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Qora v Kologeto [2020] SBHC 8; HCSI-CC 293 of 2019 (26 February 2020)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Qora v Kologeto


Citation:


Date of decision:
26 February 2020


Parties:
Alex Lionel Qora v Fredrick Kologeto


Date of hearing:
11/12/2019-15/12/2019 (Trial) ; 13/12/2019 closing Submission


Court file number(s):
293 of 2019


Jurisdiction:
Civil


Place of delivery:



Judge(s):
Keniapisia PJ


On appeal from:


Order:
The Petition is dismissed with costs on standard basis to be taxed, if not agreed. I will assess cost


Representation:
Mr. P Afeau for the Petitioner
Mr. L Kwaiga and G Muaki for the Respondent


Catchwords:



Words and phrases:


Legislation cited:
Electoral Act 2018, s126, (5) (c),National Parliament Electoral Provision Act [cap 87], s66(1) and s 66(2) Repealed Act, Evidence Act 2018, s 70 (1), Halsbury’s Law of England, 4th Edition Reissue, Volume 31(1), Electoral Act 2018,s111Electoral Act Petition Rules 2019, R35(1)


Cases cited:
Fono v Fiulaua [2011] SBHC 6, Temahua v Vangara , Bae v Ramofafia [2019] SBHC 89, Sope v Principal Election Officer [2009] VUSC 62, Vui v Ah Chong [2006] WSSC 52

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case No. 293 of 2019


BETWEEN:


ALEX LIONEL QORA
Petitioner


AND:


FREDERICK KOLOGETO
Respondent


Date of Hearing: 11/12/2019-15/12/2019 (Trial); 13/12/2019 (Closing Submission)
Date of Judgment: 26 February 2020


Mr. P Afeau for the Petitioner
Mr. L Kwaiga and G Muaki for the Respondent

JUDGMENT IN AN ELECTION PETITION

Introduction

  1. Solomon Islands went to the polls in a General Election (GE) on 3rd April 2019. For South Vella La Vella Constituency (“SVVC”), Mr. Alex Lionel Qora and Mr. Frederick Kologeto were the only two contesting candidates. Mr. Frederick Kologeto was returned duly elected Member of Parliament (“MP”) for SVVC. Mr. Frederick Kologeto won the election, by a total casted votes of 2,932 ahead of Mr. Alex Lionel Qora, polling 2,351 votes.
  2. Mr. Alex Lionel Qora filed this petition on 20/05/2019. Court allowed an amended petition to be filed on 3/07/2019. Petitioner Mr. Qora, alleged Respondent, Mr. Kologeto, by himself or his agents before, during and after the GE, guilty of corrupt practices of bribery, contrary to Section 126 of the Electoral Act 2018 (No. 6 2018) and Sections 66 and 71, of the National Parliament Electoral Provisions Act (Cap 87) – The Repealed Act. Court allowed amendments to plead bribery practices, under the Repealed Act, as the alleged bribery practices, took place, when the Repealed Act was still in force, prior to 25th September 2018. The Electoral Act 2018 (No. 6 of 2018), under which the 3rd April 2019 GE were conducted, came into force on or around 25th September 2018.
  3. Petitioner initially alleged 17 incidences of bribery practices pleaded in paragraphs 4 (1) – 4 (17), of the amended petition. At Pre-Trial-Conference on 22/10/2019, Counsel Afeau announced dropping some allegations, for which his client produced no evidence. Mr. Afeau will
  4. By Notice filed 24/10/2019, Mr. Afeau advised that his client will not pursue allegations in paragraphs: 4 (7), 4 (10), 4 (11) and 4 (15) of the amended petition. Kolokolo village bribery allegations, against persons named in paragraph 4 (4) (a) as (I) Laela Kakamule - $300.00; (II) Denty Tovaqeto - $50.00; (III) Rulerston Dick - $50.00; (IV) Jonah Kasepitu - $100.00; (V) Helena Keloqula - $50.00; (VI) Maryvido Chillion ($50.00); (VII) Meblyn Uma - $50.00; (VIII) Juleriko Viqobule - $50.00; (X) Levan Tela - $150.00 and (XI) Leonard Belsazor - $100.00 were also dropped. Remaining allegations to reach trial are against: (IX) Stanley Kabokera - $500.00; (XII) Polin Doravuru - $50.00; (XIII) James Mima - $150.00; (XIV) Mark Lelopala - $100.00; (XV) Relvie Besipiqe - $50.00 and (XVI) Kolokolo community fundraising drive support - $4,000.00.
  5. Furthermore, Niarovai bribery allegations against persons named in paragraph 4 (5) (a) as (III) Quladonga - $500.00; (VI) Daqe - $200.00; (VII) Merenaiti - $200.00; (VIII) Masaqula - $200.00; (XII) Osah - $100.00; (XIII) Nelma - $100.00; (XIV) Paqo - $100.00; (XVI) Mairi - $100.00; (XVII) Serah - $500.00; (XVIII) Qurapitu - $500.00; (XX) Vizuvaka - $200.00; (XXI) Iurila - $100.00; (XXII) Divo - $50.00; (XXIV) Nipala - $50.00; (XXV) Manolo - $50.00; (XXVI) Miurily - $50.00; (XXVII) John Roy - $500.00; (XXVIII) Kiopitu - $100.00; (XXX) Kologeto - $100.00; (XXXII) Mabely - $50.00; (XXXIII) Zeralyn - $200.00; (XXXIV) Matevaka - $50.00; (XXXV) Jimson - $50.00; (XXXVI) Bulekolapa - $50.00; (XXXVII) Sasakana - $100.00; (XXXVIII) Henry - $100.00; (XXXIX) Liliqula - $200.00; (XL) Myra - $100.00; (XLI) Emmy - $100.00; (XLIII) Jevilyn - $100.00; (XLV) Teroata - $100.00; (XLVI) Namuqula - $50.00; (XLVIII) Mumavido - $100.00; (XLIX) John Qei - $50.00; (I) Lepe - $100.00; (LI) Janet - $50.00; (LIII) Binoto - $50.00; (LIV) Tolavuru - $100.00; (LV) Maria - $100.00; (LVI) Niarovai congregation fund raising support - $1,000.00; (LVII) Fresh Bonito, 2 fishing boats - $400.00 and (LVIII) Market Betel Nut & Leaf - $100.00 were dropped. Remaining allegations in 4 (5) (a) to reach trial are against: (I) Duddley - $500.00; (II) Conley - $500.00; (IV) Boku - $500.00; (V) Aruqula - $500.00; (IX) Soqolo - $50.00; (X) Anne - $100.00; (XI) Kadovido - $200.00; (XV) Kisina - $200.00; (XIX) Betirisia - $100.00; (XXIII) Vaevo - $50.00; (XXIX) Gram - $100.00 (XXXI) Luqu - $100.00 (XLII) Quresi - $100.00; (XLIV) Qabson - $50.00; (XLVII) Tamurade - $50.00 and (LII) Eveleni - $50.00. Following the dropping of allegations, petitioner’s list of witnesses to cross examine has been drastically reduced from 80 (initially) to now 35 witnesses.
  6. Petitioner dropped two further allegations, on second day of trial in Gizo. Allegations in paragraph 4 (8) - ($3,000.00 for church anniversary catering at Iriqila) and paragraph 4 (14) - (assistance towards dead person Moena) were dropped. At closing submissions, Mr. Afeau submitted in answer to Court’s question that allegation in paragraph 4 (16) is in fact a repeat of the same allegation in paragraph 4 (4) (a) (XVI) - $4,000.00, Respondent gave at Kolokolo community fundraising drive. Accordingly, I will ignore the allegation in paragraph 4 (16). With the drop and a repeat of allegation, only 11 bribery allegations reached trial and closing submissions.

