Taranban v Boedoro [2004] VUSC 15; Civil Case 149 of 2004 (3 December 2004)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 149 of 2004

BETWEEN:

GREGORY TARANBAN
Petitioner

AND:

PHILIP BOEDORO
First Respondent

AND:

ELECTORAL COMMISSION
Second Respondent

Coram: Mr Justice Oliver A. Saksak

Counsel: Mr Willie Daniel for the Petitioner
Mr Ishmael Kalsakau for the First Respondent
Attorney General for the Second Respondent not appearing.

Date of Hearing: 18th November 2004
Date of Judgment: 3rd December, 2004

JUDGMENT

Introduction and Background Facts

This is a reserved judgment. The matter was heard in Luganville, Santo. The petitioner and first respondent were candidates for the Maewo Constituency during the snap elections held on 6^th July 2004. The first respondent was declared elected by the second respondent with 551 votes. The petitioner who scored only 271 votes filed an election petition claiming that the first respondent’s election was not valid on grounds of bribery and treating under the provisions of Section 61 (a) of the Representation of the People’s Act [CAP. 146] (the Act). He filed his petition on 6^th August 2004 setting out the particulars of the allegations.

At the hearing of the petition counsel informed the Court that the Attorney General would not be appearing on behalf of the second respondent but that the second respondent would simply abide any court orders.

Relief Sought

The petitioner seeks the following reliefs –

1. “A declaration that the election of the first respondent as elected member of Parliament for Maewo constituency is void.
   
2. A declaration that the petitioner be substituted as the elected member of parliament of Maewo constituency.
   
3. Costs.”
   

Evidence By Petitioner

The petitioner gave oral evidence and was cross-examined on his sworn statement dated 30^th August 2004. He called evidence from Chief Harold Finger and David Kamuel in support of his case.

The petitioner’s evidence in summary related to a gathering at Gaiovo Village on Sunday 4^th July 2004. He said he was at Kerepei village and he saw a local pop band moving their musical instruments by truck to entertain a rally at Gaiovo. He said that he arrived at Gaiovo at 1 o’clock p.m. and saw many people eating and drinking kava. These people, he said had come from Narovorovo, Nasawa, Rononawo, Nota, Qwtiawol, Betarara, Lalavaro, Rembu, Naone and Marino villages. He said at the time rice and bullock were cooked and shared to everyone. And that at 3 o’clock the people were beginning to leave the village to return to their own. He said he saw the first respondent Peter Salemalo, Tom Andrew, Joe Adin and members of the Campaign team all present at the time.

Chief Finger’s evidence in brief related to what he saw and heard happened after the elections. He said he saw the first respondent asking people including himself in relation to whom they had voted for. He said he heard the first respondent say that anyone who did not vote for him could not be allowed to take part in the victory celebrations. He said his concern is whether this behaviour is correct in law or not.

David Kamuel gave a very short witness statement upon which he was cross-examined showing that as assistant chief he saw 20 bags of cement donated by the first respondent to the Naone Community on 3 June 2004.

Evidence By First Respondent

The first respondent gave oral evidence in addition to his sworn statement of 20^th September 2004 tendered into evidence as Exhibit D1. He called evidence from Peter Salemalo, Chief Joseph Balango, Lindsay Garae and Alfred Boesel in support of his defence. All the witnesses were cross-examined in relation to their respective sworn statements which were tendered in evidence as exhibit D3 to D6. It is not necessary for me to summarise their evidence but suffice it to say that when dealing with each allegations, the Court will make references to relevant evidence of each witness to make a finding or a determination.

Burden And Standard of Proof

In this matter the petitioner has the burden of proof. The standard required is on the balance of probabilities but it is a higher standard than in the normal civil cases.

This petition is founded on section 61 (a) of the Act which states –

“1. The election of a candidate may be declared void on an election petition if it is proved to the satisfaction of the Supreme Court, that-

1. bribery, treating, undue influence or other misconduct or circumstances whether similar to those herein before enumerated or not, have so extensively prevailed that they may be reasonably supposed to have affected the result of the election, ..................”

(emphasis, added).

At the outset of his opening address, Mr Kalsakau submitted that the words “so extensively prevailed” read in conjunction with the context of the whole provision and in particular the underlined words or sentences, place a heavy duty of proof on the petitioner. I accept that submission as correct. The petitioner therefore has a heavy duty of proof in this matter. What therefore has he to prove to the satisfaction of the Court?

