall selling bettle-nut and smokes, he drinks kwaso. He lives at JBM and not at Koa Hill at the time of incident or voting.
43. Is that the kind of personal quality that the first Respondent would prefer to work as his agent? Has Mr Nolisia possess personal qualities and education background to lead a campaign team or himself treated as campaign manager or strong supporter. An ordinary supporter who does nothing, not mandated or authorized to work for a Candidate is merely an ordinary voter and not an agent.
44. Mobilization of supporters or strong supporters who were mandated to work for the candidate as agents or campaign managers, are people who are willing to work together coordinated by the candidate, to carry out specific strategy in order to win an election.
45. On the contrary, it cannot work for Mr. Nolisia that although he did what he did on his own accord seemed to attract no response from the first Respondent. There is no evidence coming from the Respondent that he concedes to the action by Mr Nolisia.
46. If there can be any truth in handing over of $200.00 to Mr. Nolisia at City Counsel Parking area by the Respondent, is that the only amount Mr Nolisia received and used to bribe one voter to win an election in a constituency right in the heart of the capital city of Honiara? There is no evidence coming from Mr. Nolisia of how many voters did he bribe, how much money was he given. In any election, logically you cannot bribe just one man to win an election. The game is tricky and often done in secret and only heaven knows. If Mr Nolisia is someone who plays evilism or corruption then he should be charged for what he did.
47. In summing Mr. Nolisia is not a fit and proper person for the first Respondent whose education background is higher than ordinary Solomon Islander, to engage as an agent, instructed to carry out campaign strategy.
48. It would still be improper to think that he was the right person capable to get to others with the same level of understanding. It would be a misstatement so to speak. The finality reflects how on earth he got just $100.00 to bribe one vote in order to win an election, is absolutely a bluff. His evidence is further weakening when Mr. Ramo denied he was not in Honiara but in Malaita to cast his vote. That piece of evidence is not rebutted despite the first Respondent failed to file a sworn statement.
49. Mr. Nolisia is not quite truthful either about the role he played as an agent. He did not explain he was chosen as an agent. He did not mention any meeting the first Respondent conducted and invited the agents to attend. He did not mention any instruction received and how much money each agent received to buy votes. The gift of $200 at the Honiara City Council car park area was an isolated incident. The amount was too small if it was intended to bribe voters in Central Honiara Constituency. The Constituency is quite large in terms of size, inhabitation by people from various islands and provinces. In fact Honiara constituencies are the focal pinch mark of the entire nation. I am not satisfied that one $100.00 note is sufficient money to lure someone to vote, or divert a voter’s preferential. Such an amount is almost of no value in this generation, time and age. In fact the whole entire evidence in support of this ground is surrounded with doubt, imposter, and irresponsible and lacks any merit.
50. I find Mr. Nolisia is not an agent of the first Respondent base on the above reasons. His action by giving of the $100.00 to Robert Hou was an independent act of his own accord. Therefore his action falls within the second limb of S.66 (2) of the repeal Act. Bribing of a single vote is insufficient to set off the majority vote and to tilt the result. Hence cannot be taken as reasonably supposed to have affect the result of the election.
51. I therefore, find there is no evidence to satisfy me on the balance to tilt the result of the election. I must dismiss this ground forthwith.

Grounds 5:

52. The facts of this ground are that on Sunday 31^st March 2015, at Kukum Campus leaf hut, Pastor Patrick Moli, one of the first Respondent’s strong supporter and key agent, gave $200.00 each to 10 students of SINU, with intention to influence them to vote for the first Respondent. The students names are; Junior James Philimon, John Maetee, William Siru, Tony Siru, Ellen Iro, Clera Mani, Junior Santor, Summy Basi, Alving Kologa and Melkao Wane.
53. Out of the ten students only one gave evidence in support of this ground. Four of the students could not be proved by evidence hence their names were withdrawn. The five that were left could not able to swear a statement. The reason for not doing emanated later that because they were sponsored by the first Respondent.
54. The first issue is whether Pastor Moli was an agent of the first Respondent. To ascertain whether Pastor Moli was an agent, facts which must be embraced are his status in the community, his engagement (work), his participatory or role played in the national general elections on 3^rd April 2019.
55. The exposition of Pastor Moli is that he was a Pastor of his fellowship group which normally worshiped at Kongulae gathering house. The first Respondent was a member of the group that normally worships at Kongulae worshipping place.
56. The second aspect unchallenged is in respect of the reality that he was one of the nominators who nominated the first respondent. He admitted he was a strong supporter of the first Respondent and that can account for since 2014 elections.
57. As Pastor he is a religious figure heard in the Church. Not just that but he is well respected and looked upon as a spiritual leader in the community. He is an influential person, and in a position very easy to convince voters. He is a person with integrity and dignity.
58. He denies receiving assistance from the First Respondent, even since 2014. That denial was rebutted and weakens to a lower state by his wife’s evidence. She stated in Court that she and husband had been receiving assistance from the first Respondent since 2014.
59. With those facts alone, undoubtedly has created a visible link between Pastor Moli and the first Respondent. That link could be inferred as much as possible, where frequent meets, consultation, sharing of ideas can be exchanged. More positively, were instructions related to elections. The fact that Pastor Moli was one of the nominators and a strong supporter, though he may not be a leader campaigning in public forum, but a strong supporter and nominator can be inferred that unforeseen role can be taken up by the Pastor. I have no doubt significant implications have laid down facts possible to label the Pastor as a role player or agent of the first Respondent in the 3^rd April 2019 general elections.
60. Evidence in support of the ground was alluded by a single witness James Philimon Junior. The evidence was purposely intended to proof two incidents alleged to have been master-minded by Pastor Moli. The first incident was when Pastor Moli met six students at SINU Kukum Campus on 31^st March 2019, at about 12:45 in the afternoon. At the end of the meeting Pastor Moli gave $200.00 each to the six students. The witness affirms Pastor Moli is not new to him as he was his neighbor at Koa Hill.
61. Witness for the first Respondent is Pastor Moli and his wife. Pastor Moli denied going to Kukum Campus that day. It was a Sunday and after morning service they would continue to discuss telling stories in their church until 3pm or 4pm. Therefore it could not be possible to be present at Kukum Campus at 12:45pm unless one is Omni-present.
62. In formulation and assessment of evidence in regards to this ground the wife of the Pastor’s evidence is more of truthful nature. Whilst Pastor Moli denies the first Respondent did not assist them in whatever, the wife affirmed to the Court that the first Respondent did assist them with some benefits since after 2014 elections.
63. The question to pause is has Pastor Moli being truthful in denying that he was never ever present at Kukum Campus at 12.45pm on 31^st March 2019, in the afternoon. Was he being truthful, that being not there would indicate he never met any student or even Mr Philemon, or gave any money to anyone at all?
64. It is not a legal vestment or delegation upon the first Respondent to proof. In the Case of Bae V Ramofafia^[10] the Court clearly stated that; “by legal implication the Respondent does not need to exonerate himself, the burden of proof rests on the Petitioner.”
65. In the current case I do not intend to persuade the first Respondent witness to proof but rebut whether it is true. This line of approach is assumed to in order to vest the burden upon the Petitioner to proof Pastor Moli was not being truthful.
66. This is a crucial situation where one witness is relied upon to proof the allegation. At the same time consideration should be had as to who carries the burden of proof and allow no room for beating around.
67. The location of the meeting place for sure was at Kukum Campus leaf hut. And time as fixed by 12.45 was in a broad day light. The question is has there anybody else, or other students around to witness by evidence that there was a meeting between Pastor Moli and the six students. In other words at least identify that someone who was not a student or staff had conducted a meeting with the six students. There was no evidence in support that would corroborate the evidence of Mr. Philimon.
68. On the contrary, however, Pastor Moli stated that on 2^nd April 2019 he was at his home at Koa Hill with his family for the whole of the day. His wife in her evidence supports and affirms Pr. Moli evidence. On this issue there is no evidence adduce by the first Respondent to disproof and or rebut, hence must stand to test the time and it did without being weakened.
69. Reasonably the other five students had taken proper and reasonable step not to file a sworn statement because they were sponsored by the first Respondent to attend Kukum Campus institution.
70. In parallel there is no evidence from other five students to affirm that Pastor Moli had given them $200.00 each. None of them moved forward to assist Mr. Philimon by giving a sworn statement to that effect.
71. It is therefore a question between corruption and sponsorship. As students they could rather pursue education as of paramount importance. And let corruption, a criminal activity be dealt with by law. That is logic in a way.
72. In any event, the five students and another more, including a staff member could have corroborated the evidence of Mr. Philimon. In the absence of such my perception, which I accepted to be so, that Petitioner has failed to proof the allegation in ground 5. I am adamant the assessment process is carefully made, and the only conclusion available is that I cannot entirely satisfy that the allegation of corrupt practice (bribery) is made out. Therefore I must dismiss the allegation in this ground forthwith.