Main relief sought

  1. Petitioner seek the ultimate relief that owing to the bribery practices alleged against the Respondent and or his agents, Respondent was and is incapacitated from serving in Parliament. And that the election and return of the Respondent were and are void. And that the Respondent was not duly elected or returned and his election void. Court should declare the election of Respondent invalid, should the bribery allegations be proven, to the Court’s satisfaction.

Standard of Proof – A High one – Court’s entire satisfaction

  1. It is trite law and Counsel agreed that the standard of proof in election petition is a high one. It is not mere balance of probability (civil standard). It is not beyond reasonable doubt (criminal standard). But it is still a high standard of proof and requires the Court to be entirely satisfied with the evidence produced to support the allegations made (Fono[1]). The standard of proof will require that clear and cogent proof of the allegations to the Court’s entire satisfaction is adduced... in evidence and not simply on the mere balance of probabilities[2].
  2. With a “high standard of proof” in my mind, I now turn to look at the incidences of bribery practices alleged, in the order presented in the amended petition – minus the dropped allegations. In Fono case and followed in subsequent cases, since 2011, a single incident of specific bribery (Section 66 (1) standalone from Section 66 (2)[3]) proved against the Respondent and or his agent is enough to invalidate his election to Parliament. Repealed Act still apply in this case, for the reason stated in paragraph 2.

4 (1) (a) and 4 (2) – Assistance to Supato Community – Patrick Painipitu requested $6,000.00 (for rest house) and Pastor John Wayne requested $10,000.00 (for community hall).

  1. First allegation says that in June 2018, Respondent visited Supato village. And convened a meeting at Ariri’s house. Many people attended the meeting, whereat, Respondent declared his intention to contest the 2019 GE. Respondent asked the people about the kind of assistance they wanted in exchange for supporting his candidature and voting for him at the 2019 GE. In response to the invitation, Patrick Painipitu, an attendee, asked the Respondent for cash assistance of any amount, to the Wesleyan Methodist Church. Responding to Patrick’s request, Respondent gave $6,000.00. Respondent denied the allegation and generally say the assistance he gave was in response to genuine requests for assistance, from Supato community, which belong to his close relatives (his cousin brother Ariri and Ariri’s brothers and sisters). And not election related to induce voters in a corrupt way.
  2. Patrick Painipitu gave evidence for the Petitioner in relation to the $6,000.00 request for assistance allegation. Patrick made a sworn statement (ss) and was cross – examined in court. Patrick’s whole bribery evidence was torn apart, when I asked him in court. I asked why, he requested $6,000 towards Supato community rest house. His answer was, he asked Respondent to give any amount of money assistance towards Supato rest house. His evidence was that the Respondent was visiting Supato at the material time in June 2018. And had actually seen the outstanding work on the rest house. And had estimated the cost to be around $6,000.00. So Respondent gave $6,000.00 towards Supato rest house to Mr. Patrick Painipitu, following his request.
  3. Mr. Painipitu confirmed in evidence, supported by the unchallenged admitted ss of one named Emelani, that Painipitu received the $6,000.00 from the Respondent via Hector Emelani, in Gizo. Mr. Painipitu distributed the $6,000.00 as follows: $1,000.00 to his own son (who was working on the rest house), $1,000.00 to the Treasurer’s son (also a worker on the rest house) and $2,000.00 to the Treasurer, Mr. Rolland Tilo. Rolland Tilo confirmed receipt of $2,000.00 in ss[4]. Patrick took $2,000.00 with him, to Honiara, when he visited his sick wife. Patrick used the $2,000.00. And is yet to refund the $2,000.00. Patrick also asked the Respondent for a separate $1,000.00. Patrick confirmed this, when I put to him based on Ariri’s ss (at paragraph 10 – page 118, Court Book 2). Patrick asked Respondent for $1,000.00 sea fare to visit his sick wife in Honiara, along with the $6,000.00 request he made at Supato, during Respondent’s visit there in June 2018. Mr. Ariri said Patrick asked because of his blood relationship to the Respondent, a fact Patrick denied in oral evidence in Court. Patrick did not disclose the $1,000.00 he asked of the Respondent in his own ss evidence, at first instance.
  4. I say Patrick’s evidence was torn apart, because in cross examination, he revealed the truth behind his real intention for asking. Patrick just wanted to take advantage of the Respondent in asking for $1,000.00 (sea fare) and $6,000.00 (Supato rest house). Patrick said he just asked because it is “election fever” and people are used to getting money from candidates. Patrick also said in oral evidence, it’s just “dead money”. So it came as no surprise that he was not careful to account to Supato community for the “rest house” money. This is evidenced in how he used the money. Half of the $6,000 benefited his own family - $1,000.00 to his son and $2,000 to himself – used up for the Honiara trip to visit his sick wife. Treasurer got $2,000.00. Treasurer’s son got $1,000.00. I am sure other people worked on the rest house too, not just their sons. Patrick should have given all the money to the Treasurer, if indeed, he was genuine in his request for community assistance. But because he saw the money as “dead money” given in an “election fever”, he cared little, to use the money for the purpose it was requested and given.
  5. And after all he was not influenced by the monies, because he admitted in evidence, he voted for the Petitioner, in answer to Counsel Kwaiga’s question. Patrick was an opportunist and dishonest person. For he used Supato rest house money (half of it - $3,000.00) to benefit him and his own family. On top of that, he asked the Respondent for a separate $1,000.00 towards his sea fare to visit his sick wife in Honiara, which he did not disclose initially. I am not satisfied the $6,000.00 Respondent gave to Mr. Painipitu was bribery money. I am not satisfied that Supato community rest house benefited from the $6,000.00. The person who benefited came to this Court. And his true colours were discovered upon questions from the Court (an opportunist – asking and taking money because its “dead money”, given in an “election fever period”). I do not believe the rest of Patrick’s evidence, where he tried to connect the assistance to bribery against Respondent. This allegation fails, as I am not entirely satisfied the giving amounted to bribery.
  6. Second request allegation, relates to $10,000.00. It is alleged that at the same meeting in Supato in June 2018 (Ariri’s house meeting), Pastor John Wayne of Supato United church requested $10,000.00 from Respondent. Respondent gave the money requested. And Pastor Wayne announced the assistance in a church meeting that Respondent will be contesting the 2019 GE. And that he wanted the Supato congregation to vote and support him. Respondent denied the allegation and generally say assistance he gave was in response to genuine requests for assistance, to Supato community, which belong to his close relatives (his cousin brother Ariri and Ariri’s brothers and sisters). And not election related to induce voters in a corrupt way. Already I rejected all of Patrick’s evidence, which tried to connect the Supato rest house assistance ($6,000.00) to election bribery. I will also reject Patrick’s evidence on this second $10,000.00 bribery allegation.
  7. And so the remaining witness for the Petitioner on the second Supato allegation is Vai Lomulo. Witness Vai Lomulo was not present at the meeting, which Patrick Painipitu and Pr. John Wayne, attended, at which both asked for assistance from Respondent. But later, Vai Lomulo attended a meeting, at which Pastor Wayne announced to the Supato congregation about the request he made and the $10,000.00, which Respondent gave. Witness Lomulo cannot therefore speak with veracity about anything that transpired at the Ariri house meeting.
  8. The evidence by Vai Lomulo was identical to all other witnesses who swear a ss for the Petitioner, where they tried to connect all assistance given by Respondent to politics and bribery. I will recite the relevant parts of Vai Lomulo’s ss here: “(3) (b) Some days after the meeting at the village, where Pastor Wayne asked for assistance and the Respondent pledged to assist, I attended a church service at the village, when Pastor Wayne announced to the church congregation that the Respondent declared, at that meeting, that he would stand up at the next election and he promised to give $10,000.00 to the community to help built our rest house so the Pastor told us to think of him at the election.”
  9. Now Pastor John Wayne for the Respondent denied making any election related comments to Supato community. And went on in oral evidence to talk about why and how he requested the Respondent to assist complete his congregation’s community hall in time before the churches’ centenary program due to fall on 29th January 2019. Pastor Wayne in answer to my question, on how, why and what made him asked for assistance has the following to say: “I was present when Respondent paid a visit to Supato village in June 2018. The completion of Supato community hall was a burden to me as Pastor. This is because, we will be having a church centenary program in January 2019. And we needed to complete, the community hall, in time for that program. I knew the Respondent as a cousin brother. I knew he just came back from New Zealand. So I felt I should just ask for assistance from him. I asked, if he could give some assistance with his tithe money. I felt compelled to ask knowing Respondent is my cousin brother and that the completion of the church community hall was heavy in my heart”.
  10. Pastor Wayne was the one who made the request. And so I should pay attention to what he got to say in evidence. When I weigh his evidence, I could see that, what the pastor did was the normal duty any pastor can always do. And that is concern and securing of resources (money) for church programs. Here, church centenary program and the necessary community hall preparation and completion. Petitioner tried to connect this request to Respondent’s election intention by producing evidence that Pastor Wayne announced that the Respondent had assisted. And for the people to support and think of the Respondent at the 2019 GE. Pastor Wayne admitted announcing the assistance at the community hall not in church and denied making any election related announcements, in favour of Respondent. Election inducement comments are doubted, due to lack of corroboration. But money was actually requested and given.
  11. But whether the request and giving amounted to bribery, I will cover under application of law.

