Tahani v Soriacomua [2024] SBHC 103; HCSI-CC 195 of 2024 (10 September 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Tahani v Soriacomua
Citation:
Date of decision:	10 September 2024
Parties:	Angella Doris Tahani v Freda Ab Tuki Soriacomua, Returning Officer for Temotu Vatud Constituency
Date of hearing:	3 September 2024
Court file number(s):	195 of 2024
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga PJ
On appeal from:
Order:	1. The application by the First Respondent to strike out the election petition, filed by the Petitioner on 29th May 2024, is granted. 2. Consequently, all the allegations in grounds 1 to 4 in the petition are dismissed forthwith. 3. Cost of and up to the time of hearing of the application, is to be paid by the Petitioner to the First Respondent, to be taxed if not agreed. 4. A Certificate confirming the validity of the election of Hon. Freda Ab Tuki Soriacomua as the elected member for the Temotu VATUD constituency to be issued to the Governor General, the Speaker of the National Parliament and the Solomon Islands Electoral Commission.
Representation:	Mr D Lidimani for the Petitioner Mr M Hauirae for the First Respondent No Appearance for the Second Respondent
Catchwords:
Words and phrases:
Legislation cited:	Electoral Act 2018 (as amended) S 126 and 127, Prescription of Parliamentary Privileges, Immunities and Powers Act 2007, S 2 Electoral Act Petition Rules 2019, r 19 (1),r 25, r 19(2),r 51, Privileges in Law, Privileges Proceedings and Usages in Parliament (9th Ed), Constitution of Solomon Islands S 69,
Cases cited:	Maetia v Dausabea [1993] SBHC 29, Sasako v Sofu [ 2020] SBHC 7, Salopuka v Panakitasi [2020] SBHC 72, Fakani v Abana [2016] SBHC 4, Maneka v Bosawai [2024] SBHC 73,Sasako v Sofu [2020] SBHC 7 Temahua v Vagara and Another [2020] SBHC 13, Lusibaea v Filualea [2020] SBHC 28, Maneka v Bosawai [2024] SBHC 73,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 195 of 2024

BETWEEN

ANGELLA DORIS TAHANI
Petitioner

AND:

FREDA AB TUKI SORIACOMUA
First Respondent

AND:

RETURNING OFFICER FOR TEMOTU VATUD CONSTITUENCY
Second Respondent

Date of Hearing: 3 September 2024
Date of Ruling: 10 September 2024

Mr D Lidimani for the Petitioner
Mr M Hauirae for the First Respondent
No Appearance for the Second Defendant