Ground 3: Alleged bribery at Green Valley.

73. The allegation in this ground implicated the first Respondent as a candidate contesting the Central Honiara Constituency had committed bribery. It was alleged on Tuesday 2^nd April 2019, around 6:30pm, at Green Valley junction, the first Respondent gave $500.00 each to Mr. Kennedy Aukoro and Mr. Barry Timmy with intention to influence them to vote for him. Accompanying the transaction of gift the first Respondent or supporters uttered words to the effect implicating Mr Kennedy and Mr Barry to vote for the first Respondent.
74. The first Respondent denied been to Green Valley junction at that moment on that date, and denied giving any money to anyone. But rely on the defense of alibi which he claims he was at his home when the incident at Green Valley junction alleged to have occurred.
75. The defense of alibi is one of the common law icon productions and is often raised in criminal proceedings. Common law and equity are practices and usages of the English people which were adopted in this country pursuant to Schedule 3(2) of the National Constitution. Electoral Act 2018 deals with election petitions which mostly criminal in nature. The allegations often alleged to have been committed by the winning candidate or his agents, campaign managers or supporters (ordinary people), before, during or after the elections.
76. The SI National Constitution, the Electoral Act 2018, the old Act and the Electoral Regulation 2019 are authorities which provide guiding principles as to how to conduct election petitions. Though acute may be, they provide allegations of criminal activities committed during elections be conducted in a civil manner. Obviously, that is reflected in the standard of proof which is different from the civil proof.
77. The manner in which the allegations were entrenched in law is of criminal nature and there is no harm proving each element of the offence. In fact that would be the correct approach. At the end of the day the Court should decide whether an offence is committed or not.
78. Conclusively, it is not unusual for the first Respondent to rely on the defense of alibi. Notably bribery under corruptible act is a criminal offence which penalty is attached to by the Electoral Act 2018.
79. What has been accustomed to defense of alibi at common law, is that there is a procedure lay down which led to the giving of notice of alibi. I am guided here by the authority of Blackstones Criminal Practice, published by Blackstone Press limited 1991, in particular pages 1225-1230.
80. This notice is very significant in an adversarial system of Court, to avoid one side being abused by evidence from the other side. The notice will provide information to the opposing side that a defense of alibi will be raised. Within the notice, alibi witnesses and addresses have to be named and supplied. This will provide privilege to the other side to foster evidence to rebut the defense of alibi. This may be new in the jurisdiction. However, any principle of law adopted from common law, is naturally adopted by other common law countries which originally embraced the common law of England. A party relying on the principle of alibi must ensure he knows the background of the principle. And comply with any pre-requisite requirements as explicitly stated.
81. In England the Criminal Justice Act 1967 provided for this defense and the process that has to be applied in relying on the defense of alibi.
82. I noted the first Respondent has failed to comply with the procedures in giving notice before relying on the defense of alibi. In any event I take cognizance of paragraph D13.7 on page 1227 of the book, which vests on Court the discretionary power whether to accept or reject alibi evidence if notice is not given. By exercising that discretion I must reject the defense of alibi raised in this petition.

