Maneka v Bosawai [2024] SBHC 73; HCSI-CC 171 of 2024 (29 July 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Maneka v Bosawai
Citation:
Date of decision:	29 July 2024
Parties:	Samson Maneka v Paul Bosawai, Attorney General
Date of hearing:	23 July 2024
Court file number(s):	171 of 2024
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	The effect of the courts’ ruling therefore is that the petition by Mr Maneka filed on 27 May 2024 is hereby struck out on the basis that it has not been duly served on Dr Bosawai. It is also struck out because the petition had failed to disclose any reasonable cause of action and is an abuse of the process of the court. I order cost against Mr Maneka. I hereby order accordingly. I direct that a certificate confirming the validity of the election of Hon Dr Paul Popora Bosawai as the duly elected candidate for the North Guadalcanal Constituency is to be issued to (i) the Governor General, (ii) the Speaker of the National Parliament and (iii) the Electoral Commission.
Representation:	Mr Billy Titiulu for the Petitioner Mr McChesney Ale for the First Respondent Mr Allan Harara for the Second Respondent
Catchwords:
Words and phrases:
Legislation cited:	Election Act Petition Rules 2019, r16, r51, Electoral Act 2018 S 126, S 127
Cases cited:	Fakani v Abana [2016] SBHC 4, Salopuka v Panakitasi [2020] SBHC 72

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 171 of 2024

BETWEEN

SAMSON MANEKA
Petitioner

AND:

PAUL BOSAWAI
First Respondent

AND:

ATTORNEY GENERAL
(Representing Returning Officer for North Guadalcanal Constituency)
Second Respondent

Date of Hearing: 23 July 2024
Date of Decision: 29 July 2024

Mr Billy Titiulu for the Petitioner
Mr McChesney Ale for the First Respondent
Mr Allan Harara for the Second Respondent

RULING

Bird PJ:

1. This country went to the polls on 17 April 2024. Mr Samson Maneka and Dr Paul Popora Bosawai were two of the eight candidates for the North Guadalcanal Constituency. On 20 April 2024, the Returning Officer for the North Guadalcanal Constituency declared the polling results. He further declared that Dr Bosawai has been duly elected as member of the North Guadalcanal Constituency. He polled 2,607 votes. Mr Maneka polled 2,397. The difference in votes was 210.
2. Mr Maneka now comes to this court complaining that Dr Bosawai’s victory against him was based on corrupt practise of bribery and undue influence. Amongst other orders, Mr Maneka asks this court to declare that the election of Dr Bosawai as a Member of Parliament for North Guadalcanal Constituency is null and void.
3. Two distinct applications were filed in this proceeding. Dr Bosawai filed an application to strike out the petition. An amended application to strike was subsequently filed. Mr Maneka also filed an application. His application is for enlargement of time for service and for this court to rule that service done on Dr Bosawai of the Petition and Notice of Nature of Security is valid.
4. The application of Dr Bosawai is based upon three grounds. The grounds are as follows;
   1. The Petition of Mr Maneka was ineffective because it was not personally served and that it was served after the 14 days prescribed period had lapsed;
   2. The Petition is incompetent and defective because it does not disclose any reasonable cause of action; and
   3. The Petition is frivolous, vexatious and an abuse of the process of the court.
5. The application by Mr Maneka is a response to the issue raised in paragraph 4 (i) above. He is seeking enlargement of time for service of the Petition and the Notice of Nature of Security on Dr Bosawai. It is conceded by Mr Maneka that prior service on Dr Bosawai of the Petition and Notice of Nature of Security is not effective and he also conceded that service on Dr Bosawai in the precinct of the National Parliament Building is a breach of parliamentary privileges.
6. The issues that I must determine in both applications are the following:
   1. Was the Petition and Notice of Nature of Security allegedly served outside of the prescribed period of 14 days?
   2. Should I enlarge time for service of the Petition and Notice of Nature of Security?
   3. Does the Petition disclose a reasonable cause of action?
   4. Is the Petition frivolous, vexatious and an abuse of the process of the court?