RULING ON APPLICATION TO STRIKE OUT PETITION

AULANGA PJ

1. The First Respondent applies to strike out the petition filed by the Petitioner on 29^th May 2024. In the application, the First Respondent seeks to dismiss the petition on a number of grounds. First, the petition is ineffective as it was served on the First Respondent at the precinct of the National Parliament building. Second, the petition is an abuse of the Court’s process since the allegations were brought by a person with unclean hands. Third, the pleadings containing the allegations do not disclose a cause of action and/or are considered frivolous and vexatious to require the matter proceeding to trial, and finally, the Petitioner fails to cite any reference to any subsection under section 126 and 127 of the Electoral Act 2018 (as amended) in relation to allegations of bribery and undue influence, which amounts to ambiguity of legal or jurisdictional basis, a common ground to strike out the petition.
2. The First Respondent strongly avers that based on those grounds, the petition should be dismissed without trial, with costs.
3. The application to strike out the petition was amended and filed on 19^th August 2024. On the same day, a copy was personally served on counsel Lidimani for the Petitioner. The amended application contained an additional ground of ineffective service of the petition on the First Respondent at the National Parliament building which was prohibited by immunity under the Prescription of Parliamentary Privileges, Immunities and Powers Act 2007. Despite receipt of the amended application, the Petitioner did not file any application for enlargement of time for an Order for re-service of the petition on the First Respondent or alternatively, for waiver of the immunity. This omission remains to be so despite counsel had all along in possession of the amended application and furthermore, after he had knowledge of the defective service of the petition as one of the grounds raised in the amended application to strike out the petition.
4. Following the National General Election on 17^th April 2024, the First Respondent polled 621 votes while the Petitioner polled 71 votes. The Petitioner was unsuccessful and placed 8^th out of 9 contesting candidates. The First Respondent was the winning candidate and became the elected member for the Temotu VATUD constituency.
5. The matter was heard for mention directions following the filing of the petition. On 14^th August 2024, directions were issued for parties to file sworn statements and written submissions, and for hearing of the application. There was no representation and response from the Second Respondent to the application. This was due to no direct complaint or allegation being brought against the Second Respondent that would require any response on their part.
6. For this application, the main issues for me to determine are as follows:
   1. Whether the petition is defective as it was served on the First Respondent at the National Parliament building contrary to Prescription of Parliamentary Privileges, Immunities and Powers Act 2007;
   2. Whether waiver of the immunity can be given to validate the service of the petition on the First Respondent despite the Prescription of Parliamentary Privileges, Immunities and Powers Act 2007;
   3. Whether the petition allegations disclose a cause of action; and
   4. Whether they are frivolous and vexatious, and an abuse of the Court’s process.
7. Let me begin on the premise that the jurisprudence governing interlocutory applications and trials in this jurisdiction for election petition cases is well settled.
8. For interlocutory applications, the law as decided in a good number of cases from this Court, requires that there has to be a cause of action disclosed in the pleadings before a case can proceed to trial. The Petitioner, as held in John Maetia v Charles Dausabea, Civil Case No. 266 of 1993, and followed in Sasako v Sofu [2020] SBHC 7, carries the burden from the start to the end, to prove to the Court that there is a cause of action in the pleadings brought in the proceeding to invalidate the election or return of a candidate. It is considered “bad pleadings” as described by the Court in Salopuka v Panakitasi [2020] SBHC 72, for no disclosure of material and sufficient facts in the pleadings, which in turn will render the proceeding fatal and not actionable in Court.
9. In relation to the first issue, it is undisputed that the petition was filed on 29^th May 2024 within 30 days period after the official publication of the election result as required under section 108 (3) of the Electoral Act 2018 (EA 2018). It is also not disputed that after the filing, the Petitioner herein, Ms. Tahani, did not personally serve the petition on the First Respondent. As the evidence revealed, the petition was somehow given to a Security Officer who subsequently served it to the First Respondent at the corridor of the National Parliament on 31^st May 2024. In order words, the petition was not served by the Petitioner as required by rule 19 (1) of the Electoral Act Petition Rules 2019 (EAPR 2019) but was given to a third person for service on the First Respondent.
10. The provisions of the EAPR 2019 are not to usurp but to assist the work of the legislature, bringing clarity on the process, management and expediting of election petition cases in Court. Rule 19 (1) of the EAPR 2019 makes it mandatory by the use of “shall” for the Petitioner to personally serve the petition on the Respondent, in this case, the First and Second Respondents, within 14 days of filing of the petition. For emphasis purposes, it states:
    • “19 (1) Every petition, notice of the nature of the security and notice of the first directions hearing issued under Rule 25, shall be served personally on each and every respondent by the petitioner.”
11. A plain reading of rule 19 (1) of the EAPR 2019 is clear that it requires in mandatory terms the Petitioner to personally serve court documents, including the petition on the Respondents in this proceeding. There is no equivalent or other regulation in EAPR 2019 that authorises any other person apart from the Petitioner to serve the petition on the Respondents. If for some reasons, the service of the petition on the Respondents is not possible, the Petitioner should apply to the Court within 10 days after filing of the petition for an Order for substituted service as required under rule 19 (2) of the EAPR 2019.
12. From the facts, the accepted evidence shows the petition was filed on 31^st May 2024. On the same day, it was handed over to a Security Officer at the National Parliament who subsequently served it on the First Respondent. There can be no doubt that the Petitioner or whoever tasked to do the service was in a too hurry to serve the petition without any thought on its legal ramification. Whatever it may be, the reality is that the service of the petition on the First Respondent has breached or flouted rule 19 (1) of the EAPR 2019. This is a material breach given the need for strict compliance with the law and rules for election petition cases. Unfortunately, this has rendered it an ineffective service with an inevitable consequence that, unless an Order for substituted service of the petition is given under rule 19 (2) of the EAPR 2019, the service of the petition relied upon by the Petitioner for this proceeding must be declared invalid and ineffective.
13. Another concerning limb of the first issue shows the petition was served on the First Respondent at the National Parliament building in Honiara. This was also conceded by the Petitioner. Why this was done in blatant disregard to the law on service of court documents such as an election petition on a national parliamentarian at the National Parliament building, is unknown.
14. Section 2 of Prescription of Parliamentary Privilege, Immunities and Powers Act 2007 gives immunity and privileges to parliamentarians from liability or responsibility to a legal proceeding when they are present at the parliament building. This is an unusual or inherent right to be enjoyed by Parliament and its members for the proper discharge of their functions. One good example is immunity from service of Court documents to a parliamentarian at the precinct of the parliament building other than other locations. As stated by learned author Eskine May on Parliamentary Privileges in Law, Privileges Proceedings and Usages in Parliament (9^th Ed), that leave or permission must be sought from the Parliament before service of court documents can be accepted.
15. When the petition was served on the First Respondent at the National Parliament building, it has breached section 2 of the Prescription of Parliamentary Privilege, Immunities and Powers Act 2007. The result of this as held in Fakani v Abana [2016] SBHC 4 and more recently in Maneka v Bosawai [2024] SBHC 73 is that the service of the petition on the First Respondent is irregular and ineffective. The First Respondent, at the time of the service of the petition, was a national parliamentarian. Hence, the petition should not be served on her at the National Parliament building given the immunity afforded to her under the Prescription of Parliamentary Privilege, Immunities and Powers Act 2007, an enabling legislation made pursuant to section 69 of the Constitution of Solomon Islands. Given the irregularity of the service, in law, it must follow that the petition was never served on the First Respondent.
16. Rule 16 of the EAPR 2019 requires the petition to be served on the First Respondent within 14 days of the date it was filed at the High Court. This unfortunately was not complied with which renders the service of the petition irregular and ineffective.
17. For the second issue, the Petitioner during the course of the hearing made oral application for the Court to grant waiver of the immunity with the intention of holding or validating the service of the petition on the First Respondent. What can be deduced from counsel for the Petitioner is an emphatic argument that the First Respondent should not use the immunity as a shield from acceptance of the service of the petition at the precinct of the National Parliament, which would otherwise be allowed in other ordinary locations. His contention was based on the recent inclusion of that ground in the amended interlocutory application which he considered as an ambush to the Petitioner. Learned counsel avers that this new ground lacks merit since the First Respondent’s counsel was unethical and failed to inform him which is a ground for waiver of the immunity.