Analysis of evidence.

83. I have started with the defense of alibi, I will continue though rejected for none compliance with the required processes. However it is pertinent to account for the evidence that supports. The major evidence in support of the defense is from Bobby, who came from Auki for some reasons and became the driver for the first Respondent during election week.
84. Mr Bobby’s evidence is that as a driver of the vehicle owned by the first Respondent was never packed at Green Valley junction on that date and at 6:30pm. In fact he and the first Respondent and his family were in the first Respondent’s home the whole day, praying and having fellowship before the Election Day, next day.
85. The statement deposed by Mr. Bobby and his oral testimony are facts entail support of the alibi. His denial that the first Respondent had no other driver is a misconception of fact. If he can drive for the election week and then left for Auki, the first Defendant, who can’t drive, became immobilized and could not move. The true fact is that the first Defendant had more than one driver. If he was a former Minister he was in an acting position and a government employed driver should be available. That supports the contention that he had several drivers. If Mr. Bobby was not with the first Respondent at Green Valley on that date and time of allegation, then another driver could have been present behind the wheels
86. Even if I accept the defense of alibi the problem the first Defendant encounter is that, he was never called as a witness neither any sworn statement deposed by him being tendered to Court by consent. In fact it would be better if he was called or sworn statement tendered, so that the evidence of Mr Bobby is able to corroborate his evidence to support the defense of alibi. Without any evidence adduced by the firs Respondent who relies on the defense of alibi, makes his defense weak.
87. The law on corroboration requires evidence must corroborate the appropriate evidence to support. The appropriate evidence here should come from the first Respondent then Mr. Bobby’s evidence to support. There was nothing in the current case. As it may, the first Respondent is relying on Mr Bobby to proof his righteousness and provide salvation which is beyond valid reasoning. However, the sting point is he has to speak for himself who raises the defense and Bobby’ evidence is to support. There was nothing forthcoming here.
88. The evidence in respect to color and brand of the vehicle as described by witness Aukoro was denied. The rationale for doing so, premises on the defense of alibi. And that the right vehicle was not at the spot. That tells the story that the first Respondent was not at the scene of allegation on the date and time, hence supports the defense of alibi which I find weak and not supported.
89. On the other hand the evidence of Mr. Kennedy Aukoro affirms that on 2^nd April 2019, about 6:30pm he was on his way home from work. He was accompanied by the second witness Mr Barry Timmy. He was engaged in casual work at Green valley in building construction.
90. At Green Valley junction they met a group of people and a vehicle parking. Out of curiosity they approached the group. The witness Mr Aukoro then saw the first Respondent in his silver pajero vehicle parked next to the group. Being so close he could see the first Respondent calling someone over to his vehicle. One of the persons there announced that any person voting at Central Honiara Constituency should join the group.
91. Being registered as voter of Central Honiara Constituency he joined the group. Subsequently he was given $500.00 by the first Respondent, who was sitting in the front passenger seat with tinted window wind down. At that moment someone repeatedly announced that whoever received money must vote the first Respondent on Election Day. The witness confirms he knew the first Respondent well since 2010. In that year he and his wife were working for the first Respondent. He also attended Church at Green Valley with the first Respondents. So he knows the first Respondent well and could identify on the date of allegation without problem.
92. Mrs Ellen Ba ’au was called as a witness for the first Respondent. Her evidence was basically to rebut her husband Mr Aukoro’s employment with Mr Meke and who was engaged in building construction at Green Valley. She was persistently re-examined to affirm that her husband was not working. Unfortunately, she insisted he was working and that part of her evidence was not included in her sworn statement for reason to benefit the first Respondent’s case. Her evidence is intended to place Mr Aukoro away from the scene. In other words to support the contention that Mr Aukoro was not at the junction at all. However she admitted her husband was working hence render her evidence unmerited and that Mr Aukoro’s evidence remain steadfast.
93. On the issue of identification of the first Respondent, witness Aukoro has no problem because he had been to the first Respondents house in 2010 and also attended the same Church services as the first Respondent. Mr Barry also affirms knowing the first Respondent. In this evidence he stated at times he would accompany Mr Aukoro going to the first Respondents house at Tasahe. He was present at the scene and also received $500.00 from the first Respondent. Witness Soke affirms that whilst approaching the road he could hear a person in the cabin of the vehicle uttered words to the effect to vote for first Respondent.
94. In Solomon Islands 6:30 pm is still day light. At close arms reach, the first Respondent gave the money to Mr Aukoro. He was very close to the first Respondent when he received the money. The screen window of the front passenger seat to the vehicle was wind down clearly showed the First Respondent was visible enough to be identified by the witness.
