Manetoali v Manemahaga [2024] SBHC 104; HCSI-CC 179 of 2024 (17 September 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Manetoali v Manemahaga
Citation:
Date of decision:	17 September 2024
Parties:	Samuel Manetoali v Trevor Hendly Manemahaga, Attorney General
Date of hearing:	2 September 2024
Court file number(s):	179 of 2024
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga; PJ
On appeal from:
Order:	1 The application to dismiss the petition is refused on grounds 3.2, 4.3 and 4.4. 2 Grounds 3.1, 4.1, 4.2, 4.5 and 4.6 are dismissed accordingly. 3 The costs of the hearing are costs in the cause. 4 Leave is granted for amendment of the remaining grounds of the petition, to be filed and served on the First and Second Respondents by 24th September 2024. 5 The First and Second Respondents are to file and serve their defence (amended if any) by 1st October 2024. 6 The Petitioner is to file and serve further sworn statements for use at trial by 8th October 2024. 7 The First and Second Respondents are to file and serve sworn statements for use at trial by 29th October 2024. 8 The Petitioner shall file and serve any sworn statements in reply by 5th November 2024. 9 Thereafter, there shall be no further sworn statement to be filed by any party. 10 The Petitioner is to file and serve his List of Witness Sworn Statements for use at trial by 12th November 2024. 11 The First and Second Respondents are to file and serve List of Witness Sworn Statements for use at trial and List of Witnesses required for Cross Examination by 18th November 2024. 12 The Petitioner is to file his List of Witnesses required for Cross Examination by 20th November 2024. 13 Any noncompliance with the Orders, unless extended by the leave of the Court, shall be a ground for any penalty to be imposed by the Court including costs or prohibition of materials to be filed and served. 14 1 The application to dismiss the petition is refused on grounds 3.2, 4.3 and 4.4. 2 Grounds 3.1, 4.1, 4.2, 4.5 and 4.6 are dismissed accordingly. 3 The costs of the hearing are costs in the cause. 4 Leave is granted for amendment of the remaining grounds of the petition, to be filed and served on the First and Second Respondents by 24th September 2024. 5 The First and Second Respondents are to file and serve their defence (amended if any) by 1st October 2024. 6 The Petitioner is to file and serve further sworn statements for use at trial by 8th October 2024. 7 The First and Second Respondents are to file and serve sworn statements for use at trial by 29th October 2024. 8 The Petitioner shall file and serve any sworn statements in reply by 5th November 2024. 9 Thereafter, there shall be no further sworn statement to be filed by any party. 10 The Petitioner is to file and serve his List of Witness Sworn Statements for use at trial by 12th November 2024. 11 The First and Second Respondents are to file and serve List of Witness Sworn Statements for use at trial and List of Witnesses required for Cross Examination by 18th November 2024. 12 The Petitioner is to file his List of Witnesses required for Cross Examination by 20th November 2024. 13 Any noncompliance with the Orders, unless extended by the leave of the Court, shall be a ground for any penalty to be imposed by the Court including costs or prohibition of materials to be filed and served. 14 Matter is listed for Pretrial Conference on 26th November 2024 at 9:30am. 15 Costs in the cause. Matter is listed for Pretrial Conference on 26th November 2024 at 9:30am. 15 Costs in the cause.
Representation:	Mr. S Kwaiga for the Petitioner Ms S Kilua for the First Respondent Mr. N Ofanakwai for the Second Respondent
Catchwords:
Words and phrases:
Legislation cited:	Electoral Act 2018 S 126, S 111 (1) (b), S 124, S 5, S 122 (f), 98, 100, 100 (1) and 02, S 112 Electoral Act Petition Rule 2019 r 24, Electoral Act (Amendment) Act 2023 S 108 (6), Subsection 7
Cases cited:	Maneka v Bosawai [2024] 73, Lusibaea v Filualea [2020] SBHC 28,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 179 of 2024

BETWEEN

SAMUEL MANETOALI
Petitioner

AND:

TREVOR HENDLY MANEMAHAGA
First Respondent

AND:

ATTORNEY GENERAL
(Representing the Electoral Commission, the Chief Electoral Officer, the Electoral Manager for Isabel Province and the Returning Officer for Gao Bugotu Constituency)
Second Respondent

Date of Hearing: 2 September 2024
Date of Ruling: 17 September 2024

Mr S Kwaiga for the Petitioner
Ms. S Kilua for the First Respondent
Mr N Ofanakwai for the Second Respondent

