Talifilu v Tagini [2024] SBHC 99; HCSI-CC 196 of 2024 (11 September 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Talifilu v Tagini
Citation:
Date of decision:	11 September 2024
Parties:	Celsus Talifilu v Hon. Makario Tagini
Date of hearing:	4 September 2024
Court file number(s):	196 of 2024
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry’ PJ
On appeal from:
Order:	1. The application to dismiss the petition is refused on grounds 1, 2, 3, 5, 7, 9 and 10 of the petition. 2. Grounds 11, 12 and 13 of the petition are dismissed. 3. The costs of the application are costs in the cause.
Representation:	Ms L Ramo for the Petitioner Mr E Olofia and Ms F Waeta’a for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Electoral Act 2018 S 126 (1) (a) and (b) (iii), S 111 (1) (b), S 111 (1) (b) (i), , S 111 (1) (b) (ii), Electoral Act Petition Rules, r 24, r 50, r 9 (1) Solomon Island Courts (Civil Procedure) Rule 2007, r9.75 Electoral (Amendment) Act 2023, S 108 (5) to (8), S 108 (7)
Cases cited:	Salopuka v Panakitasi [2020] SBHC 72, Airahui v Kenilorea [ 2020] SBHC 14, Lusibaea v Filualea [2020] SBHC 28

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 196 of 2024

BETWEEN

CELSUS TALIFULI
Petitioner

AND

HON. MAKARIO TAGINI
Respondent

Date of Hearing: 4 September 2024
Date of Ruling: 11 September 2024

Ms L Ramo for the Petitioner
Mr E Olofia and Ms F Waeta’a for the Respondent

Lawry; PJ

RULING

1. The Petitioner and the Respondent were candidates in the general election in April 2024. The Respondent was the successful candidate. He received 2391 votes, 144 more than the Petitioner. The Petitioner has filed a petition challenging the validity of the election of the Respondent. The basis of the challenge is an allegation that on 13 occasions payments were made that would amount to illegal payments of election bribery.
2. The Respondent has filed an amended application to strike out the petition. In that amended application the Respondent pleads as follows:
   • "1 That the Petition is frivolous, vexatious and an abuse of Court process in that it is a Criminal Prosecution of the Respondent in the guise of an election petition.
   2. The Petitioner had erroneously invoked Section 126 (1) (a) and (b) (iii) of the Electoral Act 2018 whereas the Petition matters should be filed in the civil jurisdiction of the High Court.
   3. Section 126 is only for determining the “guilt” of the Respondent and not the validity of the Respondent’s election. It is criminal in nature and the Petitioner had erroneously relied on Section 126 of the EA to invalidate the Respondents election.
   4. The Petition does not allege any invalidity of the result of the election hence does not give rise to any reasonable cause of action within the civil jurisdiction of the High Court.
   5. The High Court does have the jurisdiction over election petition matters and is limited only to inquire into and determining the validity of the election process or its results. The High Court does not have the jurisdiction to inquire into and determine the guilt or innocence of a party in an election petition case.