95. As to the element of giving, the evidence which supports is overwhelming. Witnesses Mr. Aukoro and Mr. Barry affirm that was done by the first Respondent himself and which they received from the hand of the first Respondent. Witness Mr. Soke corroborates seeing the $500.00 each of the recipients showed him. That completes two elements.
96. The only evidence which may negate Mr Aukoro evidence to some degree was the Statutory Declaration he endorsed. But one wonders why swore a Statutory Declaration, under such circumstances knowing it would incriminate himself and his evidence. Mr Aukoro attested that the Statutory Declaration was not prepared by the Petitioners lawyers but by people unknown to him. He was forced, harassed and under duress to sign.
97. I noted in the evidence of Mr. Jason Indu filed on 7^th October 2019 that Mr. Aukoro was among three witnesses who gave statements in support of the first Respondent’s case on 30^th July 2019.
98. Unfortunately the purported sworn statement by Mr. Aukoro on 30^th July 2019 was never shown to the Court or even tendered. Relevantly, it was never being part of this case. Hence it would only be proper to conclude that the first sworn statement by Mr Aukoro was the one prepared by the Petitioner’s lawyer, and was signed.
99. Apparently the sole purpose of preparing and harassing Mr Aukoro to sign the Statutory Declaration was because he was revealing and telling the truth in his sworn statement. Such was intended to impinge the strength of his evidence to zero and at the same time supports the first Respondent’s case. The intervening scenario is a creation of what modern age describe as corruption at its best. For obvious reasons that is very visible and concise to perceive.
100. Whoever strategies and architecture the occurrence were persons who prefer corruption to continue thrive in this country for the benefit of some greedy people. This kind of approach is extra ordinary and abusive to the rule of law. Whoever manipulated it must be investigated.
101. The evidence of vehicle color and maker or brand does not change the fact that Mr Aukoro’s sworn statement was filed somewhat 5½ months after the incident. Similarly, as such, in particular brand names would often slip of memory; that is not uncommon, even at that span of time or proximity. However, memory of a person known for one year cannot slip off mind too easily, even at some years of interval. The moment the buddy’s meet again reminiscent the past flash back and identification memory cannot change.
102. Technically, the nature of such evidence can be perceived as supporting the defense of alibi which I have concluded as conceptually weak. To change the scenario around there must be evidence available to accelerate the lower status of the strength of that defense.
103. Another significant piece of statement is the essence of Mr. Barry’s evidence as a recipient of the $500.00. Notably it appears hazy and quite controversy if approached in an immature manner. In his own sworn statement he did not mention he had received any money at all. When giving oral evidence he affirms receiving $500.00 from the first Defendant. However his inconsistency is explained and I’ll refer to here below.
104. Meantime if ever Mr. Barry was given $500.00, which Mr. Aukoro affirms and Mr Soke confirms in their oral evidence when both men showed the $500.00 they have received.
105. Amidst the facts, Mr. Barry relates his reason for not mentioning the money given to him. That he feared being harassed by the first Respondents agents as they did to Mr. Aukoro.
106. Upon investigating Mr. Barry’s assertion, I noted Mr. Aukoro’s sworn stamen was filed on 19^th August 2019, whilst Mr. Barry’s sworn statement was filed on 23rd September 2019. A month interval is sufficient time for Mr Barry to learn of any mishap that could have confronted Mr Aukoro. Hence it is only reasonable for him to intentionally by pass an important element of bribery that is giving of the $500.00, to avoid a similar act of harassment.
107. $500.00 gift is an important element to proof in a bribery allegation. An attempt to distort evidence to disproof was an intention to corruptly destroy the evidence of the Petitioner. That action need to be investigated where possible be deterred.
108. I noted the Statutory Declaration was dated 13^th September 2019. A document Mr. Aukoro detested he was forced and harassed to sign. It was filed 7 days before Mr. Barry’s sworn statement was filed on 23^rd September 2019. Naturally the ordeal Mr. Aukoro had gone through could have been well versed by Mr. Barry before he filed his sworn statement on 23rd^th September 2019. The fear of being treated alike was a good reason for Mr. Barry missing out on important element of bribery that is receiving of the $500.00. Thus negatively impacted his freedom of giving a sworn statement in a manner and knowledge he ought to impart. I would rather accept his evidence as truthful.
109. .The evidence supporting the motive of giving is never negative or rebutted. The statements of the three witnesses heard someone uttered words implicating to vote for the first Respondent. Witness Mr. Soke even heard the first Respondent uttered words to remember him on the Election Day. The strength of that evidence could have been weakening if the alibi is proved and accepted. However the defense of alibi was technically flawed for want complying with procedures. Even if accepted the evidence tendered in support of the alibi is weak and cannot be accepted.