4 (3) (a) and (b) – Assistance to Vonunu Church Building fundraising ($20,000.00 and Vonunu Soccer Club ($1,000.00).

  1. Petitioner alleged that on or about 24th June 2018, Respondent gave $20,000.00 to Vonunu (V) community. This event took place at V community, after Sunday main church service. Respondent announced he will contest the 2019 GE. Respondent wanted members of V community to support and vote for him. This allegation was not disputed in any substantive way. Respondent gave $20,000.00 towards the church building fundraising and construction - not disputed and pleads the defence in Section 126 (5) (c) of the Electoral Act 2018 (No. 6) 2018. Respondent says the money was given later, not on that Sunday 24th June 2018 as alleged. The $20,000.00 was money Respondent and his family raised in New Zealand (NZ). Evidence also said it was “tithe money”. For Christians, “tithe money” is one tenth of the money we earn is not ours. It is God’s money and should be given to God, before we touch it. Whether “fundraising” or “tithe” money or both, Respondent gave $20,000.00 towards V church building. Money is currently in the church building account, as confirmed in oral evidence at trial. The plan to build the new church building had started a long time ago. But due to shortage and miss-use of funds, work could not start. It is an ongoing project. Fundraising is also on going.
  2. It is alleged Respondent informed V community about the $20,000.00, on 24th June 2018. This is where the evidence run into conflict. Petitioner’s evidence through Mr. Pendence Wilson says that after church service on 24 June 2018, Respondent stood up in church and announced that he would be donating $20,000 towards V Church building. Mr. Pendence said this is not the usual way to make announcements in church. Usual way is to notify the Pastor, who would then introduce the person to the congregation. The person would then make his/her way to the front. And not for the person to just stand up and make the announcement, like what the Respondent did.
  3. Mr. Pendence evidence then continued that, after Respondent announced in church, his $20,000.00 contribution, Pendence left church service. Later that day (Sunday 24 June 2018), Pendence’s sister, at their house, told them, that Respondent announced outside the church, that he would be contesting the 2019 GE. This is mere “hearsay evidence”. And not admissible. For the sister was not called to confirm Mr. Pendence story.
  4. Then Mr. Pendence continued that this is the first time Respondent had assisted the V community. And that Mr. Pendence thought Respondent did this to gain support from the community towards Respondent’s candidacy in the 2019 GE.
  5. The two most senior persons from V community gave evidence for the Respondent. Pastor Adrian Korabule and Reverend Gary Tulo deny Respondent made any announcement in church about the $20,000.00 contribution, after church service on 24 June 2018. Both say that Respondent announced at the dining hall, his assistance, when members of the community were having lunch with the preacher for that Sunday. Both say the money was given later, not on that 24th Sunday. Both say Respondent had assisted V community before. Both say money was part of Respondent’s family’s funds raised in NZ, towards the church building project. The V community had raised funds for the church building in the past. And for Respondent and his family they have raised funds in NZ, towards the church building project.
  6. What I have to decide is whether the $20,000.00 Respondent gave towards V church building amounted to bribery? I will cover this under application of law.
  7. Second allegation is, on or about 25th June 2018, Respondent’s agent namely Castro Site also gave V soccer club an amount of $1,000.00. The money was given to Tiana on behalf of the club. This allegation too was admitted and Respondent pleaded the defense under Section 126 (5) (c) cited above. Mr. Bolosazar Tiana gave evidence for the Petitioner. Mr. Tiana’s evidence had no background, as to how and why Respondent gave $1000.00 to V soccer club. Tiana only said, it was Castro Site (Team Captain) that relayed to him Respondent wanted to give $1,000.00 to the club. The background to the Respondent giving the $1,000.00 came from Team Captain (Castro Site) and a Team player (Alfred Tione). Both gave evidence for the Respondent. Both gave background evidence to the $1,000.00 in response to my question. Their story is something along the following lines: “That the V soccer club received invitation from Maravari community for a fundraising, in which soccer, will be an activity to raise funds. The V soccer team under leadership of Castro Site (Captain), Tiana (Team Manager) and Chief Tianakera (Coach) had prepared V soccer club to attend the Maravari soccer tournament fundraiser. They trained. They fundraise. And so they had “registration fees money” to cover for 2 teams. But they run out of money to feed the teams”. This is the same story from Tiana (money for registration secured but still without money for food). So according to Mr. Site and Mr. Tione, they had a meeting and resolved to seek assistance from 3 people in the greater V community - Mr. Koloson, Mr. Habakuk and Respondent. Following the request for assistance, Mr. Site told Mr. Mr. Tiana that Respondent wanted to give $1,000.00 to V soccer club. I prefer Site and Tione’s story, because they corroborated in a big way (the background to the giving). And corroborated Tiana’s evidence that the club has money for registration fees, but run short of money for food.
  8. Respondent’s assistance was in response to a request. A request that the Team Manager (Mr. Tiana) deny having knowledge about. But his team captain (Mr. Site) and team player (Mr. Tione) were well aware of, because as the two players say in evidence, request arose from a team meeting resolution and Tiana wrote the letter of request (though denied by Tiana). Whether or not this giving amounts to bribery will be covered under application of law. But for now I prefer the evidence of two people over that of one person (corroboration). That is to say Respondent gave in response to a request from a soccer club in his own village.

4 (4) (a), (b), (c) and 4 (5) (a) and (b) – Giving out of monies at Kolokolo and Niarovai villages