18. I have considered counsel Lidimani’s submission and with respect, it must be rejected for two principal reasons. First, there is no issue that the amended interlocutory application to strike out the petition was served on counsel Lidimani on the day it was filed at the High Court, being the 19^th August 2024. The ground and supporting facts alleging the irregular service of the petition were printed and highlighted in red. They are legible and clear in identification. As such, having receipt of the document, counsel by then should have full knowledge of that ground and cannot be said to have taken at short notice or by ambush. From the 19^th August to the hearing date on 3^rd September 2024, is a period of 15 days. This is an ample time for counsel to file an application under rule 51 of the EAPR 2019 for enlargement of time for service of the petition on the First Respondent. Nothing was done which is unfortunate. Second, there is no provision in the Prescription of Parliamentary Privilege, Immunities and Powers Act 2007 to allow waiver of the immunity on good or reasonable grounds. To allow such waiver as sought is to read and enforce what the law does not provide. This will amount to an erroneous exercise of the law. Based on those reasons, the immunity relied upon by the First Respondent remains and cannot be waived.
19. For issue three, I have decided to merge it with issue four. These require the examination of the pleadings setting out the facts in the allegations to ascertain whether or not they constitute a cause of action against the First Respondent.
20. There are four grounds of election allegations raised by the Petitioner. Ground 1 relates to the allegation of election bribery that occurred on 27^th February 2024 where the First Respondent in company of her husband gave $5,000 to Benjamin Tua for the purpose of supporting the mobilisation and luring of voters in Vanikoro. The allegation continues on to say that the First Respondent had made assurance to Tua that if he was successful in luring the voters, he would be working as a project officer for the First Respondent.
21. The Petitioner argues that the pleadings for this allegation had sufficiently disclosed a cause of action against the First Respondent in that the purpose of giving the money was clearly revealed from the pleadings. Implicitly, this satisfies the requirement for the matter to proceed to trial.
22. I have carefully looked at the pleadings for this first allegation and noted a major flaw for a number of reasons. First, this allegation is based on bribery under section 126 of the EA 2018. However, the Petitioner fails to cite the specific subsection of section 126 of the EA 2018 relied upon for this ground. On cursory reading, there are two subsections under section 126 with descriptions of different bribery allegations. The failure to cite the relevant subsection of section 126 gives rise to two situations. First, it will prevent the First Respondent to know with certainty which allegation under section 126 was brought against her so that a defence can be made in the proceeding. Second, it will create ambiguity or vagueness on the legal or jurisdictional basis that supported the allegation which in turn will render the allegation without a legal cause of action.
23. Second, there is no mention in the pleadings how the money was given to influence the voters to vote for the First Respondent. In this regard, the pleading failed to state the identities of those in Vanikoro who would be bribed to vote for the First Respondent. The pleadings merely state that he would use the money to mobilise and lure voters in Vanikoro which is nothing else but a mere conjecture which is unacceptable. The Court in Salopuka v Panakitasi [2020] SBHC 72 has expressed the similar findings as follows [pages 24-27]:
    • “...where bribery is raised as a ground to invalidate the election of the Respondent, it is necessary to state in the pleadings how that money was given with an intention to influence the voter to vote for the Respondent. If it was to influence a third person, it is also necessary to state the identity of that third person.
    • 25. To that extent, it is not clear on the pleadings who is being bribed to vote for the Respondent. If it was Wilfred Ngasi Junior (“Ngasi”) the particulars do not state how he was bribed to vote for the Respondent. They merely state that he was instructed to work with Mr. Kemakeza to influence others to vote for the Respondent.
    • 26. If some third person is being bribed, again insufficient particulars are disclosed. No third person is being identified as being the subject of the bribery allegation. By failing to specify sufficient particulars, the Respondent would not have been in a position to know how that allegation amounted to a bribe and for him to be able to defend himself.
    • 27.By failing to do that, the pleadings amounted to nothing more than what can be deduced by necessary implication or inference, and is unacceptable. The function of pleadings is not merely to define the cause of action, which is, that a promise, offer or gift was made or given, but also to show what acts or omissions will be put forward as constituting the specific element of that activity being done with an intention to influence voters to vote for the Respondent. It is necessary to state how and in what way the gift was corruptly given so as to influence the voter to vote for the Respondent.”
24. In line with the approach taken by the Court above, it should be crystal clear that it is not sufficient to merely state that the money was given to Tua, but what is important is to state with sufficient particulars how the money was corruptly given with the identities of those who were said to be the subject of the bribery. In the absence of this, the facts pleaded are insufficient to show a cause of action against the First Respondent and must be struck out accordingly.