The petitioner is required to prove not only did the first respondent commit acts of bribery or treating, but he has to prove also that those misconduct were so extensive as to affect the result of the election.

The Law

The petitioner alleges bribery against the first respondent. Section 45 of the Act states –

1. A person commits the offence of bribery –
   
   1. if he directly or indirectly by himself or by other person –
      
      1. gives any money or procures any office to or for any voter or to or for any other person on behalf of any voter or to or far any other person in order to induce any voter to vote or refrain from voting,
         
      2. corruptly does any such act on account of any voter having voted or refrained from voting, or
         
      3. makes any such gift or procurement to as far any person in order to induce that person to procure, or endeavour to procure, the election of any candidate or the vote of any voter; or
         
      4. if upon or in consequence of any such gift or procurement he procures or engages, promises or endeavours to procure the election of any candidate as the vote of any voter,
         
   2. if he advances or pays any money or causes any money to be paid to or to the use of any other person with the intent that such money or any part there of shall be expended in bribery at any election, or knowingly pays money or causes any money to be paid to any person in discharge or repayment of any money wholly or in part expended in bribery at any election,
      
   100. if before or during an election he directly or indirectly, by himself or by any other person on his behalf receives, agrees or contracts for any money, gift, loan or valuable consideration or any office, place or employment for himself or for any other person for voting or agreeing to vote as from refraining or agreeing to refrain from voting,
        
   4. if after an election he directly or indirectly by himself or by any other person on his behalf receives any money or valuable consideration on account of any person having voted or refrained from voting or having induced any other person to vote or refrain from voting.
      
2. For the purposes of sub-section (1) of this section –
   
   1. references to giving money include references to giving lending, agreeing to give, lend, offering, promising and promising to procure or to endeavor to procure any money or valuable consideration, and
      
   2. references to procuring office include references to giving procuring, agreeing to give as procure, offering, promising and promising to procure or endeavour to procure any office, place as employment.”
      

The petitioner further alleges treating against the first respondent. Section 46 of the Act defines treating as follows –

“A person commits the offence of treating –

1. if he corruptly by himself or by any other person either before, during or after an election directly or indirectly gives or provides or pays wholly or in part the expenses of giving or providing any food, drink or entertainment to or for any person –
   
   1. for the purpose of corruptly influencing that person or any other person to vote or refrain from voting, or
      
   2. an account of that person or any other person having voted or being about to vote as refrain from voting,
      
2. if he corruptly accepts or takes food, drink or entertainment offered in the circumstances and for the purpose mentioned in paragraph (a) of this section”.
   

Considerations and Determination of Allegations

I turn now to consider and determine the allegations raised by the petitioner against the first respondent in the light of the evidence in the following manner –

1. Free handouts of Kindergarten School materials etc to Nasawa, Narovorovo, Naviso, Kerepei, Ngota, Gaiovo and others.
   

The petitioner’s evidence was insufficient to prove this allegation to the satisfaction of the Court. Chief Finger’s evidence was irrelevant to this allegation. David Kamuel’s evidence show that on 3^rd June 2004 20 bags of cement were distributed to the Naone Community.

In the first respondent’s evidence he confirmed making a contribution of 20 bags cement to the Naone Community. He clarified that the contribution was made on 24^th May 2004 and he had spent VT34,000 from his MP Allocation for the year 2004. Alfred Boesel confirmed that evidence and said the donations were made before the dissolution of Parliament. He said these donations were made on 30th and 31^st May 2004.

I am satisfied with the clear explanation by the first respondent and of his witness Alfred Boesel in relation to the materials donated to the Maewo communities. I find no evidence showing food offers by the first respondent as alleged. I find no evidence of bribery and treating. The petitioner therefore has failed to prove this allegation to the required standard.

2. Allocations of Public funds, Payment of Hot-Air to N. Boesel and Legal fees etc.
   

In his evidence the first respondent produced document showing how his MP Allocations are spent and on what dates. On 2 February 2004 he allocated VT48,271 to Naone Community for a Hot-Air Drier. On 24^th April 2004 an amount of VT174,500 was expended on legal fees. Counsel for the petitioner did not cross-examine the first respondent about this amount. Alfred Boesel explained in his affidavit at paragraph 12 that the Naone Community had failed their agreement to pay half price of the Hot-Air Drier. Nathan Boesel therefore made the half-payment and the respondent made the donation to him. This witness clarified that the drier is still being used by the community. That evidence was not rebutted by the petitioner or his witnesses.