Issue (i)

7. Rule 16 of the Election Act Petition Rules 2019 (EAPR) provides that the Petition and Notice of Nature of Security shall be served upon the respondent (s), within 14 days inclusive of the day of filing.
8. Mr Maneka filed his Petition and Notice of Nature of Security on 27 May 2024. The Petition and Notice of Nature of Security were purportedly served on Dr Bosawai on 10 June 2024 at the National Parliament Building, Honiara. The Attorney General was also served with the Petition and Notice of Nature of Security on the same date. Dr Bosawai and the Attorney General were both served by Mr Billy Titiulu, counsel for Mr Maneka. The sworn statement of Mr Titiulu filed on 12 June 2024 deposed to these facts. These facts are not disputed by Dr Bosawai and the Attorney General.
9. From those facts, 27 May 2024 was the filing date. The final day allowed for service of the documents on the Respondents in accordance with the law, should have been 9 June 2024. By 10 June 2024, when both respondents were served by Mr Titiulu, the time allowed for service under rule 16 has lapsed.
10. Dr Bosawai alleges that the Petition and the Notice of Nature of Security were served on him outside of the time limited for service. That is conceded by Mr Maneka. That very fact has led him to file an application for enlargement of time.
11. Dr Bosawai further alleges that service on him in the precinct of the National Parliament Building was ineffective. It is a breach of the Prescription of Parliamentary Privileges, Immunities and Powers Act 2007. Mr Titiulu of counsel also conceded that argument.
12. With Mr Titiulu’s concession and upon perusing the Act and paragraph 15 of the court’s ruling dated 26 January 2016 in the case between Silas Fakani v Honourable Steven Abana [2016] SBHC 4; HCSI-CC 343 of 2013, service of court documents on a Member of Parliament in the precincts of the National Parliament Building is an irregularity. It matters not whether or not the Parliament is in session.
13. Having discussed issue (i), I am satisfied that the Petition and Notice of Nature of Security was served outside of the time prescribed by rule 16 of the EAPR 2019. I can also hold that service on the Attorney General by Mr Titiulu on 10 June 2024 is also not valid and is ineffective.
14. On the issue of the irregularity of service on Dr Bosawai in the precincts of the National Parliament Building, I have noted that Wilson Rano of Rano & Company was appointed by notice filed on 19 June 2024. His original application to strike was filed on 20 June 2024. Dr Bosawai had through his conduct in filing his application to strike the very next day, showed a clear intention on his part that he takes issue over irregularity of service on himself. I can also hold that service on him in the precincts of the National Parliament Building by Mr Titiulu on 10 June 2024 is an irregularity and is ineffective. Consequently, the documents were never served on him. The first ground enunciated in Dr Bosawai’s application is hereby allowed.

Issues (ii)