25. For ground 2, the allegation concerns bribery that occurred on 21^st March 2024 where the First Respondent gave 3 bags of rice with the intent to influence Benjamin Tua to vote for her, as well as to support her election campaign in Vanikoro. This took place in the presence of her husband and another person at her residence at Koloale. Those bags of rice were then transported by the First Respondent’s vehicle and delivered at Tua’s residence in Lungga, East Honiara.
26. Again, there is no reference to which subsection of section 126 of the EA 2018 this allegation was brought upon. Hence, it is my view that the particulars in the pleadings for this allegation are also insufficient and inadequate to establish a cause of action against the First Respondent for the same reasons discussed earlier regarding the failure to cite the subsection of section 126 of the EA 2018 The specific legal basis to support this allegation is ambiguous.
27. Also, I have noted that the pleadings for this ground had failed to state the nature, circumstances and specific utterances or acts of the bribery said to have imposed or wielded upon Tua to influence his decision on voting. What has been pleaded in the allegation is nothing, but mere suspicion or opinion of Tua that the bags of rice were given to him so that he would vote for the First Respondent and also, to lure voters in Vanikoro for the First Respondent. The facts pleaded in the allegation are inadequate or insufficient to prove the element of intention in bribery to influence Tua on his decision to vote, which is fatal to the proceeding.
28. Another obvious defect in the pleading is the failure to state whether Tua has voted for the First Respondent as a result of that bribery. It is important to state this in the pleadings to show proof of the influence of bribery on the decision of Tua on voting. I have taken upon myself to look at Tua’s sworn statement filed on 19^th July 2024 and unfortunately, there was no evidence that he voted for the First Respondent as a result of the alleged bribery. The effect of this is, there is a complete absence of the link of the influence on his decision on voting as a result of the bribery. As such, it must follow that there is no cause of action to ground the allegation of bribery against the First Respondent. The allegation is simply scandalous, frivolous and vexatious, and one that is not actionable in Court.
29. Giving of goods by a candidate is not a bribery, unless it is accompanied with bribe or other illegal conducts prohibited by law. To invalidate the election with bribery, it is crucial that there must be specific and clear sufficient particulars in support of the allegation. In Sasako v Sofu [2020] SBHC 7 and Temahua v Vagara and Another [2020] SBHC 13, the Court has reiterated that there must be clear and cogent proof of facts in order to meet the standard required in election petition cases. This is a necessary prerequisite to determine a cause of action to warrant the progression of the matter to trial. Otherwise the matter will be struck out.
30. I have held that the pleadings for this ground lacks legal or jurisdictional certainty and is inadequate and insufficient by reason of omission of the material facts to warrant a cause of action on bribery. Based on those stated grounds, I hold that there is no cause of action against the First Respondent.
31. The allegation in ground 3 contains another purported act of bribery on Tua by one, Reagan Rotu, a spouse of the First Respondent. This purportedly occurred on 22^nd March 2024 at Lungga in East Honiara. This involved giving of a Solomon Airline ticket and $1,400 to Tua for him to undertake “groundwork” in Vanikoro. This was witnessed by Tua’s son and another family member.
32. The Petitioner, by written submission, concedes that this ground needs further particularisation. However, he avers that given the ticket and money were given to Tua on a specified date, that should be sufficient to have the matter progressed to trial.
33. For this ground, apart from the failure to cite the specific subsection of section 126 of the EA 2018, it is patently obvious that this ground lacks the necessary particulars to show the element of bribery said to have been committed on Tua by the First Respondent at the material time. The purpose of giving the ticket and the money was for him to travel to Temotu to undertake the groundwork. What was meant by groundwork is unknown both in the pleadings and evidence. While the giving of the ticket and the money may amount to drawing of adverse inference, the facts pleaded are insufficient for such finding. In any event, the giving of ticket and money by a candidate or an agent of the candidate to another, does not automatically be regarded as corrupt or illegal practice. It can only be regarded or considered in that manner if it is accompanied or tainted with a forbidden act under the EA 2018 or any applicable written law. In Lusibaea v Filualea [2020] SHBC 28, the issue of giving of a ticket to enable an attendance of a voter on the voting day was considered. The Court correctly held that giving of a ticket to a voter to attend to voting is not impermissible unless proved otherwise.