RULING

AULANGA PJ

1. The Petitioner and the First Respondent were candidates for the Gao Bugotu constituency in the general election in April 2024. The First Respondent was the successful candidate. He polled 2861 votes while the Petitioner polled 2848 votes. This is a close margin of 13 votes, casted in favour of the First Respondent.
2. The Petitioner challenges the election victory of the First Respondent, said to have tainted with corrupt and illegal practices, either by himself or by his agents. The other limb of the petition relates to errors, omissions or noncompliance with the electoral processes by the electoral officials that led to this unpopular election victory. In the petition, two grounds (grounds 3.1 – 3.2) were allegations against the First Respondent, while the remaining grounds (grounds 4.1 – 4.6) against the Second Respondent.
3. The First Respondent, as supported by the Second Respondent, filed an application to strike out the petition, by relying on two principal grounds. First, the failure of the Petitioner to cite specific subsection of section 126 of the Electoral Act 2018. This, in the views of the First Respondent, amounts to ambiguity or uncertainty in legal or jurisdictional basis to have the matter actionable in Court against the First Respondent. Second, the allegations were ambiguous to enable the First Respondent to make a proper defence. This renders the entire allegations against the First Respondent without a cause of action. This application is based on rule 24 of the Electoral Act Petition Rules 2019 and section 111 (1) (b) of the Electoral Act 2018.
4. Section 111 (1) (b) of the Electoral Act 2018 gives the Court the power to dismiss a petition without hearing if it is frivolous and vexatious, or the petition has insufficient grounds to require a hearing. For this case, all the parties have decided for the Court to make that finding through hearing, an option available to the Court.
5. During the hearing, counsel for the Petitioner made one important point. That is, his intention to amend the petition, but was never materialised due to the First Respondent’s filing of the application to strike out the petition. Since the pleadings have not closed, I think this submission has merit. I understand the Petitioner has already provided answers to further and better particulars and the indication for amendment of the petition is to insert the specific subsections of the Act and for the proper naming of the individuals to be the Second Respondent to this proceeding.
6. In my view, it would be improper for the Court to refuse granting of an opportunity for amendment of the petition. However, this must be exercised only on proper grounds. That is, on appropriate cases that the pleadings containing the allegations can be better improved through amendment. Otherwise, in clear cases where the pleadings are inherently and fundamentally defective, so much so that no amendment to resuscitate the proceeding, the Court should strike out the matter without trial.
7. I begin on the premise that an election petition by its very nature challenges and questions the integrity of the electoral system and its process, including the validity of a particular election and its return. For this reason, public interest requires that corrupt unscrupulous persons who manipulate the electoral system and its processes to assume leadership positions should not continue to hold such positions to the detriment of the country and its people. Viewed in that lens, it is also in the public interest to have it proceeded for trial so that witnesses can be called before a decision is made.
8. Turning to the allegations, allegation 3. 1 relates to the alleged bribery that occurred on 30^th March 2024 at Tatamba village. This involves Nathanial Tona, an agent of the First Respondent, gave a solar battery with light to Elsie Fane with an intent of influencing her to vote for the First Respondent. I have looked at the pleadings and the evidence in support. Unfortunately, there is no allegation in the pleadings and in evidence to show that the First Respondent in fact knew or authorised the giving of the solar battery and the light to Fane. The connection or nexus to impute the First Respondent’s culpability to this allegation was not established in the pleadings or even in the evidence before this Court. This results in the insufficiency of pleadings which prohibits the drawing of adverse inference against the First Respondent. This aspect of case was explained in Maneka v Bosawai [2024] SBHC 73, where Bird J stated [paragraph 47]:
   • “Allegations 11 to 13 are against the conduct of Mr Luke Mae. He was an alleged agent for Dr Bosawai. He was alleged to have given $100.00 each to Father Jeremiah Suburua and Ms Mary Talungaho with intent to induce them to vote for Dr Bosawai. In relation to these grounds there is also no evidence that Mr Mae is an agent of Dr Bosawai. There is no evidence that the money gifted was to induce them to vote for Dr Bosawai. If there was any words uttered by Mr Mae, there is no evidence to show that there was any corrupt arrangement between Dr Bosawai and Mr Mae. The words uttered could not support the allegation of corrupt practise of bribery.”
9. Also, in Lusibaea v Filualea [2020] SBHC 28, Higgins J (as he then was) when considering a bribery allegation said to have committed by an agent of the candidate, correctly echoed [page 10]:
   • “The next allegation is that during the voyage to Auki, Mr Kona gave the deponent $100 for “Smoke” and urged him to vote for the 1^st Respondent. If proved, that would be a classic situation of bribery but, even if so, there is no available inference that can be drawn with the requisite degree of certainty the 1^st Respondent knew of or authorised this payment, particularly as it arose, apparently spontaneously, during the voyage.”
10. The pleadings alleging this ground lack a cause of action against the First Respondent. The allegation is fundamentally insufficient and inherently weak. Therefore, it is pointless to preserve this ground for trial. Even if the alleged corrupt or illegal practice is said to have committed by Tona, as the agent of the First Respondent pursuant to section 108 (6) of the Electoral (Amendment) Act 2023, it still suffers a significant defect of insufficient particularisation of the pleadings in light of subsection 7 of the Electoral (Amendment) Act 2023. That is, it is not shown or demonstrated in the pleadings and evidence that the corrupt or illegal practice of Tona had prevailed extensively so much so that it may be considered to have affected the result of the election. The evidence of Elsie Fane, Elizabeth Leamana and Ruth Tavihi, supportive of this ground also suffers the same fate. This allegation or ground 3.1 must be struck out.
11. Allegation 3.2 concerns the alleged illegal campaign by the First Respondent to voters on 17^th April 2024 at Ole village. That involves the First Respondent performing greetings, welcoming and feeding of people going to vote at Ole polling station. The combined acts of greetings, welcoming and feeding of voters on the day of voting (either before they go to cast their votes or immediately after voting), is an introduced practice. It must be critically considered in the context of Solomon Islands where luring or influencing of people to vote is unpredictable and varies in form.
12. Section 124 of the Electoral Act 2018 makes it plain clear that no campaigning activity shall take place outside the permitted period. The voting day of 17^th April 2024 is sanctioned by law to be a day for voting alone. Hence, it is prohibited for all forms of election campaigns throughout Solomon Islands. The reference of the date of 17^th April 2024 in the allegation, an issue taken by the First Respondent, for this ground is therefore sufficient and any contrary argument must be rejected.
13. Section 5 of the Electoral Act 2018 defines campaigning activity as follows:
    • (1) A “campaign activity” is any activity that is intended, calculated or likely to:
    • (a) affect the result of an election; or
    • (2) influence an elector in relation to the casting of his or her vote at an election.
    • (a) Without limiting subsection (1), a campaign activity may be any of the following:
    • (b) conducting a demonstration or procession;
    • (c) making or publishing a statement, speech or advertisement;
    • (d) conducting a public opinion poll;
    • (e) distributing anything (including a document that imitates a ballot paper) that has on it:
    • (i) the names of candidates and any direction or indication as to the candidate a person should vote for; or
    • (ii) anything else intended, calculated or likely to influence a person’s vote;
    • (e) displaying the name of a candidate or political party, emblem, slogan, logo or symbol;
    • (f) distributing ribbons, streamers, rosettes, or items of a similar nature in a candidate’s or political party’s colours;
    • (g) making oral representations to a person.
    • (3) However, the following are not campaign activities:
    • (a) broadcasting or publishing an advertisement as a community service, other than an advertisement broadcast or published by or on behalf of a candidate or political party;
    • (b) broadcasting or publishing news in relation to an election by a news organisation.”
14. While the First Respondent argues that the described conducts are not provided under section 5 of the Act, this argument overlooks the indication by counsel for the Petitioner that this ground can be amended to cure such defect. In any event, the full descriptions of the campaigning activity said to have done by the First Respondent on the 17^th April 2024 and whether the acts of ‘greetings, welcoming and feeding of voters on the voting day’ are acts intended, calculated or likely to influence a person’s vote, are matters to be given by the witnesses at trial. The evidence in the sworn statements should not be taken in isolation at this stage. It must follow that the allegation in ground 3.2 must proceed to trial.
15. The next set of allegations are in grounds 4.1 - 4.6 in the petition, all against the Second Respondent. The allegations relate to breaches, errors or omissions to section 122 (f), 98, 100, 100 (1) and 02 of the Electoral Act 2018. It can be reasoned from the case for the Petitioner that these errors or omissions are material to invalidate the outcome of the election result.
16. The Second Respondent relies on section 112 of the Electoral Act 2018, which states:
    • “(1) This section applies if it is established during a hearing of an election petition that, in relation the election concerned, there was:
    • (a) a failure to comply with the time required for doing anything under this Act; or
    • (b) an omission or irregularity in filling out a form required under this Act; or
    • (c) a lack of or defect in the appointment of an electoral official or polling or counting agent; or
    • (d) an absence of, or mistake or omission or breach of duty by, an electoral official before, during, or after polling.
    • (2) The Court must not declare the election invalid only because of the matter mentioned in subsection (1) if the Court is satisfied that:
    • (a) the registration of electors and the conduct of the election substantially complied with the Constitution, this Act and any other written law; and
    • (b) the matter mentioned in subsection (1) did not affect the result of the election.”
17. Section 112 of the Act relates to noncompliance with the provisions of the Act due to administrative errors, omissions or irregularities of the electoral officials or voters. This can occur before, during or after the election that do not affect the result of the election. These errors or omissions can be easily managed, rectified and decided by the electoral officials without resorting to court proceeding. Section 112 (2) is an exemption, for it recognises that omissions or errors regarding the conduct of the electoral process can be used as grounds to invalidate the election result if it is shown that they would affect the result of the election. Here, the Petitioner challenges the errors or omissions committed by the electoral officials in relation to the irregularity and incompleteness of the counting of all the ballot papers that eventually affected the result of the election for the Gao Bugotu constituency.
18. The Second Respondent argues that due to the failure of the Petitioner to name the electoral officials in the allegations and by his failure to report the complaint regarding the irregularity of the counting process to the electoral official as required under section 104 of the Electoral Act 2018, and further, due to the ambiguity in the pleadings on the exact nature of the breaches said to have committed by the Second Respondent, these grounds are unmeritorious and should be dismissed for disclosure of no cause of action.
19. I have earlier ruled that the opportunity for leave to amend the petition still exists. The failure to state the specific names of the party, is a matter that can be easily cured by amendment. It is only a cosmetic change that can be easily done and not one that goes to the core of the pleadings. The Petitioner under rule 33 (1) of the Electoral Act Petition Rules 2019 is entitled for amendment of the petition upon a proper application. To refuse granting the opportunity for the obvious and imminent amendment and preferred to have the matter prematurely defeated or dismissed on technical grounds at the very door step of justice in my view is inappropriate. It would seem to me as making it more and more difficult for Petitioners to proceed past the competency stage when that was not the intention of the legislature in the first place. For these reasons, I refuse to accept the Second Respondent’s submission to strike out the petition for the primary reason that this can be easily cured by amendment.
20. I have looked at grounds 4.1 - 4.6 in the petition. The most significant allegation is in relation to the failure to count the pre-poll ballots. This is significant or for use of better word, ‘serious omission or error’ which questions the integrity and completeness of the counting process, and the eventual outcome of the election result. There is evidence from at least three police officers, Moffat Tei, Florence Teiraru and Richard Bisset that showed they had voted during the prepoll in Honiara for the Gao Bugotu constituency but were not included in the counting. Only one vote was produced and counted for the pre-poll. Why the pre-poll ballots were not produced or included in the counting is unknown.
21. The pre-poll voting is part of the election process. The ballot papers casted at the pre-poll are ought to be included in the counting to determine the wining candidate. The failure to include the pre-poll ballots will render incomplete counting of all the ballot papers casted for the Gao Bugotu constituency. This in turns, has the potential to affect the result. This is a serious error or omission that needs to be investigated at trial. To strike out the petition in the light of the obvious omission to include the prepoll ballots would render the integrity of the electoral process and the democratic right of the people for Gao Bugotu constituency to participate in voting as enshrined in the Constitution into a total farce. Whether the omission or errors would affect the result of the election, is a matter that needs to be enquired into or subjected to judicial scrutiny at the trial.
22. Based on those reasons, it is my view that grounds 4.3 and 4.4 of the petition are preserved and will proceed for trial. These allegations, as said earlier, relate to the failure to include the prepoll ballots. The other grounds must be struck out accordingly. For they are matters that, in my view, as the pleadings and evidence revealed are insignificant to change the result of the election and ought to be remedied under section 104 of the Electoral Act 2018.
23. This case will proceed to trial without delay. Cost of this hearing will be costs to be in the cause.