15. In light of my ruling in issue (i), I must now determine issue (ii). Mr Maneka seeks enlargement of time for service of the Petition and the Notice of Nature of Security on Dr Bosawai under rule 51 of the EAPR 2019.
16. In his sworn statement filed on 13 June 2024, Mr Maneka gave reasons about his attempts to serve the Petition and the Notice of Nature of Security on Dr Bosawai. He stated that after filing, he was busy with others issues. He has to make arrangements to send voters back to their respective villages. He also stated that the first attempt made to effect service on the Dr Bosawai was 5 June 2024. It was only then that he found out that Dr Bosawai had travelled overseas. He would return to the country on 9 June 2024. It is worth noting that 5 June 2024 is the tenth day after filing. By that date, Mr Maneka only has four days left to effect service on both Respondents.
17. Upon having had information that Dr Bosawai was out of the country, Mr Maneka made no other alternative arrangement to effect service on him. He waited until Monday 10 June 2024 and instructed his lawyer to effect service. By that time, the 14 days limited to effect service had already lapsed.
18. Rule 51 0f the EAPR 2019 gives me discretion to enlarge time for service of Petition and Notice of Nature of Security. That discretion can only be exercised upon good cause being shown by an applicant. In this case, Mr Maneka must show good cause why I should exercise that discretion in his favour. It must be noted that a mere existence of good cause does not imply the time limit will be enlarged. What must be borne in mind is that Mr Maneka must file materials and evidence in court to assist me to determine good cause.
19. His sworn statement filed on 13 June 2024 contained the reasons for his inability to effect service on Dr Bosawai. He was busy with other issues including sending his voters back to their respective villages. These issues had taken him about 10 days to complete. That period of time has taken up the most part of the 14 days service requirement. The first and only real attempt made by Mr Maneka to effect service on Dr Bosawai was on 5 June 2024.
20. The evidence of Dr Bosawai on this issue is that his place of residence is known to Mr Maneka. He also runs a private clinic close by and service could have been effected on him at that clinic. He is a Minister of the Crown and has an office in Honiara. Service could also be carried out at his office. His residence and that of Mr Maneka’s are quite close to each other and located within the North Guadalcanal Constituency. These various options were not even considered by Mr Maneka to effect service on Dr Bosawai during the first 9 days.
21. Having discussed the respective positions of Mr Maneka and Dr Bosawai, I must therefore consider whether or not Mr Maneka had shown good cause to entitle me to invoke my discretion under r. 51. In order for me to determine good cause, the reasons given by the applicant must be adequate, proper and valid. I am able to get assistance from the cases cited by Mr Ale and Mr Titiulu on what is adequate, proper and valid.
22. The evidence of Mr Maneka on this issue is he was busy with other matters. His first ever attempt to effect service was on 5 June 2024. He could have effect service on Dr Bosawai at his residence which was close by. He could also have effect service on Dr Bosawai at his private clinic or at his office in Honiara. He is a Minister of the Crown and has his own office in Honiara. It would not have taken him 10 days to effect service on Dr Bosawai but only a few hours. He could also have instructed his lawyer to effect service on Dr Bosawai at his office in Honiara. Those options were not even utilised by Mr Maneka or his lawyer during the first 9 days subsequent to filing. They both sat on the documents, doing absolutely nothing from 27 May 2024 to 4 June 2024.
23. From his own evidence, it is obvious that he left the issue of service in abeyance until all his personal issues were sorted. It can also be seen from his evidence that he did not prioritise this case. For the first 9 days he did absolutely nothing about it.
24. Having considered the evidence from both parties, together with r. 51 of the EAPR 2019 and the cases cited, I am able to hold that Mr Maneka has failed to demonstrate good cause in his evidence to support his application. The reasons outlined in his sworn statement are not adequate, proper and valid. I am therefore unable to exercise my discretion under r. 51 in favour of Mr Maneka. I hereby refuse his application for enlargement of time. Having decided on issues (i) and (ii) above, the application for enlargement of time by Mr Maneka is refused, consequently his Petition and Notice of Nature of Security filed on 27 May 2024 is ineffective and it has never been served on Dr Bosawai. The Petition should be dismissed in contravention of r. 16 of the EAPR 2019.

Issues (iii) & (iv)

25. Dr Bosawai further alleges that the Petition filed by Mr Maneka on 27 May 2024 does not disclose a reasonable cause of action. It is frivolous and vexatious and is an abuse of the court’s process. The Petition should be struck out.