  1. At Kolokolo village, it was initially alleged that on or about 9th June 2018, Respondent and his wife, accompanied by Mr. Mima walked from Niarovai village, to Kolokolo village, whereby Mr. Mima witnessed Respondent gave money to 16 people inclusive of the community’s fundraising drive support ($4,000.00). Respondent denied giving monies as alleged in his defence. Same denial is made for giving of money at Niarovai (covered from paragraph 37). Respondent did however say in defence that these two villages consist of people from his father’s side. And if he gave money, it is only proper as he was visiting his own people. And that a visiting relative who has the means and resources is obliged in custom to give to relatives. But denies the amount specified against the individual names as alleged either at Kolokolo or Niarovai villages.
  2. As noted in paragraph 4 above, ten (10) allegations at Kolokolo village, were dropped. Respondent denied this entire allegation. At trial only one witness gave evidence on this allegation for the Petitioner. Some of the alleged recipients gave ss evidence for the Respondent to deny receiving money. This allegation failed basically because the recipients were not called to confirm or deny receiving the money. It is not enough just to say someone had seen people receiving money. The receiver must be in court to testify himself or herself, where Respondent had denied the allegations. Bribery as an offence denotes, that there has to be a complainant, to start with. This means all the people James Mima says he saw received money must be brought to court. Respondent says in defence that he gave money to people, because these are 2 villages belonging to his relatives (Kolokolo and Niarovai villages). Respondent’s father hails from these 2 villages. But denied in defence, he gave the amounts specified against the individual names as alleged.
  3. Allegations against 10 people were dropped as noted in paragraph 4. The only surviving allegations are against: Stanley Kabokera, Polin Doravuru, James Mima, Mark Lelopala, Relvie Besipiqe and Kolokolo community fundraising drive.
  4. As against Stanley Kabokera, he denied receiving the money ($500). The allegation ends there. If bribery is an offence, then there must be a complainant (Kabokera), even in a civil case. As for Mr. Mark Lelopala he said, Respondent gave him $100.00, so he could work for him at the 2019 GE. Under Section 70 (1) of the Evidence Act (No. 11 of 2009), both counsel agreed that Lelopala’s ss be admitted, without cross – examination, because he is a disable person (hearing problem). And the court to give appropriate weight to Mark Lelopala’s evidence. Respondent is Mr. Lelopala’s second cousin brother. And that he met Respondent at Kolokolo village, at Chief Kabokera’s house. Respondent gave him $100.00 as they shook hands. And Respondent asked Lelopala to work for him at the 2019 GE. Giving of $100 and asking Lelopala to work for Respondent at the 2019 GE is not bribery. That is the end of it.
  5. Mark Lelopala also went on to say Respondent gave his wife (Relvie Besipiqe $100) and their daughter (Viloni Mark received $100.00). Allegations relating to daughter and wife are dismissed. They ought to come personally to court. I accept Respondent gave $100.00 to Mr. Lelopala to work for him at the 2019 GE. But that is not bribery. Mark Lelopala can or cannot work for him, as was the case with James Mima below. And Mark did not say anything on that. Mark is a cousin brother of the Respondent. Respondent gave $100.00 for Mark to work for him at the 2019 GE, as they met and interact. That’s not bribery. It is not unusual for relatives to meet after many years apart to interact this way.
  6. The remaining witness for Petitioner is James Mima. Mr. Mima says in ss evidence, Respondent gave him $150.00 and asked him to work for him in the 2019 GE (paragraph 12 ss). When I asked Mr. Mima in court, whether Mima worked for the Respondent, his answer was “First time mi work for hem, go go somehow mi leavim hem and work for former”. In English this would translate: “I worked for Respondent initially, but somehow, left and worked for the former” - meaning the Petitioner. The $150.00 was not bribery, because Respondent gave it to James to work for him and he accepted it. Later James changed his mind and worked for Petitioner. And to ask someone to work for an intending candidate is not unlawful act. This incidence shows that a person receiving money cannot be deemed to have been influenced by the receipt of the money. And so it becomes risky to assume that giving and receiving of money will have a reciprocal effect on the receiver. Another clear example is that of Mr. Patrick Painipitu. He benefited immensely from the giving but the giving did not have reciprocal effect on him.
  7. Mr. James Mima also gave contradictory evidence on the $4,000.00 allegedly given to Kolokolo community fundraising. In ss evidence, Mima said he heard from the people at the village, Respondent paid $4,000.00 worth of goods from the fundraising for people to share. Then under cross examination, he said he saw, Respondent gave $4,000.00.
  8. Another contradiction is under cross – examination he said, he did not see the Respondent at the fundraising. Though in ss, he said he saw Respondent at Kolokolo on his second visit hanging around with Chief Kabokera at the Kolokolo fundraising. This witness changed his story. So I do not believe him on the $4,000 fundraising allegation. Absent that, to give money at a fundraising or to pay for food at a fundraising is not unlawful. A fundraising is a public event that people are called to pay for food and donate money in different ways. And anyone could pay for food. There is no credible evidence that Respondent paid for food at the fundraising, in an unlawful manner, which can be equated to bribery.
  9. Similarly, Petitioner alleged that, on or about 9th June 2018, Respondent and his wife visited Niarovai village, whereby they met and talked to various people and informed them that he would be contesting the 2019 GE. At the same time, he gave money to the people he met totalling up to $10,150.00. This sum of money was given to different people, each receiving different amounts. Initially about 58 people were alleged to have received money from Respondent inclusive of Niarovai fundraising drive, Fresh Bonito and Market Betelnut and leaf.
  10. As noted in paragraph 5 above, Niarovai bribery allegations against 42 people were dropped. Only 16 people allegations, reached trial. Mr. Stanley Sogolo, gave evidence for the Petitioner. Mr. Sogolo said in evidence he saw Respondent gave out monies to the 58 people, including himself. His evidence was that Respondent gave him $150.00 for his smoke at Mr. Connelly Siruo’s house. Mr. Siruo’s house is one of the houses, Respondent met with his relatives, in Niarovai village, during his visit there in June 2018. I would only stop at the visit made in June 2018, as I am not entirely satisfied, whether the visit was made on 9th June 2018 (Petitioner’s evidence) or 23rd June 2018 (Respondent’s evidence). It is enough that Respondent made a visit to Niarovai and Kolokolo villages and met with his people in June 2018.
  11. Witness Mr. Sogolo, also saw Respondent shook hands and gave money to 55 people, at paragraph 12 of his filed ss. I found this evidence fascinating. How could Mr. Sogolo be able to know the exact amounts of money ranging from $50.00 to $500 given to 55 different individuals? When I asked Mr. Sogolo, his answer was, for the smaller amounts, in single notes ($50.00 notes and $100.00 notes), he could easily tell, because he saw people receiving the single notes. For the multiple big notes and for others, those individual recipients, have told him a day after. This would be “hearsay” evidence. So I must be careful, in that “hearsay” evidence is generally inadmissible. The way to be careful is to hear from the named individual recipients directly. And so the following named individuals gave ss evidence for Respondent, denying they received money from the Respondent on the trip. The individuals are: Chief Duddley Sobele; denied receiving $500; Conley Siruo Senior deny receiving $500.00; Quladonga deny receiving $500.00; Epi Dage deny receiving $200; Osah Didobule deny receiving $100.00. Others who made denials via ss are: Nelma Bera ($100); Pago Mizilin ($100); Mairi Imapige ($100); Serah Tuke ($500); Qurapitu ($500); Vizuvaka ($200); Divo Jim Eluis Nipala ($50.00; Miurily Olaaula (admit receiving $50.00, but deny Respondent asked her/him to vote for him); Gibson Kiopitu ($100); Kologota ($100); Zeralyn Vizuvaka ($200); Jimson Sofu ($50.00); Job Sasakara ($100); Henry Didobule ($100); Liliqula ($200); Myra Limako ($100); Emy Sirou ($100); Jevilyn Rupamata ($100); Teroata Au ($50); Namuqula ($50); Muma Vido ($100), Obed Lepe ($100), Janet Lilixuru ($50.00), Bendrick Binoto ($50); Lorrine Tolavuru ($100); Mabelyn Divo ($50); Maria Lorina ($100); Lurila Cathry ($100); John Roy ($500); Manolo Tuke ($50); Margaret Masaaula ($200) and Merenaiti Otagula ($200).
  12. The only persons who came to court as witnesses for the Petitioner to confirm receiving money from Respondent at Niarovai are: Mr. Sogolo ($150.00 for smoke & bettle nut); Freda Tamurade ($50.00), Nelly Kadovido ($200.00) and Betrisia Soipa ($150.00). Allegations made against recipients who made denials failed, because of the denials. Bribery being an offence means there has to be a complainant to start with.
  13. For those who confirm receiving money, there are only four. I accept that they had received the money but with gladness. They went away and benefited from the money. And later came to court.
  14. I actually asked Betrisia Soipa, if she knew it was “wrong” for Respondent to give her money at the material time, yet she took the money and later came to court to raise complaints. Her answer was “she knew, it was wrong” at the material time, yet she took the money. When counsel Afeau asked her the same question, after me, her answer was “she knew later”, “not at the material time”. She changed her story. She said a lot of people took money. So she too took the money. This witness was a happy receiver of the money. And later on used to make up a case against the same person, who gave her money. If she knew about what was happening was wrong, then she should have stood up against the wrong, and reject the gift (had opportunity to refuse a wrong).
  15. The same applies to Nelly Kadovido. A happy receiver and later used to give evidence. She knew it was wrong to give money at the material time, yet she received the money. She had opportunity to reject receiving money, given in a wrong way, yet she accepted the wrong gifted money and later came to court.
  16. Same goes to Freda Tamurade. This witness and the two above, were apparently happy receivers of the money, went away, benefited and used in this case. I am not satisfied that the giving of money at Niarovai to them was bribery. Freda Tumarade said in custom she is stronger than Respondent – being born from a female. And Respondent – being born from a male. I took it that Tumarade is born from a woman who is sister or cousin sister to the man who begot Respondent. If indeed this was true, I expect she should be strong to refuse the money Respondent gave to her, because she knew it was wrong. Instead she was a happy receiver, went away, benefited but an apparent supporter of the Petitioner and later used in this case. In all of these giving, I am not satisfied it was bribery. I am of the view that if someone knows he/she is being bribed, he/she should reject it and not go away, benefit from it and come and complain to court later. The giving to Sogolo was for his smoke and bettlenut. Mr. Sogolo had accepted the money, given for his smoke and betelnut. And is not bribery to give smoke money to a relative. Respondent says people at Kolokolo and Niarovai villages are his close relatives, on his father’s side. Many other witnesses corroborated this fact on blood relationship.
  17. Now one other issue arose. And that is the witnesses for the Respondent totally denied Respondent went to Kolokolo and Niarovai in June 2018, to talk to them about his intention to contest the 2019 GE. I do not belief in their denials. To the contrary, I am quite certain that Respondent came back to Solomon Islands in June 2018, and a few other times as the passport entries shows, to inform people about his intention to contest the 2019 GE. But what is wrong with doing that? What is unlawful about doing that? I considered there is no wrong. Petitioner did not contend that it was wrong or unlawful.