I accept the explanations of the first respondent and his witness. I am not satisfied that the petitioner has proved bribery and treating against the first respondent in relation to these allegations.

3. Gifts During Campaign And After Elections

The petitioner’s evidence show nothing about gifts presented by the first respondent to voters either during or after the elections. Chief Finger’s evidence was that he heard the first respondent tell him and others who did not vote for him that they would not be allowed to take part in the victory ceremony.

The first respondent in response, explained that he did pay for food but that it was to feed his campaigners and band members. Peter Salemalo confirmed that evidence. That occurred because they had no time to cook for themselves as they were moving from one place to another. They were 20 villages in all that campaigns had to be held. Lindsay Garae confirmed in his evidence that requests for food preparation were made in advance with the campaign program. Food were prepared and sold to them as an ordinary market. He was a member of the campaign team for the first respondent. His evidence was that only campaigners were given tools as gifts at the end of the elections. Rockcliff Aru Wasdam was part of the campaign team. He confirmed the same arrangement about food and gifts.

I am satisfied as to the explanations given by the first respondent and his witnesses. I find nothing dishonest or corrupt on his or their part. The petitioner has therefore failed to prove these allegations to the required standard.

4. Free Hand Outs of Tools on 7^th July 2004

The petitioner’s evidence did not reveal any free hand outs of garden tools. Chief Finger’s evidence did not show any free handouts. David Kamuel’s evidence fell short of showing that there were free handouts of garden tools.

In response to this allegation in cross-examination by Mr Daniel of Lindsay Garae whether voters received free hand outs of garden tools, he said that only campaigners received tools after the election.

I therefore find on the evidence that the petitioner has not proved these allegations against the first respondent.

5. Gathering at Gaiovo on 4^th July 2004

The petitioner alleged that there was campaigning on 4^th July 2004 by the first respondent after the campaign time had closed at 12 o’clock midnight on 3 July 2004. He also alleged free food to the public at the time. I have summarised the petitioner’s evidence at pages 2 – 3 of this judgment.

In response, the first respondent’s evidence was that in the actual program of campaign which was pre-planned and which his campaign team was adhering to, that there was going to be a campaign on 4^th July at Gaiovo. That was where campaigns were to end. Therefore the Chief and his community having known of the program in advance had prepared food. A bullock was killed and prepared.

This was the only contribution from the first respondent’s party towards the food preparation. However he contacted the party’s head office which informed him that campaigns were closed on 3 July. With that information they went to Gaiovo village in the morning. A band was already playing on stage. On arriving he informed the Chief about the matter. The Chief made a public announcement and called off the music. The Chief however invited all the people to share the food that they had prepared. There was no public speech made that day. The first respondent and other candidates remained at a Guest House. Everyone went home at about 3 o’clock in the afternoon. There was no free kava.

Chief Joseph Balango, the big Chief of Gaiovo village confirmed the evidence of the first respondent. He was the one who told his people to prepare food. He was the one who made a public announcement calling off the music. He was the one who invited everyone to share the food they had prepared because it was too much to be wasted.

Peter Salemalo confirmed the evidence of the first respondent about the program and the public gathering at Gaiovo village. That food was shared by the Chief but there was no free kava. Lindsay Garae and Alfred Boesel also confirmed these in their evidence. None of this evidence was rebutted by the petitioner.

I am therefore satisfied that nothing done by the first respondent amounted to bribery or treating to voters. The petitioner has not satisfied the Court to the required standard in respect to these allegations.

6. First Respondent Inquiring Into People’s vote

The petitioner did not show any evidence in relation to this allegation. His only relevant witness was Chief Harold Finger. On cross-examination by Mr. Kalsakau he said he is related to the first respondent as straight brother. He said that after the elections he went to congratulate then first respondent on his winning the election. It was then that he as asked whom he voted for and was told that only those who voted for him would take part in the victory ceremony. The chief said he felt bad about that and so he complained. The first respondent was not cross-examined in relation to this point.

I find that what was said by the first respondent was said in a family relationship context. It was not a public announcement by the first respondent using a haler and travelling from place to place. I therefore find nothing corrupt in that conduct and this court is not satisfied that the petitioner has proved this allegation to the required standard.