34. I have considered the facts in the pleadings for this ground. With respect, they are insufficient to establish a cause of action against the First Respondent for three reasons. First, there is no disclosure of specific acts of bribery to influence either Tua or others to vote for the First Respondent. The ticket and money were merely given on the pretext for Tua to undertake a groundwork in Vanikoro. The “groundwork”, as the catch phrase, to some extent is capable of many interpretations, both negative and positive. This is an inherent vagueness in the pleadings which makes it extremely difficult for the First Respondent to make a proper defence to the allegation. Second, there is no evidence that Tua voted for the First Respondent as a result of receiving the ticket and the money. Hence, the link or nexus to establish the influence on his decision on voting as a result of the bribery is not established. Third, there is no evidence to show the giving of the ticket and the money was under the specific instruction of the First Respondent. This is part of the due diligence duty of the Petitioner to prove this aspect of case as held in Maneka v Bosawai [2024] SBHC 73. It must follow that allegation 3 must be struck out as well.
35. The final ground of allegation contains an allegation of undue influence that occurred on 23^rd March 2024 near Chung Wah School in Honiara where it was said the First Respondent exerted undue influence in pressurising Tua to hold a meeting at his residence at Lungga for the Vanikoro voters, purposely to lure their votes for the First Respondent. The allegation further states that the First Respondent gave $1,500 to Tua at the material time to facilitate that corrupt or illegal practice.
36. The allegation of undue influence under section 127 of the EA 2018 requires an element of, amongst others, coercion, threat or intimidation that causes fear on a person to vote in a particular way. In other words, as a result of the fear brought upon by the undue influence through another person’s conduct, that influences or coerces the voter to vote differently and against the preferred candidate. Hence, it is important that the pleadings must state these material facts before a cause of action of the illegal act or practice of undue influence can be established.
37. The same predicament regarding the failure to cite the relevant subsection of section 127 of the EA 2018 also occurred for this ground. Furthermore, there is absolutely no particulars in the pleadings to show the element of undue influence imposed by the First Respondent on Tua and as a result, he was coerced to vote for the First Respondent. Put another way, there are no facts in the pleadings to show that Tua was overwhelmed with fear for his personal safety as a result of the undue influence or illegal practice effected upon him by the First Respondent that made him to vote for the First Respondent.
38. Apparently, when the pleadings for this ground are read in whole, they are somewhat vague and confusing on whether the allegation should be one of bribery, that is, the act of giving of the money to Tua or undue influence, that is, he was coerced to vote or to lure voters for the First Respondent. The pleadings have fallen short to establish a cause of action based on undue influence when practically considered. The obvious impression that can be reached from the pleadings, and revealed by the available evidence is the other way round. That is, Tua had willingly and gladly received the $1,500 from the First Respondent without any undue influence. If that is so, then it is negligent to refer in the pleadings that Tua received the money from the First Respondent under undue influence. In furtherance to the above and in the absence of the pertinent facts in the pleadings to show that Tua had voted for the First Respondent as a result of the purported undue influence, it is my view that this ground must be struck out.
39. Having reached the findings, I do not need to consider the ground regarding Tua having unclean hands in bringing the matter against the First Respondent. The grounds that have been addressed and considered in this ruling are sufficient to dispose this matter forthwith.
40. The application to strike out the election petition, filed by the Petitioner on 29^th May 2024, is granted. As held, it is struck out as a result of no disclosure of a cause of action. By filing of such unmeritorious proceeding in Court, it amounts to an abuse of the Court’s process. Cost of and up to the time of hearing of this application, is to be paid by the Petitioner to the First Respondent. A Certificate confirming the validity of the election of Hon. Freda Ab Tuki Soriacomua, as the elected candidate for the Temotu VATUD constituency, to be issued to the Governor General, the Speaker of the National Parliament and the Solomon Islands Electoral Commission.

Orders of the Court

1. The application by the First Respondent to strike out the election petition, filed by the Petitioner on 29^th May 2024, is granted.
2. Consequently, all the allegations in grounds 1 to 4 in the petition are dismissed forthwith.
3. Cost of and up to the time of hearing of the application, is to be paid by the Petitioner to the First Respondent, to be taxed if not agreed.
4. A Certificate confirming the validity of the election of Hon. Freda Ab Tuki Soriacomua as the elected member for the Temotu VATUD constituency to be issued to the Governor General, the Speaker of the National Parliament and the Solomon Islands Electoral Commission.

THE COURT
Augustine S. Aulanga
PUISNE JUDGE