Koli v Tovosia [2024] SBHC 105; HCSI-CC 191 of 2024 (18 September 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Koli v Tovosia
Citation:
Date of decision:	18 September 2024
Parties:	Jessy Koli v Bradley Billy Tovosia, Noel Matea, Benedito Maneisu
Date of hearing:	4 September 2024
Court file number(s):	191 of 2024
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga; PJ
On appeal from:
Order:	1 The application to strike out the Further Amended Election Petition is refused on grounds 3.A, 3.B, 4.A, 5 and 6. 2 Ground 4.B is dismissed without trial. 3 Cost of this hearing will be cost in the cause.
Representation:	Mr G Suri for the Petitioner Mr W Rano for the First Respondent Mr B Pitry for the Second and Third Respondent
Catchwords:
Words and phrases:
Legislation cited:	Electoral Act Petition Rules 2019, r 24, r 6 (1), r 6 (1) (c), r9 (1) Electoral Act 2018 S 111 (1) (b), S 129, S 108 (5), S 120, 126 or 127, S 121 (a) Solomon Islands Courts (Civil Procedure) Rule 2007, r 9.75 Electoral (Amendment) Act 2023, S 108 (8), S 108 (7) (b)
Cases cited:	Salopuka v Panakitasi [2020] SBHC 72, Three Rivers District Council v Governor and Company of the Bank of England [2001] UKHL 16,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 191 of 2024

BETWEEN

JESSY KOLI
Petitioner

AND

BRADLEY BILLY TOVOSIA
First Respondent

AND:

NOEL MATEA
(Returning Officer for East Guadalcanal Constituency)
Second Respondent

AND:

BENEDITO MANEISU
(Presiding Officer)
Third Respondent

Date of Hearing: 4 September 2024
Date of Ruling: 18 September 2024

Mr G Suri for the Petitioner
Mr W Rano for the First Respondent
Mr B. Pitry for the Second and Third Respondent