Submissions By The Petitioner

Counsel for the petitioner lodged the petitioner’s final written submissions on 25^th November 2004. First he states the relevant legal provisions of sections 61 (1) (a), 45, 46 and 60 of the Act. Secondly he summaries the petitioner’s case and their evidence. Later he summarises the petitioner’s case and their evidence. Then he discusses the evidence and makes relevant submissions. Then he applies the law to the facts. He cites the case law of Peter Salemalo v Paul Ren Tari, [1998] VUSC 46; Election Petition Case No. 30 of 1998.

Beginning first with the summary of evidence the Court will put the record of evidence straight. In respect to Chief Harold’s evidence, it is not correct that he said the first respondent and “some of his men” were asking voters who they had voted for. Chief Harold did not allege that some of the first respondent’s men were asking people. He specifically said it was the first respondent himself. Secondly it was not part of his evidence that the first respondent said that (his) “MP allocation will only go to those people who voted for him.”

Thirdly it was not Chief Harold’s evidence that the first respondent talked to him in “an angry manner.”

In relation to Philip Boedoro’s evidence it was not part of his evidence that there were about “2-3 pop groups” entertaining at Gaiovo on 4^th July. Further it was not Chief Balango’s evidence that on 4^th July music entertainment was provided by Local pop groups. The evidence was that there was only one local pop group.

As to the petitioner’s submissions –

1. In relation to food and kava preparations and sale therefore during campaigns made under paragraph 1:
   

The Court finds that the first respondent and his witnesses did not deny that when they sent their campaign programs to each village, they did so with requests to prepare and sell food to them. Their evidence was that there were about 20 members of the campaign team and a band and such arrangement was necessary as they did not have the time to cook. It was also an opportunity for villagers to earn money.

The petitioner gave no evidence that showed there were promises attached to the requests made. There was no evidence that the campaigns made announcements to the public during campaigns inviting villagers to prepare food to sell. The petitioner did not produce evidence to show how he and his campaign team were fed during campaigns. It was in evidence that the petitioner himself bought food from the market stalls which had been requested by the first respondent and his team. He did not rebut that evidence. It was also in evidence that the public who attended rallies also bought food from the market stalls.

The petitioner has not shown that all the people or any of them who sold food to the first respondent’s team who should have voted for him but for the fact that he sold food to the first respondent’s he actually voted for him and not for the petitioner.

The Court is therefore not satisfied with the submission that requests to prepare and sell food and kava to a campaign team and to the public was a way of winning votes. Those submissions are therefore rejected.

2. In relation to handouts of materials to communities prior to 6^th July 2004, as alleged under paragraph 2, it is alleged and submitted that as it was done after the dissolution of Parliament and by the first respondent who was still acting as Minster of State, that he had induced people indirectly to vote for him.
   

It has been submitted by Counsel that the Court should ask itself why not the handouts made prior to dissolution of Parliament. The first respondent in evidence gave the answer – his MP allocation was not paid at the time. On an equal footing, if he did not make the handouts in May, when could he have done so? The Court takes judicial notice of the fact that MP allocation are to be used solely for community development through members of Parliament. If the first respondent did not make the handouts, how would he be accountable for the money allocated to him?

The petitioner did not produce evidence to show whether the first respondent knew or had knowledge of when Parliament was going to be dissolved. He did not show by evidence that even if he knew about the dissolution, what could he have done about it?

It was submitted by the petitioner that in sending the materials after dissolution of Parliament the Court can infer that the first respondent had malicious intention of inducing people to vote for him. I think malicious intention involves some act of dishonestly. If that submission is correct, why did the first respondent keep a record of the handouts. In his evidence he produced a record sheet showing community allocations made during the month of May 2004. Except for item’s which was made to N. Boesel, and for which reasonable explanation was given, the rest were made to communities. It would have been different if allocations were made to private individuals and no records were kept. In his evidence the first respondent explained the purpose of annexing those records to show transparency. Nobody who is concerned about transparency would keep such records. And in my view only when that occurs can a petitioner allege a malicious intention. I therefore reject this submission by the petitioner.

Counsel for the petitioner further submitted that the Act does not limit the giving of bribery and other similar election offences only to the time of political campaignings, that the law is silent and that bribes can be made during any time leading up to election day. The Court cannot go beyond the wording of the relevant sections of the Act to infer something that was not intended by Parliament. To do so would be to open the flood gates of unnecessary frivolous and vexatious litigations. That submission is therefore rejected.