   6. The Petition is substantially defective and cannot be cured by an amendment in that any amendment to cure the jurisdiction error of the petition would be tantamount to a fresh petition filed outside of the prescribed period.
   7. In fact, the Petitioner was already given leave to file an application for amendment if he wished but have failed or decided not to file such application to date.
   8. The pleadings are also insufficient to bring this matter to trial. Even if they are sufficient which is denied, the evidence produced in numerous supporting sworn statements filed by the Petitioner will not be relied upon at trial if this matter goes to trial.
   9. Alternatively, allegations pleaded in paragraphs 7 (1) to (13) does not disclose any reasonable cause of action as it fails to disclose any corrupt arrangement to demonstrate how the alleged benefits were given with the intent to influence the person alleged to vote in any particular way.
   10. The allegations are insufficient, vague and too general and does not meet the required standards in election cases when it comes to pleading. In the circumstance, the Respondent prays for the orders sought herein.”
3. The application to strike out is made in reliance on rule 24 of the Electoral Act Petition Rules, section 111 (1) (b) of the Electoral Act 2018, rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 [‘the Rules’] and the inherent jurisdiction of the High Court.
4. Rule 24 simply requires an interlocutory matter such as this application, to be held by a judge. Section 111(1)(b) of the Electoral Act provides as follows:
   • "(1) “The Court:
     • (a) ...
     • (b) may dismiss a petition without a hearing if:
       • (i) the petition is frivolous or vexatious; or
       • (ii) there are insufficient grounds to warrant the hearing of the petition.”
5. Under the Electoral Act the Court then has a discretion to dismiss the petition if the Court considers the petition is frivolous or vexatious or alternatively if there are insufficient grounds to hear the petition. Rule 9.75 of the Rules provides as follows:
   • “9.75 If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
   • (a) the proceedings are frivolous or vexatious; or
   • (b) no reasonable cause of action is disclosed; or
   • (c) the proceedings are an abuse of the process of the court;
   • the court may, on the application of a party or on its own initiative, order that the proceedings be dismissed generally or in relation to that claim.”
6. It is unclear why the Respondent places reliance on rule 9.75 as section 111(1) (b) is part of the statute as opposed to rules for civil procedure which may be waived by the judge. Under rule 9.75 of the rules there are alternative grounds upon which a judge has the discretion to dismiss a claim. Paragraph (a) is identical to section 111(1) (b) (i). Paragraph (b) is the equivalent of section 111(1) (b) (ii) and paragraph (c) is irrelevant to the issues raised by the Respondent. Rule 50 of the Electoral Act Petition Rules 2019 provides:
   • “50. Wherever these Rules are silent as to the procedure to be followed in particular circumstances the procedures of the Court shall, as near as the circumstances will admit, be the same and the Court has the same powers, jurisdiction and authority as if it were hearing a civil proceeding.”