Inconsistencies of evidence:

110. I noted there are inconsistencies in part of the evidence supporting the petition. Mr. Aukoro was inconsistence when in his sworn statement he mentioned Timmy was only a companion and did not receive any funds from the first Respondent. In Court he affirms Barry Timmy also receive funds.
111. That statement cannot be read in isolation. Literally it is not inconsistence when read in conjunction with Mr. Barry’s sworn statement who explained why he did not mention in his own sworn statement that he received the funds.
112. It ought to be noted that both witnesses recorded their sworn statements more than one month apart. Mr. Aukoro was first in time. By then Mr. Barry would have known that agents were at work to distort Mr. Aukoro’s evidence. It was the Statutory Declaration administered by the agents of the first Respondent that impacted the change of evidence in Court by Mr. Barry who had given his reasons for the change. Mr Aukoro has to adjust to corroborate with Mr Barry’s evidence.
113. In my opinion, the Statutory Declaration which derived from some evil motives had impacted causing inconsistencies so that the first Respondent could benefit out of it.
114. Amazingly, the evidence available affirming Mr Aukoro received the funds is not rebutted. Even if I would accept the inconsistencies, will never change, there was a corrupt act done and Mr. Aukoro who was harassed to sign the Statutory Declaration.
115. The question whether there was one person or two shouting out of or telling people that those who received funds must remember the first Respondent, is a clear manifestation for the motive for giving out the funds. Whether that message conveyed out from those standing around the vehicle or from the first Respondent concludes the motive of giving.
116. At this juncture it is worth pointing out that there is conflicting evidence between Mr Aukoro and Mr. Soke. It is true Mr Aukoro did not hear any words uttered by the first Respondent. As he and Mr Barry moved out from the group they met Mr Soke some five meters away. Mr Soke in evidence heard the first Respondent uttered some words, “you save number 3 tomorrow?” I don’t think there is any conflicting statement here. Those words were said after Mr. Aukoro and Mr. Barry had moved out of the scene somewhat 5 meters away. The significant fact is, any statement made by the boys standing close to the vehicle, or by the first Respondent himself, was a manifestation that the monies given was intended to lure the recipients to vote for the first Respondent. In deed the conflicting statement the Respondent relies on is so minute to discredit any of the witness statements. However, affirms the gifts that were made were accompanied by message in words uttered to vote for the first Respondent; the message is so clear and concise.
117. The inconsistencies regarding the evidence of Mr. Barry and Mr. Soke that both did not know each other, yet Mr. Soke stated in his sworn statement he recognized Mr Aukoro among the crowd around the vehicle.
118. If those statements are inconsistence with one another, then someone with that conclusion has in fact misconceived the English meaning. Where two persons don’t know each other, literally it would mean both don’t know each by name inclusive of familiarity. But both can recognize each other if both are living in the same superb or vicinity of the same area.
119. However there is evidence that both men are living at Kobevatu. Of course there is nothing sinister about knowing each other. But if both can have privileges of seeing each other, then Mr Soke would be quite right that he recognized Mr Barry among those standing near the vehicle. In my opinion there is no inconsistency at all. It is a matter of understanding English and knows the basic meaning.
120. There is argument that the law providing single incident of corrupt act once proof can invalidate an election result. That pause risk for a small group of men to concoct evidence to proof one incident. In this case three witnesses who gave evidence for the Petitioner are all uneducated persons. I do not think they have the caliber to strategize and implemented such evilness, unless someone invented for them of which evidence had not suggested otherwise.
121. They had given their statements at different intervals, resulting in minor discrepancies and inconsistencies which I found in the earlier paragraphs. But they are not so severe to discredit their entire evidence.
122. In respect to Mr. Bobby sworn statement which the first Respondent relies on, that I have been alluded to in paragraph 81-83 above. I cannot accept his contention.