4 (6) and 4 (9) - Assistance to Chief Vincent Ghani to build his private Rest House, at Gizo ($10,000.00) and Assistance to Sambora clinic opening program cost ($6,000.00).

  1. First allegation is that on or around 10th June 2018, Respondent gave $10,000.00 to Vincent Ghani, on Vella La Vella, to assist them, built his (Ghani’s) rest house in Gizo. After that, at Sambora village, at a church meeting, Ghani stood up and inform the people that Respondent has given $10,000.00 to assist him with building his rest house and announced to the people, Respondent’s intention to contest the 2019 GE. Vincent Ghani was a campaign agent of the Respondent. Respondent deny this allegation and pleads the defence in Section 126 (5) (c) of the 2018 Electoral Act.
  2. The evidence Petitioner produced on this allegation, through witness Hughie Basi was something totally and factually different. Evidence by Basi, says that Respondent gave $10,000.00 towards completion of Sambora rest house. And that on or about 10 June 2018 Ghani announced this assistance to the congregation in church service at Sambora. And made known Respondent’s intention to contest the 2019 GE. And that people at Sambora should support and vote for Respondent.
  3. Respondent produced evidence through Vincent Ghani, that Respondent gave $10,000.00 to him as donation towards Sambora rest house, not his own rest house. Chief Ghani said the $10,000.00 was Respondent’s “tithe” money. And so the money was dedicated in church.
  4. This allegation will be dismissed because Court is not satisfied with the bribery allegation raised in relation to Ghani’s private rest house in Gizo, which, Respondent totally denied in his defence.
  5. Petitioner is bound to proof at trial what he alleges as a material fact and issue from the pleadings. If he fails, then his case is doomed to fail. Halsbury’s Laws of England, 4th Edition, Reissue, Volume 31 (1) on the same has these to say: -
“ A party is bound by his own pleadings and his case is confined to the issues and questions raised unless and until they are duly amended”[5]
“The function of pleadings is to give fair notice of the case, which has to be met. It is also to define with precision the matters on which the parties differ and the points on which they agree, and thus to identify with clarity, the issues on which the parties will ask the Court to adjudicate to determine the matters in dispute between the parties”[6]
“A plaintiff who at trial radically departs from his case as pleaded is likely to fail”[7]
  1. For this major flaw in the Petitioner’s case (evidence - radical departure from case pleaded), I am not entirely satisfied, with this bribery allegation made against Ghani, in regards to his Gizo private rest house assistance. This allegation, therefore fails, to meet the required standard of proof, there being no evidence, to support the issues emanating from the material facts pleaded. The material fact pleaded is Respondent assisted Ghani’s Gizo private rest house, with $10,000.00. The issue emanating is whether the giving amounted to bribery and or whether it was bribery when Ghani announced the assistance publicly in Sambora village. The Respondent and or his witnesses do not have to exonerate themselves, because until the burden of proof shifts, that burden remains with the Petitioner/Claimant/Plaintiff (See also Bae v Ramofafia[8]). Burden has not shifted where, the material facts and issues, are radically different from the evidence produced at trial.
  2. Second allegation at Sambora village, relates to a $6,000.00, which Respondent gave towards Sambora clinic opening program costs. That on or about 29th August 2018, Respondent deposited $6,000.00 into Vincent Ghani’s bank account, for Sambora clinic. Vincent Ghani, an agent of the Respondent, handed the money to Chairman of the clinic committee Mr. Sepi and Treasurer, Mr. Titus. Respondent deny this allegation and pleads the defence in Section 126 (5) (c).
  3. Petitioner’s witness for this allegation is Mr. Qorailo Edmond – who confirmed that on 29/08/2018, Vincent Ghani gave the $6,000.00 to chairman of the clinic committee Mr. Sepi. Money was Respondent’s contribution towards the cost of opening ceremony for Sambora clinic. Mr. Ghani was main agent of the Respondent. Chief Vincent Ghani confirmed money went through his private bank account. And confirm that Respondent gave $6,000.00 towards Sambora clinic opening program cost. And that Ghani announced the help in a speech he made at the opening program. The $6,000.00 was requested from the Respondent. Similarly, Petitioner also assisted with another $6,000.00 making a total of $12,000.00, to help with the opening program costs. Petitioner also assisted upon request from Sambora community. The evidence of Chief Ghani[9] shows that Petitioner and Respondent contributed $12,000.00 in equal halves, towards Sambora clinic opening program cost, upon request from Sambora clinic committee. Did Respondent committed bribery in his donation? Covered in the application of law.

4 (12) and 4 (13) - Assistance towards Sambora students outstanding school fees ($1,100.00) and Sambora staff house project ($1,000.00)