RULING

AULANGA PJ

1. The Petitioner and the First Respondent were candidates in the general election in April 2024. The First Respondent was the successful candidate. He polled 3,551 votes while the Petitioner polled 1,829 votes. This is a significant margin of 1,722 votes the First Respondent received more than the Petitioner. The Petitioner disagrees with the election victory of the First Respondent and filed a petition, effectively challenging the validity of the election of the First Respondent as the elected and returned member for East Guadalcanal constituency.
2. The petition contains six grounds of allegations of corrupt and illegal practices under the Electoral Act 2018. Two of the grounds, itemised as 3.A and 3.B involving bribery allegations; two of undue influence, itemised as 4.A and 4.B and the remaining two grounds, itemised 5 and 6, relate to interfering with voting, and for illegal practice of production, distribution, display and publication of false material. Only one allegation against the Second and Third Respondents, that is allegation itemised 5, that relates to the interfering with voting, said to have occurred during the polling day.
3. All the Respondents apply to strike out the Further Amended Petition on the grounds that it is frivolous, vexatious, an abuse of the court process and does not disclose a reasonable cause of action to warrant the case progressing to trial. It is the case for all the Respondents that based on those stated grounds, the petition should be struck out accordingly, with costs.
4. The application to strike out is based on rule 24 of the Electoral Act Petition Rules 2019, section 111 (1) (b) of the Electoral Act 2018 and rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007.
5. 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 trial. For this case, all the parties have decided for the Court to make that finding through hearing, an option available to the Court.
6. The application essentially raises two main issues for me to determine. First; whether the petition discloses a cause of action and second, whether the petition is frivolous, vexatious and an abuse of the process of the court. It must be understood that whether or not the petition discloses a cause of action or is frivolous and vexatious, is a judicial finding that has to be based on the examination of the pleadings with the facts in support.
7. Rule 6 (1) of the Electoral Act Petition Rules 2019 gives a convenient outline of what ought to be included in the election petition. Accordingly, it states:
   • “6. (1) An election petition shall—
   • (a) state the right of the petitioner to petition;
   • (b) state the holding and result of the election;
   • (c) briefly state the facts and grounds relied on to sustain the orders sought;
   • (d) include a statement of: the address within the jurisdiction for service of the petitioner; and, the contact details of the petitioner, or of his advocate or agent;
   • (e) clearly identify the respondent or respondents to the petition together with their usual or last known address.
   • (2) The petition shall be divided into paragraphs each of which shall be confined to a distinct portion of the subject matter of the petition and each paragraph shall be numbered consecutively.
   • (3) The petition shall conclude with the orders sought, for example, that some specified person should be declared duly returned or elected or that the vote shall be recounted or that the election should be declared void or that a return may be enforced (as the case may be).
   • (4) The petition shall be signed by all the petitioners. “
8. In terms of ascertaining whether the petition discloses a cause of action, the pleadings must demonstrate the legal ingredients or the element of the claim and the facts that support each element of the claim. The Petitioner must outline the allegations in the claim and demonstrate that it has a clear legal basis. If the allegations in the petition contain that, there is a reasonable cause of action. If not, it does not disclose a cause of action. The Petitioner does not have to state every evidence of the facts being alleged. This is reflected and reinforced in Rule 6 (1) (c) of the Electoral Act Petition Rules 2019. This is well explained in Salopuka v Panakitasi [2020] SBHC 72 where CJ Palmer said [para 78-79]:
   • “78. The function of pleadings is not merely to define the cause of action, which is, that a promise, offer, or gift was 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.
   • 79. By failing to do that, the pleadings amounted to nothing more than what can be deduced by necessary implication or inference, and is unacceptable. When assessed in that light, the facts pleaded are simply insufficient.”
9. There is no issue regarding the correct reference to the relevant sections of the corrupt and illegal practices under the Electoral Act 2018. The main contention of the Respondents is the insufficiency of the pleadings to the facts regarding the allegations and the lack of cogent proof of evidence to support the allegations which render the entire petition without a cause of action. In their collective views, the Court should also examine the evidence as the basis to determine the cause of action in each of the allegation. This submission is not entirely correct as per rule 9 (1) of the Electoral Act Petition Rules 2019 which states:
   • “9. (1) Evidence in support of a petition need not be stated in the petition but the Court may order such particulars as may be necessary to prevent surprise or unnecessary expense to the parties and to ensure a fair and effectual trial of the petition.”
10. At the outset, counsel for the First Respondent made submissions for automatic dismissal of the allegations itemised 5 and 6, on the grounds that they are not allegations of fraudulent voting, bribery and undue influence to invalidate the election result as recognised under section 129 of the Electoral Act 2018. As such, it is pointless for the Court to try those two allegations since at the end of the day, the relief to invalidate the election result will not be achieved.
11. Section 129 of the Act provides for the effect of certain offences, as follows:
    • “129 (1) This section applies if a person is convicted of an offence against any of the following:
    • (a) section 120 (fraudulent voting);
    • (b) section 126 (election bribery);
    • (c) section 127 (undue influence).
    • (2) The person is disqualified for 5 years from the date of the conviction:
    • (a) from being registered as an elector; or
    • (b) from voting at an election; or
    • (c) from being elected as a member of Parliament.”
12. In my view, section 129 above relates simply to disqualification following criminal conviction. It requires a conviction which is different from petition brought by civil proceeding. Section 108 (5) of the Act provides for that situation. What it entails is, a person who had been convicted of an offence under sections 120, 126 or 127, is disqualified for 5 years. So far as section 120, 126 and 127 of the Act are concerned, they create offences. With the Electoral (Amendment) Act 2023, it now clarifies that section 108 (6) obliges the Court to declare the election void if a corrupt or illegal practice was committed in connection with the candidate elected or that person’s agent. Therefore, the allegations in this proceeding, based on the various sections of the Act, are the legal basis to determine whether the acts are corrupt or illegal practices to declare the election of the candidate void. Hence, the submission that only the allegations specified in section 129 of the Act are the ones to invalid the election result of a candidate in my view is erroneous.
13. The first allegation relates to an alleged bribery that occurred on 7^th April 2024 at Koilobisi village where an agent of the First Respondent distributed bags of rice to voters including Samuel Noris, and made promise that the First Respondent would provide projects to those who receive the bags of rice. Whilst the Respondents made submissions that the facts pleaded for this ground are ambiguous and insufficient, in my view, the facts are sufficient to warrant the matter proceeding to trial. The question of who gave the bags of rice and for what purpose, in my view needs to be investigated at the trial. The number of bags distributed, the purported utterance of Jerry Louis that projects would be awarded to the people who voted for the First Respondent and whether these would influence their decision on voting, are matters to be given in evidence by the witnesses at trial. The sworn statements and facts in the pleadings should not be taken in isolation to predispose this ground without trial. This ground will proceed to trial.