Conclusion:

123. I have dismissed grounds (4) and (5) of the petition for lack of evidence to proof on the standard required by law.
124. In respect of ground (3) the best evidence was given by Mr Aukoro. The evidence of Mr Barry and Mr Soke provides corroboration, one way or the other. However, I noted there are inconsistencies in their evidence. After assessing and valuing them, exerted no risk as to regard the major portion of evidence which required proofing of the two major elements. It did not also provide any threat to discredit their entire statements.
125. It is the content of Mr Aukoro’s evidence that threatens the first Respondents defence. Therefore it is quite logic yet unlawful, to employ agent to attempt to discredit and dilute the strength of Mr Aukoro’s evidence.
126. The success in imposing force and harassment upon the witness, before yielding to endorse the Statutory Declaration, is the manifestation of the presence of corruption which takes precedence in all works of lives in this nation.
127. The germination and thriving of corrupt act protrudes into this country not from across the ocean, but from within. Unless Solomon Islanders are content with what they have, rather than pursuing illusiveness and dream of flying beyond the skies, this nation will not prosper and at peace, but doomed.
128. All in all the evidence adduce by three witnesses in support of the allegation in ground (3) are clear and unequivocal which enable this Court to be entirely satisfied. The allegation of corrupt practice is bribery has been made out and proof to the standard. That is simply to say that all the elements which ought to be proved in ground (3) has been proved to the satisfaction of this Court.

Orders:

1. That the election of the first Respondent, as Member of Parliament for Central Honiara, was not done in a free and fair manner.
2. Consequently, order is hereby made that the first Respondent was not duly elected or returned, and that his election was null and void.
3. In consequence, the first Respondent is hereby disqualified to Contest in any bye election should that election was conducted before the date of the next National General Election.
4. That costs of this proceeding is payable to the Petitioner by the first Respondent on standard basis.
5. The Governor General, as the Head of State, be informed of the result of this judgment.

The Court.
Justice R Faukona
Puisne Judge

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^[1] Civil Case No. 279 of 2019 (2 September 2019) (Unreported)
^[2] [2011] SBHC; HCSI. CC 343 of 2010.
^[3] HC-CC 218 of 2010
^[4][1985] SBHC (1985 – 1988) SI LR 31 (4 April 1985)
^[5] [1997] PNGLR 302.
^[6] Civil Case NO. 282 of 2019.
^[7] [1874] 2 O’MH 100
^[8] [2012] SBHC 106: HC CC 348 of 2010.
^[9] [2016] SBHC 132; HC CC 435 0f 2014
^[10] [2019] SBHC 89 – CC No. 298 of 2019 (8 December 2019)