Case for Mr Maneka

26. The allegations against Dr Bosawai in the filed Petition are those contained in paragraph 5 of the Petition. First is it is alleged that Dr Bosawai is guilty of corrupt practise of bribery, before the election contrary to section 126 of the Electoral Act 2018. Secondly is that he is guilty of undue influence before the election contrary to section 127 of the said Act.
27. By paragraph 6 of the Petition, it is also alleged by Mr Maneka that by reason of the matters pleaded in his petition, Dr Bosawai was and is incapacitated from serving in Parliament and the said election and return of Dr Bosawai is void. It follows thereon that the first relief sought is for this court to declare that the election of Dr Bosawai as a Member of Parliament for North Guadalcanal Constituency is null and void.
28. Mr Maneka had not only filed his petition but had gone further to file sworn statements from witnesses whom he had intended to call during trial. All of the sworn statements filed in support of his petition are in relation to the allegations of corrupt practises and undue influence.
29. So basically the case for Mr Maneka is obvious from paragraphs 5, 6 and 7 (1) of his petition. He says Dr Bosawai is guilty of corrupt practise of bribery and of undue influence. His pleading in the stated paragraphs is based upon the notion and essence of the guilt of Dr Bosawai.
30. In his first allegation of bribery, Mr Maneka alleges that on 25 March 2024, between 8 to 9am, a market stall owned by Robert Mantesonia Ruana at the Black Post/Tina Road junction was damaged and Dr Bosawai gave him $1,000.00 with intent to induce Mr Ruana to vote for him. The sworn statement of Mr Ruana was filed in support.
31. The 2^nd and 3^rd allegations of bribery are pleaded in Schedule 1 paragraphs 2 and 3. They both occurred on 15 April 2024 at Holy Trinity Church at Baravule. Dr Bosawai was alleged to have given $100.00 to Robert Gwea with intent to induce Mr Gwea to vote for him. The $100.00 given was also for Mr Gwea to induce and influence one Ravson Roboliu to vote for him. Mr Gwea and Mr Roboliu had filed sworn statements in relation to these allegations.
32. The 4^th, 5^th, 6^th, 7^th, 8^th, 9^th and 10^th allegations are contained in Schedule 1, paragraphs 4 to 10 of the petition. It is alleged that on 14 April 2024 at GPPOL 2, one Agnes Poru, an agent of Dr Bosawai gave $50.00 to Ravson Roboliu with intent to induce him to vote for Dr Bosawai. She gave six bottles of Saratonga Whiskey to Robert Gwea with intent to induce him to vote for Dr Bosawai. She also gave 6 bottles of Saratonga Whiskey to Mr Gwea with intent to induce him to influence Mozard Akwai, Samo Kwadi, Derick Huapa, Mary Jeffrey and Roselyn Kofete to vote for Dr Bosawai.
33. There is also allegation that the said Ms Poru gave a packet of white Bro cigarette to Mr Roboliu to induce him to vote for Dr Bosawai, 6 Saratonga Whiskey to Jeffrey Laungania for him to induce Mary Jeffrey to vote for Dr Bosawai. The sworn statements of Mr Kwadi, Ms Kofete, Mr Laungania, Mr Akwai, Ms Jeffrey, Mr Roboliu and Mr Gwea were filed in support of these allegations.
34. Allegations 11, 12 and 13 alleges that on 27 March 2024, one Luke Mae, an agent of Dr Bosawai gave to Father Jeremiah Saburua $100.00 and 2 x solbrew canoe beers and also gave to Mary Talungaho $100.00 to induce them to vote for Dr Bosawai. The sworn statements of Father Saburua and Ms. Talungaho were filed in support. Words to the effect ‘are you going to follow me?’ were allegedly uttered by Mr Mae.
35. Allegation 14 claims that on 16 April 2024, one Paul Koe (aka Paul Kae) an agent of Dr. Bosawai gave him $120.00 to induce him to vote for Dr Bosawai. Also on 16 April 2024, Pastor James Ngelea, an agent of Dr Bosawai gave to Milton Bale $120.00 to induce him to vote for the said Dr Bosawai. All kinds of words were allegedly spoken by so-called agents of Dr Bosawai in the various sworn statements filed in support.
36. The allegation of undue influence is contained in Schedule 2 of the petition. It relates to the incident on 24 March 2024. It is alleged that one David Baraso, an agent and supporter of Dr Bosawai, had intimidated and threatened the said Robert Mantesonia Ruana to influence him to vote for Dr Bosawai. He uttered the words ‘fuck you and Samson Maneka’s banner, we need change, vote for Dr Paul’. The sworn statement of Mr Ruana is also relied upon in respect of this allegation.