14. The second ground involves the First Respondent giving $50 to Bladina Hellen on 14^th April 2024 along Vila/Haimaro road and asked her to vote for him. This was witnessed by other persons. The First Respondent indicated mounting an alibi defence to this allegation. Whilst it is up to the First Respondent to prepare his defence, the defence of alibi itself indicates the need not to strike out this ground. It requires the Court to have that defence tested at trial. This is to allow the First Respondent to lead some evidence of the asserted alibi so that the Petitioner may have the opportunity to test the defence. In any event, whether or not that defence is invented can only be discovered at trial and not on sworn statements. Hence, it makes little sense to strike out this ground.
15. The third ground of allegation involves undue influence that occurred on 3^rd April 2024 at Karukaru village where Jerry Sabino, an agent of the First Respondent, threatened the people of Pachahila by telling them to vote for the First Respondent otherwise ex-militants would kill them. There is evidence that Sabino is the agent of the First Respondent. This satisfies section 108 (8) of the Electoral (Amendment) Act 2023.
16. I have looked at the evidence and noted that the threat uttered by Sabino was made to a big crowd of villagers. It was repeated while in the company of likeminded supporters of the First Respondent. As a result of fear, a village chief had to advise his people to vote for the First Respondent. The allegation reflects an extensive undue influence and one that is capable in magnitude of influencing the decision of Pachahila villagers to vote in a particular way. This is recognised in section 108 (7) (b) of the Electoral (Amendment) Act 2023. The evidence from the village chief and the reason for the advice he made to his people to vote for the First Respondent as a result of the threat must be investigated at trial. The First Respondent’s contrary submission to strike out this ground must be rejected. This is not a clear case that I will strike out this ground and for that reason, it must proceed for trial.
17. The fourth allegation relates to undue influence that occurred on 11^th April 2024 at Tabunahabu village where Alphonse Toghovotu, an agent of the First Respondent, made verbal threats for the people of Tabunahabu village to vote for the First Respondent or he would kill them. To determine a cause of action for this ground and as highlighted in Three Rivers District Council v Governor and Company of the Bank of England [2001] UKHL 16; [2001] 2 ALL ER 513, a case cited by counsel Suri for the Petitioner that recognises the evidence in sworn statements as forming part of the party’s case, I have the opportunity to look at the sworn statement of Celestine Pitu and Serevasio Bualechai, relied on by the Petitioner. In my view, there is nothing worth in their sworn statements to say that the undue influence was extensive in nature so much so as to influence the decision of the villagers to vote for the First Respondent. It would appear as a one-off incident which is insufficient to meet the threshold of whether the conduct was extensive that it “may be reasonably supposed to have affected the result” of the election as required by section 108 (7) (b) of the Electoral (Amendment) Act 2023. In any event, the pleadings and evidence in support of this ground are inherently insufficient to establish a cause of action against the First Respondent. The petition was further amended and ample opportunity to improve this ground had been afforded and gone. In light of the reasons held, this ground must be dismissed.
18. In relation to the fifth ground that involves interfering with the vote, the Second and Third Respondents submit the Petitioner has failed to plead the vulnerability of the voter said to be illegally interfered with during voting by the electoral officials. That failure renders the pleadings insufficient for them to make a proper defence, which must be resulted in the ground ought to be struck out.
19. Section 121 (a) of the Electoral Act 2018 provides:
    • “121 (a) A person commits an offence if the person, without lawful authority:
    • (a) interferes with an elector who is casting his or her vote;”
20. While the submission of the First and Second Respondents raises the insufficiency of facts in the pleadings to sustain a cause of action for this ground, that overlooks the evidence of Maria Tatamatena, Eddie Leu and Edwin Ninialu, supportive of this ground. Those sworn statements had already been disclosed to the Respondents in good time. What is important to note is, the legal ingredients or elements with supporting facts of the illegal practice of interfering with free voting of the voter (Tatamatena) has been pleaded in the petition. The cause of action has been clearly defined and established. In any event, the evidence why the voter needed the assistance of the electoral officers at the material time, are matters ought to be given at trial. Whether this vulnerability needs to be proved, is a matter that will be investigated at trial. The submission to dismiss this ground must be rejected.
21. The final allegation relates to the illegal practice of production, distribution, display and publication of false materials, said to have done by the First Respondent and his agents. In the allegation, the First Respondent’s ballot paper posters were unfairly enlarged and significantly diminished the name, image and symbol of other candidates, namely Andrew Tahisihaka and Sampson Tahuniara. In fact, it has partially concealed their names.
22. It is conceded by the First Respondent in his draft defence that the enlarged posters were made by his campaign team and not from the Electoral Commission. The materials were made and distributed purposely to differentiate the name, picture and party symbol of the First Respondent from the rest of the candidates. This is for the election campaign to promote the First Respondent’s candidacy and to lure prospective voters and supporters from East Guadalcanal constituency.
23. There is no issue that the enlarged posters were not issued or authorised for use by the Commission, the CEO or the electoral officials. As conceded, they were made by the First Respondent’s agents or campaign team. The allegation was brought under section 123 of the Act that provides:
    • “123 (a) the person displays, publishes or distributes material (or causes material to be displayed, published or distributed), and
    • (b) the material falsely appears to have been issued by the Commission, the CEO or an electoral official.”
24. The question of the falsity of the posters and whether the enlarged posters appear to have been issued by the rightful electoral authority in Solomon Islands, and whether the posters may have the potential of affecting the election result, are matters that will be investigated at trial. Evidence should be heard to determine this ground and so the sworn statements and the pleadings should not be taken into isolation. It is therefore improper for the Court to put wight on the sworn statements when evidence for this ground is yet to be called at trial. This ground will proceed to trial.
25. Based on those reasons, the application to strike out the Further Amended Election Petition is refused on grounds 3.A, 3.B, 4.A, 5 and 6. In my view, they have sufficiently disclosed a cause of action to warrant the grounds proceeding to trial. Only ground 4.B is dismissed without trial. Cost of this hearing will be cost in the cause.

Orders of the Court

1. The application to strike out the Further Amended Election Petition is refused on grounds 3.A, 3.B, 4.A, 5 and 6.
2. Ground 4.B is dismissed without trial.
3. Cost of this hearing will be cost in the cause.

THE COURT
Augustine S. Aulanga
PUISNE JUDGE