Orders of the Court

1. The application to dismiss the petition is refused on grounds 3.2, 4.3 and 4.4.
2. Grounds 3.1, 4.1, 4.2, 4.5 and 4.6 are dismissed accordingly.
3. The costs of the hearing are costs in the cause.
4. Leave is granted for amendment of the remaining grounds of the petition, to be filed and served on the First and Second Respondents by 24^th September 2024.
5. The First and Second Respondents are to file and serve their defence (amended if any) by 1^st October 2024.
6. The Petitioner is to file and serve further sworn statements for use at trial by 8^th October 2024.
7. The First and Second Respondents are to file and serve sworn statements for use at trial by 29^th October 2024.
8. The Petitioner shall file and serve any sworn statements in reply by 5^th November 2024.
9. Thereafter, there shall be no further sworn statement to be filed by any party.
10. The Petitioner is to file and serve his List of Witness Sworn Statements for use at trial by 12^th November 2024.
11. The First and Second Respondents are to file and serve List of Witness Sworn Statements for use at trial and List of Witnesses required for Cross Examination by 18^th November 2024.
12. The Petitioner is to file his List of Witnesses required for Cross Examination by 20^th November 2024.
13. Any noncompliance with the Orders, unless extended by the leave of the Court, shall be a ground for any penalty to be imposed by the Court including costs or prohibition of materials to be filed and served.
14. Matter is listed for Pretrial Conference on 26^th November 2024 at 9:30am.
15. Costs in the cause.

THE COURT
Augustine S. Aulanga
PUISNE JUDGE