  1. Petitioner alleged that on 14 February 2019, Mr. Dexter Madava, an agent of the Respondent, gave $1,100.00 to pay for students’ school fees at Sambora Primary School. Payment was alleged to be for the outstanding school fees for the whole Sambora school students’ enrolment.
  2. Additionally, on 22 February 2019, the alleged agent Dexter Madava gave a cheque of $1,000.00 to Sambora. Respondent deny both incidences, saying Dexter used his own money on his own accord, not acting as Respondent’s agent. Pleadings did not say what the cheque was for. In the evidence produced for Petitioner, Mr Edmond Qorailo says the $1,000.00 was a donation from Mr Dexter Madava, an agent of the Respondent. Statement evidence did not state what the $1,000.00 donation was for. In oral evidence, to answer to questions, in cross – examination, Mr. Edmond Qorailo, said the donation was for staff house construction.
  3. Mr. Dexter gave evidence for the Respondent. Mr. Dexter did not deny he gave $1,125.00 and $1,000.00 to Sambora community in February 2019. Dexter explained that he paid $1,125.00 to settle outstanding school fees for 45 students only, not the whole school students’ enrolment, and not the amount of $1,100.00 as alleged. Dexter gave the assistance after he attended a PTA meeting at Sambora village, where the issues of: outstanding school fees for 45 students and staff house construction were raised on the agenda. Petitioner’s evidence from Mr. Qorailo confirmed the PTA meeting. And confirm Mr. Dexter’s attendance.
  4. The PTA meeting had tried to talk about doing a fundraising to settle the outstanding fees, but had a clash of time. The outstanding fees were to be settled in time to avoid the 45 students sent home from school. The week proposed for Zones 2, 3 and 4 of Sambora community to do fundraising clashed with the week already engaged for the “Harvest Market”. Amidst these difficulties, Mr. Dexter was moved in compassion and offered to settle the outstanding fees.
  5. Next agenda issue raised at the PTA meeting was staff house construction. At a staff housing project fundraising, following the PTA meeting, Mr. Dexter gave $1,000.00 in form of a cheque. Dexter’s own cheque money. It is worth noting that Dexter is a parent of Sambora primary school. And was attending a PTA meeting, where issues to do with money were raised. Two of Dexter’s kids are students at the school. Dexter is from Maravari village, but got married to a woman from Sambora village. Mr. Dexter owns a small business in Honiara, after resigning from Telekom. And so what Dexter did was not out of the ordinary. This is a school; his children goes to. This is a village he’s got married from. Dexter has money because he runs a small business in Honiara. Was visiting and attending a PTA meeting, at which issues to do with money, to help the school arose. And so Dexter stepped in and assisted.
  6. Now the allegation is that Mr. Dexter is a strong supporter of the Respondent. Strong supporter because, Dexter held a meeting with his tribe at Maravari village, according to Edmond Qorailo. Mr. Qorailo in cross examination said he heard about the meeting from other people. This is “hearsay” evidence and cannot be admitted. The same applies to Qorailo’s oral evidence under cross examination, that Dexter held election related meetings, at his house in Sambora. But Qorailo failed to give direct evidence that he witnessed or attended the meetings. Mr. Dexter denied holding a tribal meeting at Maravari village (was only visiting his aged mother). And denied holding election related meetings at his Sambora house. I am not entirely satisfied Dexter is an agent for the Respondent, on these hearsay evidences. Besides the allegation that Dexter was an agent, which he denied, there was no further credible and direct evidence to establish that he was an agent or that he was involved in any active election roles, that can be connected to the Respondent, like a campaign manager or that he accompanied Respondent during election campaigns or a financier of the Respondent. But Dexter admitted knowing the Respondent from High School.
  7. I am satisfied Dexter gave $1,125.00 (outstanding school fees) and $1,000.00 (staff house) to Sambora community/school in February 2019, as a parent of the school, after attending a PTA meeting, at which needs for money arose. But I am not entirely satisfied the assistance was election related nor was it a bribery, that can be connected to Respondent. Accordingly, this allegation fails.

4 (17) - Promise of $3,000 - $5,000 to induce voters through out every village in SVVC

  1. Petitioner alleged that from June 2018 to 3rd April 2019 GE, Respondent and or his agents or supporters went around SVVC, circulating the promise that, everyone who voted for the Respondent, will receive the sum of $3,000 to $5,000 each. The agents and supporters who spread the promise around SVVC include: Siruo, Jamo, Karen and Hickson Maeke. These agents spread the promise to every village in SVVC. Respondent denied this allegation in its entirety, in his defence.
  2. It surfaced from oral evidence at trial, that there are about 17 main villages in SVVC. Main villages are: Kibiri, Valapata, Lambulambu, Beiporo, Niarovai, Kolokolo, Kuava, Eleoteve, Maravari, Buleana, Uzaba, Barokoma, Vonunu, Sambora, Varesi, Supato and Lajaka.
  3. Petitioner produced ss evidence from Mr. Stanley Sogolo of Niarovai, who said, at paragraphs 17 and 18 that before the election, he already heard people in Niarovai village, talking about Respondent’s promise of $3,000 - $5,000. Mr. Sogolo went on to say that on Sunday 8th July 2018, he had an argument with Mr. Connelly Siruo Junior, who came to his house, to tell him and his wife about the promise. He told Connelly that Respondent could not afford the promise. Mr. Sogolo’s evidence is that he heard people talking about the promise before and after the election.
  4. The other witness who talked about the promise is Brian Emo of Maravari village. Brian’s evidence is that on 2nd April 2019, day before the GE, Max Anukera, Amon Pioda, Kabukora and Brian himself went to Erickson Nagasa’s house (village canteen). Mr. Nagasa called them into his house, gave them food items from his canteen and told them about the promise. Mr. Nagasa is a main supporter and agent of the Respondent. Then Brian said, Mr. Nagasa told them not to tell anyone.
  5. Another witness who gave evidence about the promise is Frederick Lolomaeke from Maravari village. His evidence is identical to Brian Emo’s evidence in that Mr. Nagasa told them (Lolomaeke, Zebete and Alister) about the promise.
  6. The other witness is Alison Bali, from Sambora village. His evidence is before 19 February 2019, many people in the village were spreading the story, about the promise.
  7. There are 17 or more villages in SVVC. Whilst the allegation says that the promise was wide spread throughout all the villages in SVVC, witnesses from 3 villages only (Niarovai, Maravari and Sambora) came to testify about this allegation. And a major common weakness in their testimony is, they were unable to pin point in direct evidence, to connect the Respondent to this promise.
  8. If the promise was wide spread before and after the election, throughout all the villages in SVVC, then the Respondent had toured around SVVC, during the campaign period, leading up to the 3rd April 2019 GE. Undoubtedly, Respondent had campaigned in the main villages in SVVC. And the villagers had the opportunity to ask him direct about the promise. Yet no one did, as I gathered from the evidence. Nowhere in the ss, for the Petitioner, was there evidence that the complainants: Mr. Sogolo (Niarovai village) and Mr. Bali (Sambora village) have asked the Respondent about the promise during his visit to Niarovai and Sambora villages. I am sure Respondent campaigned at Niarovai and Sambora villages. Mr. Sogolo and Mr. Bali had opportunity to seek answers from Respondent during campaign period, prior to GE on 3rd April 2019.
  9. In fact, Mr. Bali revealed in ss evidence, that on 19th February 2019, Respondent visited Sambora village. And there was a gathering in which 5 families made public declaration of their support for Respondent. Mr. Bali attended the gathering. Mr. Bali was then, a member of Respondent’s campaign committee at Sambora village, who later broke allegiance to support the Petitioner. Mr. Bali had opportunity then to ask Respondent direct about the promise. He did not. Instead he said he heard the story from Hickson Maeke, main agent, of Respondent. Hickson Maeke denied the allegation in ss. What was important was Mr. Bali had opportunity to ask Respondent direct, at the 19th February 2019 gathering, then as Respondent’s campaign committee member. Yet he failed and only relied on third parties (Maeke – who strenuously denied relaying the promise).
  10. Respondent was banned from campaigning at Maravari village. There is a minority group of supporters, who followed the Respondent, at Maravari village. Maravari (M) village is the strong hold for the Petitioner. Petitioner comes from M village. Respondent’s “minority support group” was led by Eric Nagasa and his brother Alison Lemopala (one of Respondent’s three (3) nominators). These two brothers are business people at M village. The two brothers own a big store in the village. Though both tried to deny, a big store, I was convinced, it was a big store – having operated in 15 years in a separate building. And having seen the monthly outflow of cash from the canteen record book (COE[10] 3).
  11. The evidence I heard was that, Respondent’s supporters at M village, was a minority group. That they were hated and persecuted for supporting the Respondent. As a result of the hatred and persecution, Respondent was barred from doing any campaign at M village, during the campaign period in 2019. Respondent only met with his supporters in the village. In March 2019, the brothers’ canteen was broken into. Money and goods were stolen (COE 3). A case on this alleged canteen robbery is with the Police (COE 4). A post-election violence was again mounted against Erickson Nagasa. Again a post-election violence complaint is with the police (COE 5).
  12. In the circumstances, it is not safe for the court to rely on the evidence put against Erick Nagasa and his brother Lemopala in this petition, because, the allegations were made against a background of persecution and hatred for the minority group that supported the Respondent at M village. I am of the view that the allegations are politically motivated – M village been the Petitioner’s strong hold. The Maravari allegations against Respondent and his agents are dismissed. Because I say the allegations are politically motivated, I am not satisfied on a high standard, with any allegations raised at M village. Anything bad could be said against Respondent’s supporters, at M village, due to hatred and persecution.
  13. Court found that this was a mere rumour, too good to be true and people had opportunity to seek answers from the Respondent, during the campaign period. Yet no one did. Why should they come and tell the Court, when they had opportunity to confront the Respondent during campaign, to clarify the rumour, yet they slept on the promise, by not asking the Respondent direct. Even witness Sogolo said he had an argument about the promise with Connelly Siruo – meaning the promise was too good to be true.
  14. I am not entirely satisfied that this is a strategy Respondent employed to win votes in every village in SVVC. This allegation therefore fails. This promise sounds too good to be true. All it was, is a mere rumour, widely circulating may be!