Case for Dr Bosawai

37. It is the position of Dr Bosawai that paragraph 5 of the petition invokes this court’s criminal jurisdiction. An election petition is a civil matter and this court sits to hear and determine petitions in its civil jurisdiction. The two jurisdictions are distinct and should not and cannot merge. So when an election petition alleges guilt on allegation of bribery and undue influence, it is no longer a civil suit but is criminal in nature. This court therefore do not have jurisdiction to deal with the petition. Consequently, there is no reasonable cause of action in the civil sense and the filed petition is frivolous and vexatious and an abuse of the process of the court.
38. In dealing with the various allegations of bribery and undue influence contained in Schedules 1 and 2 of the petition, it is the case for Dr Bosawai that these are all mere allegations. The pleadings do not particularise how the benefit was given with the intent to induce and how any corrupt arrangements were made between Dr Bosawai and his alleged agents and supporters. There is no evidence connecting Dr Bosawai with the agents namely Mr David Baraso, Ms Agnes Poru, Mr Luke Mae, Mr Paul Koe (aka Paul Kae) and Pastor James Ngelea. There is no evidence about their appointment as agents. In the absence of any connection of a corrupt nature, the allegations as pleaded in Schedules 1 and 2 could not have succeeded even at trial. They must be struck out.
39. The case of Salopuka v Panakitasi [2020] SBHC-CC 280 of 2019 was referred to by counsel for Dr Bosawai. In that case, statements of alleged promises by the respondent and or his alleged agents do not constitute bribery. So the alleged words uttered by Mr David Baraso, Ms Agnes Poru, Mr Luke Mae, Mr Paul Koe (aka Paul Kae) and Pastor James Ngelea also cannot and do not constitute bribery. The alleged actions of Mr Baraso also could not constitute undue influence.