3. In respect to the gathering at Gaiovo village on 4^th July:

It was submitted that the first respondent being a Minister of state at the time knew that the campaign times had lapsed at midnight of 3 July 2004 and that inviting people to join them in the feasting amounted to treating.

The first respondent’s evidence through Peter Salemalo was that it was scheduled on the campaign program that a rally was to take place on 4^th July at Gaiovo village. That is not disputed. However the first respondent said that they were unaware that campaigns had closed at midnight on 3 July 2004. It is that knowledge that the petitioner seeks to make an issue out of. In my view it should not be difficult to understand that had that been the case, the program itself would not have included a rally on Sunday 4^th July. It was submitted that the petitioner had informed Joe Andin Tamata that campaigns had closed at midnight on 3^rd July. As to when that occurred is not certain. The petitioner said in evidence he only arrived at Gaiovo at 1 o’clock p.m. on 4^th July. As to why he went there when he knew before hand that campaigns had closed at midnight the previous night draws in question the credibility of his evidence. The question to ask is why did he go to Gaiovo knowing the campaigns had closed? Why did Paul Ren Tari go to Gaiovo? Why did so many people go to Gaiovo at all if they had known that campaigns had closed the night before? Joe Andin Tamata was not called to confirm the petitioner’s evidence. Under those circumstances I find that his evidence lack credibility.

Mr Daniel has not identified any legal provision that made a gathering on 4^th July two days prior to polling on 6^th July an unlawful gathering. The evidence in response was that there was no campaigning. It was the Chief who invited all the people to share all the food for fear that it would be wasted. I find nothing unlawful about the gathering and the sharing of food. I reject the petitioner’s submission in relation to these issued.

4. In relations to the issue of the first respondent enquiring into Chief Finger’s vote:
   

Firstly it is incorrect to assert that the first respondent enquired into other people’s votes as well. There was no evidence of that. Secondly it was not part of Chief Finger’s evidence that the first respondent uttered his question in an angry manner. It was shown in evidence that the Chief is the first respondent’s brother. After the election and the results thereof the Chief went to greet and congratulate his brother on his winning. That is a perfectly normal thing to do in our communities. It is in that context that the words were spoken. If there is any truth in it, and evidence has it that the Chief felt bad about being told he would not be part of the victory celebrations, it may not be for the reason that he did not vote for the first respondent, but that he as a brother could not be allowed to take part. That evidence remains uncertain because Counsel for the petitioner did not cross-examine the first respondent in relation to it.

The petitioner’s submissions in relation to this issue are therefore rejected.

Case Law Submissions

Mr Daniel submitted the case of Peter Salemalo v Paul Ren tari and the Electoral Commission [1998] VUSC 46 for consideration by the Court. He quotes a passage from page 25 of the judgment to support his submission that the first respondent had distributed a lot of materials to many communities which was not in the gesture of custom but that the method was used to induce and or corruptly gain votes from people.

I have already in considering and determining the evidence in this case found that in doing so, there was no intention by the first respondent to induce or corruptly gain votes. Counsel omitted to stress that in the case cited, the petitioner lost because he could not prove an intention on the part of the first respondent. In that very case this Court held that to substantiate the offences of bribery and treating under sections 45 and 46 of the Act the petitioner must go beyond proving mere acts of the respondents. They must prove an intent in order to discharge the standard of proof required. That is why the Court goes further to agree with Mr Kalsakau that the petitioner in this case has the duty to prove on the balance of probabilities, but that the degree of standard of prove is a high one. The discussions on mens rea are found from pages 9-11 of the judgment. This Court endorses and adopts those views as the correct law on the offences of corrupt practices under the Vanuatu Act.

That case therefore affords no assistance to the petitioner.

As at the time of publishing this judgment the Court had not received nor seen any written submissions by counsel on behalf of the first respondent.

Therefore for the foregoing reasons and findings the petition fails. The election of the First Respondent is hereby confirmed and a certificate to that effect will be issued accordingly.

The Petitioner is hereby ordered to pay the First Respondent’s costs of and incidental to this proceeding to be agreed if not, taxed.

DATED at Port Vila, this 3^rd day of December 2004.

BY THE COURT

Oliver A. SAKSAK
Judge.