Allegations dismissed instantly for not meeting the standard of proof

  1. Before discussion and application of the law, I need to state clearly that some bribery allegations, the burden of proof have not shifted and are therefore dismissed without applying the law. With such bribery allegations, I am not entirely satisfied that the allegations are made out on the required standard of proof. And so those allegations are dismissed instantly without application of the law on bribery; as evident from the scrutiny already made. Those allegations are: (4 (1) (a)) - Patrick Painipitu’s $6,000.00 request for assistance towards Supato rest house; (4 (4) (a) (b) (c) and 4 (5) (a) and (b)) - giving out of monies at Kolokolo and Niarovai villages; (4 (6)) - $10,000.00 assistance towards Ghani’s private rest house in Gizo; (4 (12) and 4 (13)) - Mr. Dexter payment of $1,125.00 towards Sambora primary school students outstanding school fees and Mr. Dexter payment of $1,000.00 towards Sambora primary school staff house project and (4 (17)) - $3,000.00 to $5,000.00 promise to voters.

The Law and Application of Law

  1. The standard of proof is a high one (repeat paragraphs 8 and 9). Also repeating the law as already stated that if one incident of bribery is established against the Respondent and or his agent, the election result will be invalidated (repeat paragraph 9).
  2. Both counsel agreed that, under the Repealed Act[11] or the New Act 2018[12], the two common basic elements of bribery to prove are the same. The Repealed Act speaks of giving etc... with the intention of influencing the other person... The New Act speaks of giving etc... with intention to induce such elector to vote...” The two common basic elements are succinctly stated, recently by Chief Justice Palmer in Temahua case as: there must be a promise, offer or benefit from Respondent (first element). And that the promise, offer or benefit from the Respondent was given with the intention to influence the beneficiary receivers/electors (second element). Both elements of bribery must be established.
  3. On the first element for the remaining bribery allegations, it is not difficult to establish on the evidence. That is to say in the remaining bribery allegations, the Respondent admitted in evidence (through other witnesses) that he gave benefits to the recipient communities – (4 (2)) - Supato community hall ($10,000); (4 (3) (a) and (b)) - Vonunu church building fundraising ($20,000.00) and Vonunu soccer club ($1,000.00) and (4 (9)) - Sambora clinic opening program cost ($6,000.00). It is the second element that I must now dwell on. That is whether or not the Respondent had given the monies, with the intention to influence voters.
  4. I must start by saying that this is the most difficult element to prove in this case. I am not God, that I can see through the heart and mind of the Respondent, to say with ease, whether Respondent gave money (benefit) with the mens rea (intention) to influence votes or voters. It becomes even more difficult because the Respondent was not called to give evidence voluntarily, or not summoned to give evidence by the Petitioner.
  5. Evidence I have surrounding all the allegations came from secondary sources (witnesses) not primary sources (Respondent himself). I am however guided by precedent in this jurisdiction. And the cases are saying that the Respondent’s intention is to be assessed by the court, on the facts that surrounds the giving. The Ha’apio case cited by counsel Afeau relevantly states:
  6. The above are supported by another case[13] cited by counsel Kwaiga, which relevantly stated:
  7. Clearly whether the intention was to influence the vote must depend upon the circumstances and manner in which the gift was given or the time when it was done and the nature of the gift. Each case must be treated on each own merit or circumstances. For it is rare to have two identical cases. So let me turn to look at the circumstances that surrounds the remaining bribery allegations (giving) and apply the law. And from the facts, evidence and in view of all the circumstances of this case, whether Respondent’s giving out of monies to communities were made with intention to do that which legislation forbids (i.e. bribe voters). And whether from the facts, evidence and in view of all circumstances in this case, the only conclusion or the only interpretation the Court can draw is Respondent had intention to bribe voters?

Supato community hall - $10,000.00

  1. I covered this incident in paragraphs 15 – 19. I found that, Respondent gave $10,000.00 in response to a request from a community pastor, who has concern for his community’s upcoming church centenary program. A pastor has a duty in a village to ensure that his church programs are implemented and in a timely manner. And at times that duty means he has to secure funds to implement programs, through seeking assistance from others or from outsiders. This is exactly what happened here. Pastor Wayne sought assistance to implement his church centenary program, hall construction.
  2. I find it hard to label giving in response to a request from a pastor bribery, because this is not the only conclusion to draw. This is not the only interpretation which warranted adopting as the true one on the evidence. There are a few conclusions or interpretations here. First a pastor was discharging his duties in securing money for church programmes (centenary preparations – built community hall). Secondly, Respondent was giving his “tithe money” to God through the church (Pastor Wayne asked Respondent to assist with his tithe money). Thirdly Respondent was helping a close relative to carry his burden (Respondent and Pastor Wayne are cousin brothers and it was a burden on Pastor Wayne to complete Supato community hall, in time for the 2019 centenary programme). Fourthly Respondent assisted Supato community hall with intention to influence voters, to vote for him at the 2019 GE. From these four possible conclusions or interpretations, I do not know which one to settle with. I must be careful not to take the culpable interpretation in the circumstances, after a very thorough scrutiny. Therefore, I am not entirely satisfied on a high standard of proof that the giving of $10,000.00 to Supato community was bribery.

Vonunu: $20,000.00 (Church building) and $1,000.00 (Soccer club)

  1. I covered these two incidences in paragraphs 21 - 28. Furthermore, I would also add that Respondent gave $20,000.00 and $1,000.00, as a matter of communal obligation. Former was Respondent’s fundraising contribution ($20,000.00) towards the construction of his village temple. Latter assistance was made in response to request. I find it hard to label the $20,000.00 as bribery, because this is not the only conclusion to draw. This is not the only interpretation which warranted adopting as the true one on the evidence. There are a few conclusions or interpretations here. First the money Respondent gave was money, he raised in NZ, towards the church building (an ongoing village project). And had given it, returning to the village, after 20 years of absence. Secondly it was Respondent’s tithe money. And the proper place to give tithe money was his village church building construction. Thirdly Respondent is from V community. And he has a communal duty to discharge, such as building a community temple. Constructing a temple is a noble thing. And every community, a Christian believer is almost duty bound to contribute money, time and labour to build their church building (talking about the obvious). This village belongs to the Respondent. And he was helping out in an ongoing fundraising effort to raise funds to build his village temple. Fourthly Respondent gave $20,000.00 with intention to influence voters at V village, to vote for him at the 2019 GE. From these four possible conclusions, or interpretations, I do not know which one to settle with. I must be careful not to take the culpable interpretation in the circumstances, after a thorough and serious scrutiny. Therefore, I am not entirely satisfied that the giving of $20,000.00 was bribery.
  2. The $1,000.00 given to V soccer club was given upon request from the club. And there are few conclusions, or interpretations I can draw here. First the money Respondent gave was in response to a request from his own village relative boys (team members are his relatives). Every village elite, who has the means is always called upon for help. This is not unusual. Secondly, Respondent is from V village. And has a communal duty to discharge, such as helping young boys in his village with worthwhile activities (sports). Thirdly, Respondent gave the $1,000.00 in response to a request, with intention to influence the soccer players to vote for him, at the 2019 GE. From these three possible conclusions, or interpretations I do not know, which one to settle with. I must be careful not to take the culpable interpretation, in the circumstances, after very serious considerations. When this happens, I cannot be entirely satisfied on a high standard of proof that the giving of $1,000.00 amounted to bribery.