Discussion

40. I have noted all of the arguments for and against issues (iii) and (iv). Suffice to say that all of the sworn statements of possible witnesses of Mr Maneka did not state in their respective sworn statements that they have voted for Dr Bosawai during the last election because their will were so overborne by the allegations that they have claimed to have occurred to them.
41. It is also essential to note the wordings of sections 126 and 127 of the EA 2018. Section 126 talks about election bribery and s. 127 talks about undue influence. The two sections have fallen short of a finding of guilt of a respondent and by his/her agent (s) because of its civil jurisdiction. So when a petition alleges guilt on the part of a respondent, the petition has departed from a civil suit to that of a criminal allegation. That is one of the reason why Dr Bosawai has filed an application to strike out Mr Maneka’s petition.
42. In the Salopuka case, Chief Justice Sir Palmer made a distinction between the courts civil and criminal jurisdictions. Being a civil suit, pleadings in an election petition must conform with civil rules. When a petitioner pleads in an election petition that a respondent is guilty of bribery or undue influence, that has transgressed the civil jurisdiction of the court. That was one of the reasons why the petition of Mr Salopuka was dismissed at an interlocutory stage.
43. In this case, Mr Maneka in paragraphs 5, 6 and 7 (1) of his petition had asserted guilt on the part of Dr Bosawai of corrupt practise of bribery and undue influence. That is not a correct legal basis of seeking this courts powers to declare the election and return of Dr Bosawai void.
44. The various allegations in Schedule 1 and 2 of Mr Maneka’s Petition are noted by this court. In respect of the first allegation, it is alleged that Dr Bosawai gave to Mr Ruana $1000.00 with intent to induce him to vote the doctor. In paragraphs 29 and 31of his sworn statement, he said Dr Paul called to see him and gave him $1000.00 saying ‘here is money, take it so that I can pass freely infront of your eyes and your shop’. That was exactly the purpose of giving money to Mr Ruana, so that he can pass freely infront of Mr Ruana’s eyes and his shop. There is no evidence that the money given was to induce him to vote for the doctor. That ground is strike out. It does not disclose a reasonable cause of action.
45. In relation to the allegations contained in paragraph 31 above, Dr Bosawai was alleged to have given $100.00 to Mr Robert Gwea to induce him to vote for Dr Bosawai. The $100.00 was also for Mr Gwea with intent to influence Ravson Roboliu to vote for Dr Bosawai. In his own sworn statement, Mr Gwea stated that Dr Bosawai gave him $100.00 to share with Mr Roboliu. He asked where he was from and further asked for a voters list from Russell. He did not give the voters list to Dr Bosawai. There was nothing stated in the sworn statement that could have amounted to an intent to induce both Mr Gwea and Mr Roboliu. Those grounds cannot be sustained in the pleading and the filed sworn statements and are therefore struck out for the same reason.
46. Allegations 4 to 10 of Schedule 1 of Mr Maneka’s Petition contained alleged corrupt practise of bribery by Ms Agnes Poru who was claimed to be an agent of Dr Bosawai. Ms Poru was alleged to have given money, Saratoga Whiskey Beers and cigarettes to Mr Gwea to induce him to vote for Dr Bosawai. The money, Saratoga Whiskey Beers and cigarettes were also given to him with intent to induce Mr Gwea to influence others to vote for Dr Bosawai. Apart from saying that Ms Poru gave these gifts to induce him and to influence others, his evidence did not go further to discuss how he knew Ms Poru was an agent for Dr Bosawai. He also did not state any corrupt arrangement between Dr Bosawai and Ms Poru that the gifts corrupted the choice of the persons involved. In the absence of such evidence before me, allegations 4 to 10 also cannot be sustained at this stage and are therefore struck out.
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. These grounds are also struck.
48. Two other allegations were made against Mr Paul Koe (aka Paul Kae) and Pastor James Ngelea. They were also claimed to be agents for Dr Bosawai. They were alleged to have given $120.00 each to one Milton Bale to induce him to vote for Dr Bosawai. There was no evidence given that the money gifted was for the intention to induce the said Mr Bale to vote for Dr Bosawai. No evidence was also provided to indicate that there was any corrupt arrangement made between Dr Bosawai and the two men. I am therefore satisfied that those grounds do not disclose any reasonable cause of action and are struck out. They will not be able to be sustained even at trial.
49. The final allegation as contained in Schedule 2 of the Petition is on the issue of undue influence. It is alleged that Mr Baraso, an agent of Dr Bosawai had intimidated and threatened Mr Ruana to vote for Dr Bosawai. He had uttered certain words to Mr Ruana to vote for Dr Paul. I however can see no evidence by Mr Ruana that any corrupt arrangement was made between Dr Bosawai and Mr Baraso to carry out the said intimidation and threats on Mr Ruana. In effect, the evidence of Mr Ruana is to the contrary. He talked about Dr Bosawai telling him that he knew nothing about the incident and that he was going to see him. When the doctor went to see him, he told Mr Baraso that he was not happy with Mr Baraso for what he did. Dr Bosawai gave him money to allow him pass freely before his eyes and his store. That piece of evidence runs counter the allegation of undue influence in Schedule 2. The allegation is also struck out at this stage. It cannot be sustained even at trial.
50. I can hereby conclude that all of the allegations against Dr Bosawai contained in Schedules 1 and 2 of Mr Maneka’s Petition are hereby struck out. They do not disclose any reasonable cause of action and is an abuse of the process of the court.
51. The effect of the courts’ ruling therefore is that the petition by Mr Maneka filed on 27 May 2024 is hereby struck out on the basis that it has not been duly served on Dr Bosawai. It is also struck out because the petition had failed to disclose any reasonable cause of action and is an abuse of the process of the court. I order cost against Mr Maneka. I hereby order accordingly.
52. I direct that a certificate confirming the validity of the election of Hon Dr Paul Popora Bosawai as the duly elected candidate for the North Guadalcanal Constituency is to be issued to (i) the Governor General, (ii) the Speaker of the National Parliament and (iii) the Electoral Commission.

THE COURT
Justice Maelyn Bird
Puisne Judge