This is not a situation where there is silence as to procedure. I am then required to deal with the application in terms of section 111(1) of the Electoral Act.

7. The first six grounds all relate to the use of section 126(1) (a) and (b) of the Electoral Act. Section 126 creates the offence of election bribery. It provides as follows:
   • “126. Election bribery
   • (1) A person commits an offence if:
   • (a) the person directly promises, offers or gives a benefit to another person; and
   • (b) the person does so with the intention of influencing the other person to:
   • (i) vote or refrain from voting at an election; or
   • (ii) vote in a particular way at an election; or
   • (iii) influence a third person to vote, refrain from voting or vote in a particular way at an election.
   • Maximum penalty: 150,000 penalty units or imprisonment for 15 years, or both.”
8. There is no issue that the Petitioner is a person who is entitled to file an election petition as he was a candidate for the election in the constituency to which the petition relates. Following the amendment of the Electoral Act in 2023 section 108(5) to (8) now provides:
   • “(5) Without limiting the circumstances in which the Court may find that an election is void, the Court must declare the election of a candidate void if it finds that the candidate was not qualified for election or was disqualified at the time of the election.
   • (6) The Court must declare the election of a candidate void if any corrupt or illegal practice was committed in connection with the candidate elected or the candidate’s agent.
   • (7) Where in an election petition it is shown that:
     • (a) corrupt or illegal practices or illegal payments, employments or hirings were committed in reference to the elections for the purposes of promoting or procuring the election of a candidate; and
     • (b) the corrupt or illegal actions or illegal payments, employments or hirings in paragraph (a) so extensively prevailed that they may be reasonably supposed to have affected the result;
   • The candidate’s election, if elected, shall be void and the candidate shall be disqualified for election as a member of Parliament for a period commencing on the date of judgment by the Court to the date of dissolution of Parliament following that judgment.
   • (8) For the purposes of this section, “agent” includes a polling agent, a counting agent, and any person acting on behalf of a candidate during that candidate’s campaign.”
9. The case for the Petitioner is that each of the grounds set out an allegation of an illegal payment either by the Respondent his agent or his supporter and submitted that each is a basis for challenging the validity of the election.
10. The Petitioner has now abandoned grounds 4, 6 and 8 leaving 10 instances which are alleged to amount to election bribery. The Petitioner has sought leave to file an amended petition on 13 August 2024 however having been granted leave did not do so.
11. There are two main challenges to the petition. The Respondent submitted that the petition merely seeks the determination of guilt of the Respondent and submitted that as a result the petition is defective. An electoral petition is not about proving a criminal offence by the Petitioner. That is for a criminal Court to determine, not this Court. The Respondent has referred the Court to paragraphs 3 and 4 of the Chief Justice’s decision in Salopuka v Panakitasi [2020] SBHC 72 and has submitted that this Court does not have the jurisdiction to hear the petitioner which is based on allegations of election bribery. The Chief Justice as paragraphs 3 and 4 said:
    • 3. It is important to point out from the outset that relying on proof of “guilt” of a candidate under section 126 of the Electoral Act 2018 to invalidate an election is not the right way of going about an election petition. This is not a criminal proceeding, and an election petition is not about proving guilt of a candidate. Section 126 of the Electoral Act 2018 does nothing more than define the offence of bribery as it relates to elections. An election petition therefore can only assert that the election of a candidate was not valid and will do that in the exercise of its civil jurisdiction, as opposed to inquiring into the offence of bribery in its criminal jurisdiction.
    • 4. The current petition therefore is defective for it merely seeks the determination of the guilt of the Respondent, when the issue before the Court should be determining the validity of the election in its civil jurisdiction on the grounds of bribery and or corrupt practice. These are not the same. Counsel should not confuse the process in determining an election petition as opposed to proof of guilt in a criminal prosecution. Proof of guilt in a criminal prosecution is of a higher standard, while proof of bribery in an election petition is lower than the criminal standard but higher than the civil standard of “balance of probabilities”
12. The Chief Justice then discussed the cases of Airahui v Kenilorea [2020] SBHC 14 and Lusibaea v Filualea [2020] SBHC 28. In referring to the judgment of Higgins PJ in Lusibaea he said at paragraph 11:
    • “11. I agree with his Lordship. In saying that the Court has power to determine bribery allegations and to void such elections on the relevant proof, is not making law and usurping power of Parliament, neither is it applying repealed legislation. In other words, the power of the High Court to invalidate an election on proof of bribery or corrupt practice, is preserved under the Electoral Act 2018 and the Constitution. Any suggestions otherwise is mischievous.”

The Chief Justice then said at paragraphs 19 and 20:

• “19. If it was the will of Parliament to confine allegations of bribery to criminal prosecutions as the only route to invalidating an election, I do not think it would have remained so silent about such change, for the effect of such change, under Parts 8 and 9 of the Act would create a vastly different regime that requires a criminal conviction before a member can be disqualified (s. 129) and his election to be invalidated. This would amount to a major policy shift, which makes in much more difficult for alleged corrupt behaviour to be investigated, proven and punished.
• 20. When such scenario is contrasted against the strict time limit of 12 months imposed upon the determination of petitions, (section 111 (1A) of the Electoral Act 2018), it only strengthens the view that it was never the intention of Parliament to confine the consequences of bribery and corrupt allegations solely to a criminal prosecution as in section 129.”