Sambora Clinic Opening Program Cost - $6,000.00

  1. I covered this incidence at paragraphs 52 – 53. There is not much in this allegation. The evidence before me was that both Petitioner and Respondent gave $12,000.00 in equal halves to Sambora community to meet cost of opening program for the clinic. It was suggested in evidence that Petitioner’s help was government funding. Even so the face of the Petitioner personally is promoted by the government funding. We know that government funding is administered by the Petitioner personally as the outgoing MP. I find it hard to label this giving bribery, because, this is not the only conclusion to draw. This is not the only interpretation which warranted adopting on the evidence as the true one. There are few conclusions or interpretations here. First both Petitioner and Respondent were being called upon to help in a community program. And both have actually helped as requested. Second, both Petitioner and Respondent gave the $12,000.00 (in equal halves) with intention to influence voters at Supato to vote for them in the 2019 GE. From these two possible conclusions, I do not know, which one to settle with. I must be careful not to take the culpable interpretation in the circumstances, after careful analysis. So I cannot be satisfied on a high standard of proof that Respondent’s giving was bribery.
  2. The Ha’apio[14] case also shows that timing and nature of the giving, will assist the court to say whether giving was bribery. So in the one incident at Sawarokau, that invalidate the election result, the Judge held, Respondent gave the $500.00 to 10 people ($50.00 each admitted in evidence by Respondent), during the campaign trail and there was no good reason given for doing that. So Judge concluded the only reason for giving was intention to induce voters to vote for Respondent. Court relevantly stated: -
  3. In this case, the assistances were made to communities well before the 2019 GE. And not during the campaign trail. And certainly there was good reason, put forward, why Respondent has rendered the various assistances to the communities, which Petitioner complained about.
  4. I had read the 2 overseas cases counsel Afeau relied on. And am not persuaded, I should use them. In both cases a wrong standard of proof was employed. In the Vanuatu Case[15] – the Civil Standard of proof (balance of probability) was used. In the Samoan Case[16] – the Criminal Standard was used (beyond reasonable doubt). When a wrong standard of proof is set out before a Judge, then everything else that follows and the focus is liable to be defective in law. In Solomon Islands, the standard of proof is neither civil nor criminal, but a high one nevertheless.
  5. Secondly in the two cases, the Pacific culture of reciprocity was inferred into the situations of giving. And therefore the Judges have concluded that the giving were made with intention to influence the voters. The thinking was that, if one person gives something, then the other person must reciprocate the gift, as in Pacific cultures. So if the Respondent had given gifts to voters, then the voters, as a matter of customary obligation, must vote for the Respondent. There is an English phrase for this called “One good turn deserves another”. In this case, what I found in evidence, is quite the opposite. For Mr. Patrick Painipitu asked the Respondent for sea fare ($1000.00) and Supato rest house money ($6,000.00). And Respondent gave both requests. But the assistances were all rubbish to Mr. Painipitu - did not have the impact of Pacific culture of reciprocity on Painipitu. For he regarded the giving as “dead money” giving in an “election fever period.” And people are used to receiving money from candidates. Patrick’s behaviour as portrayed in evidence tells me that voters, should not be bothered to reciprocate any help giving by intending candidates. Patrick’s evidence shows that the Pacific culture of reciprocity may not be safe to infer into every situation of giving, in election matters. A request and assistance could actually be a trick, on a potential candidate.
  6. Petitioner also used the Lilo Tanagada[17] case. I am not persuaded to use that case, either, because it is very obvious that the wrong standard of proof (mere balance of probability) was employed – See paragraphs 32, 50, 70, 75, 91, 106, 119 and 124 of the Judgment. Like I say above, when a wrong standard of proof is set out before a Judge, then everything else that follows and the focus is likely to be defective in law.
  7. The last case Petitioner used is Soalaoi[18]. That case has its own set of facts and evidence. And cannot be said to be identical to this case. For instance, some of the incidences of bribery took place during the campaign trail. In one incident during the campaign trail, the Respondent was warned not to give assistance requested towards transporting a sick. Warning came from a campaign agent of the Respondent that the sick person and family supports a different candidate. Judge held giving to the sick was bribery, because in spite of the warning, Respondent gave money. Judge drew the inference that Respondent wanted to influence the family, because, she failed to take heed of the warning from her own agent on the ground.

Conclusion and Orders

  1. In view of the foregoing findings and conclusions, the petition is dismissed with cost on standard basis. Bulk of the allegations in here relates to giving. Whether or not the giving will be held as bribery, will depend very much on the facts and evidence surrounding the giving. And as I have already found on the evidence that surrounds the giving, I am not entirely satisfied the Respondent gave in situations that could be safely described as unlawful or bribery, in the majority of allegations. The majority of allegations have not met the standard of proof and were dismissed instantly, without application of the law of bribery, either under the Repealed Act or the New Act (repeat paragraph 75). In the remaining allegations, after careful consideration of the allegations, facts, evidence and the applicable law (s), I am not entirely satisfied that the remaining allegations could be concluded on as bribery (repeat paragraphs 76 – 93).
  2. I can therefore declare, that Mr. Kologeto was the duly elected MP for SVVC. In accordance with Section 111 (5) of the Electoral Act 2018, read with Rule 35 (1) of the Electoral Act Petition Rules 2019, Court will give a certificate of its decision to the Electoral Commission, Governor General and Speaker of Parliament in due course.
  3. Orders of the Court are:

THE COURT
JOHN A KENIAPISIA
PUISNE JUDGE

[1] Fono v Fiulaua [2011] SBHC 6; HCSI-CC 335 of 2010 (11th March 2011).
[2] George Temahua v Silas K. Vangara & Another; Civil Case 282 of 2019, by Chief Justice Palmer in a Ruling delivered on 16/08/2019.
[3] Sections 66 (1) and Section 66 (2) of the National Parliament Electoral Provisions Act (Cap 87) – Repealed Act.
[4] See ss at Page 387 – 389 of Court Book – Part 2.
[5] Page 4 of Volume 31 (1).
[6] Page 7 of Volume 31 (1).
[7] Page 8 of Volume 31 (1) – See foot note 2 where various cases are cited.
[8] [2019] SBHC 89; HCSI-CC 298 of 2019 (8th December 2019).
[9] See page 279 of Court Book 2 for Ghani’s ss.
[10] COE refer to “Court Ordered Exhibit” – These are evidences that Court deemed relevant and called for their production to Court, after trial.
[11] National Parliament Electoral Provisions Act (Cap 87) – Section 71 read with Section 66 (1).
[12] Electoral Act 2018 (No. 6 of 2018) – Section 126.
[13] Alisae v Salaka [1985] SBHC 6; (1985-1986) SILR 31 (4th April 1985).
[14] Ha’apio v Keniasina [2011] SBHC 12; HCSI-CC 343 of 2010 (7th December 2011).
[15] Sope v Principal Election Officer [2009] VUSC.
[16] Vui v Ah Chong [2006] WSSC 52 (26th September 2006).
[17] Lilo v Tanagada [2017] SBHC 31; HCSI-CC 451 of 2014 (30th November 2017).
[18] Soalaoi v Tuki [2018] SBHC 88; HCSI- CC 455 of 2014 (8th October 2018).

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