13. This view was reinforced in the 2023 amendment to section 108 of the Electoral Act which now provides as set out in paragraph 8 above. That amendment added subsections 6, 7 and 8 to section 108.
14. The submission that this Court does not have jurisdiction to hear the petition because the petition makes allegations of election bribery cannot succeed as the Petitioner is not seeking convictions as if this were a criminal Court. The petition challenges the validity of the election on the basis of corrupt or illegal practices or illegal payments.
15. The Petitioner relies on section 126 of the Act to show that the payments alleged to have been made were illegal. The Petitioner is entitled to do that.
16. The second principal challenge is an allegation that the pleadings are insufficient to bring the matter to trial. At ground 8 of the application the Respondent asserted that if this matter proceeds to trial, at the trial the Petitioner will not be relying on the sworn statements filed in support of the petition. That assertion was not accepted by the Petitioner and makes little sense. If they are not to be relied on there would be no point in filing them. In any event the evidence to be relied on is a totally different issue from the sufficiency of the pleadings. It is not known whether there will be further evidence filed. There was a direction given on 28 June 2024 that responses and sworn statements are to be served by 12 July 2024 but that was in relation to the application to amend the petition.
17. In dealing with the sufficiency of the pleadings, the Respondent has dealt with each allegation in turn and invited the Court to examine the evidence put forward at this stage. It is noted that Rule 9(1) of the Electoral Act Petition Rules provides:
    • “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.”
18. The Respondent has submitted that this Court should examine the evidence filed to date to determine whether there is sufficient evidence to proceed to trial and in submissions the Respondent has dealt with the issue as a sufficiency of evidence in relation to each allegation.
19. As the power to strike out a proceeding is to be sparingly used and only in obvious cases the Court is reluctant to prevent a matter to proceed to trial when it is not known what the evidence will finally be. There is a public interest in allowing petitions to proceed to hearing so that all relevant material is before the Court before a decision is made. While there are examples of payments where the proof appears to short of establishing the illegality of certain payments, the evidence should be heard so statements are not simply taken in isolation. Counsel for the Petitioner relies on what is described as being a promise, an offer and a benefit. Whether the inferences that counsel asked to be drawn from the timing on the circumstances of each allegation depends on how the evidence unfolds.
20. Grounds 1, 2, 3, 5, 7 and 9 all allege payments have been made to voters by the Respondent himself. The payments are all alleged to be made in circumstances where the Petitioner asks the Court to draw an inference as to whether there is proof of the requisite intention in terms of section 126(1) (b). That will be a matter to assess at trial. The Petitioner submits that there is evidence to satisfy section 126(1) (a) and necessarily proof of intention usually depends on the inferences available to be drawn. For those allegations then the petition should proceed to trial.
21. The 10^th ground alleges that a payment was made contrary to section 126 of the Electoral Act by the agent of the Respondent. It is alleged that the Respondent handed the money to his agent who in turn passed it to a registered voter The Petitioner submits that in the context of a promise having been given to new supporters of the Respondent the Court would be entitled to draw the inference to prove the intention of the Respondent. The Petitioner asserts that the payment was intended to induce and did in fact induce the registered voter to vote for the Respondent. Whether the evidence is sufficient to draw such an inference will be a matter for the trial.
22. Grounds 11, 12 and 13 are quite different. They each allege payments by a supporter of the Respondent. There is no allegation that the Respondent knew of or authorised the payment alleged to have been given. In Lusibaea Higgins PJ in addressing the allegations in that case said:
    • “In my view, even accepting this evidence it does not enable an adverse inference to be drawn against the 1^st Respondent.
    • That is for two reasons, first, it is not impermissible to pay a voter’s expenses to attend to vote. Thus the payment for the ticket is not a bribe.
    • Second, there is no evidence that the 1^st Respondent in any way knew of or authorised this transaction.
    • 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.”
23. For grounds 11, 12 and 13 there is similarly no allegation that the payments were made with the knowledge of and the authorisation of the Respondent. Further than that, section 108(7) would require proof that corrupt or illegal practices or illegal payments ... were committed for the purpose of promoting and procuring the election of the Respondent AND such corrupt or illegal practices or illegal payments so extensively prevailed that they may be reasonably supposed to have affected the result. That important part of what is required is not alleged in respect of the final three grounds. They are accordingly dismissed.
24. For these reasons the application to dismiss the petition is refused in respect of grounds 1, 2, 3, 5, 7, 9 and 10 of the petition. Grounds 11, 12 and 13 are dismissed. Counsel for the Respondent has made submissions as to the weight to be given to evidence filed. When sworn statements have been filed but there is yet to be cross examination, the Court cannot and must not determine weight to be put on evidence at the strike out stage. This matter will proceed to trial which necessarily will be without delay. Accordingly the costs of the hearing will be costs in the cause.

Orders

1. The application to dismiss the petition is refused on grounds 1, 2, 3, 5, 7, 9 and 10 of the petition.
2. Grounds 11, 12 and 13 of the petition are dismissed.
3. The costs of the application are costs in the cause.

By the Court
Hon. Justice Howard Lawry
Puisne Judge