Boe v Principal Electoral Officer [2013] VUSC 87; SC Election Petition 08 of 2012 (21 March 2013)

IN THE SUPREME COURT OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Election Petition No. 8 of 2012

BETWEEN:

PAUL JERRY BOE
Petitioner

AND:

PRINCIPAL ELECTORAL OFFICER
First Respondent

AND:

ELECTORAL COMMISSION
Second Respondent

AND:

OSCAR LEO ELECTORAL OFFICE AGENT
Third Respondent

AND:

PHILIP BOEDORO
Fourth Respondent

Coram: Justice Aru

Date of Hearing: 11th -13th March 2013
Date of Decision: 21st March 2013

Counsel: Mr. J. Tari for the Petitioner

Mrs. F. William's for the First, Second, and Third Respondents

Mr. S. Stephens for the Fourth Respondent

JUDGMENT

Background

1. The Petitioner, Paul Jerry Boe is one of the 8 candidates who contested the general elections on 30th October 2012 for the single seat for Maewo constituency.
   
2. Following the general elections, on 6th November 2012 the Electoral Commission officially declared the winning candidates for the 2012 general election. The candidate declared as duly elected for the Maewo constituency was Philip Boedoro, the Fourth Respondent.
   
3. The Petitioner filed his election petition on 26th November 2012 but was then amended and an amended petition was filed on 17th December 2012. The Petitioner alleges that Philip Boedoro was not validly elected.
   

Grounds for the Petition

4. The grounds for the petition are twofold and are as follows:
   

(a) That the proxy votes arrangement intended for the following polling stations were not received and counted:

(i) Asanvari;

(ii) Navenevene;

(iii) Tanmaeto (Betara) and

(iv) Kerebay

(b) that donations amounting to bribery were made by Philip Boedoro and his agents during campaign week at which time the term of Parliament of 2012 had lapsed.

5. The facts which the Petitioner alleges in the amended Petition firstly in respect of election irregularities (held back proxies) are that the Electoral Office agent at Saratamata East Ambae, Penama province failed to deliver the proxy votes to 5 polling stations, Asanvari, Navenevene, Tanmaeto (Betara) and Kerebay. That the proxies arrived at 2.00 pm on 29th October 2012 at Longana Airport on Ambae and were transferred to Saratamata provincial headquarters. They were distributed to other polling station in the Ambae constituency except Maewo constituency.
   
6. Secondly, in relation to the allegations of bribery made pursuant to Section 45 of the Act, the Petitioner alleges that Philip Boedoro on 14th September 2012 transferred the amount of VT34, 000 through Western Union at Lolowai Ambae to Basil Garae and Basil Garae gave VT11, 000 to Hedley Toa on 15th September 2012 for Hedley Toa to buy a pig for a family's death memorial feast at Gaiovo on Maewo. Furthermore Philip Boedoro's agents donated 2 bags of rice on 18th September 2012 to a deceased's family.
   

Relief Sought

7. There were three remedies sought in the amended Petition however before the Petitioner opened his case, counsel informed the Court that the Petitioner will not be seeking relief a) and c) and so these are struck out. The only relief the Petitioner will be seeking will be relief b) which is:
   

b) An order that the acts of the Fourth Respondent and his agents on the 14 and 18 September 2012 was pure bribery in nature and an order that the Second Respondent pursuant to section 61 (1) (a) as a consequence of section 61A 1) b) (ii) of the Representation of the Peoples Act declare his (the Fourth Respondent's) election as a Member of Parliament for Maewo constituency void.

Evidence

8. In support of the amended Petition the Petitioner filed four sworn statements one each from himself, Charley Pride, Lindsay Garae and Fancis William. They were all called as witnesses and were cross examined on their evidence.
   
9. The First, Second and Third Respondents say that the Petitioner is not entitled to the relief sought. They filed two sworn statements from Etienne Combe and Oscar Leo as the Third Respondent. Both were called as witnesses for the First, Second and Third Respondents and were also cross examined on their evidence.
   
10. The Fourth Respondent also filed a response stating that the Petitioner is not entitled to the relief sought. The Fourth Respondent filed four sworn statements, two were filed by the Fourth Respondent himself and one each from Hedley Toa and Basil Garae. They were all called as witnesses and were all cross examined on their evidence.
    
11. I must say at the outset that the allegations and evidence about the lawfulness of the actions of the Third Respondent in relaying information about proxy applications by telephone to presiding officers on Maewo due to the circumstances he faced on polling day are rejected and are struck out as these were not grounds pleaded in the petition as amended on 17th December 2012. The reason being that as the Chief Justice said in Lop v Isaac[2009] VUSC 23:
    

"if the court accepts these allegations and evidence in support, it is then a de facto substantive amendment of the petition by adding new grounds after the 21 days period and so is contrary to section 57 and 58 of the Representation of the Peoples Act[CAP146]."

a) Election Irregularity

12. The Petitioner alleges that there were election irregularities because proxies for the polling stations of Asanvari, Navenevene, Tanmaeto (Betara) and Kerebay were not sent to Maewo constituency although they were sent to Saratamata provincial headquarters.

13. In summary, the evidence of Etienne Combe, the Principal Electoral officer who is the First Respondent is that all proxy applications for Maewo constituency were sent to Ambae on 29th October to be distributed before 30th October. Oscar Leo, the Third Respondent in his evidence says that he tried his best to send the proxy applications to Maewo after they arrived in the afternoon at around 2.00 pm on 29th October 2012 but bad weather due to heavy rain and rough seas prevented him. He said out of the four boats available, one was out of service, the other took ballot boxes to west Ambae and did not return, one was on North Pentecost and the last one a Police boat took ballot boxes to Maewo (big sea) and there was no mobile network to contact them. Lastly because of rough seas, no boats came from Maewo to pick up these proxy applications.

14. Under cross examination he confirmed that he dispatched the ballot boxes in the morning to safeguard the papers because of rough seas. Later when the proxy applications arrived he could not send them because the weather was very bad by then. He was able to contact some polling stations by telephone and relayed the proxy information to them to allow voting to be done by proxy. He said out of a total of about 63 proxy applications 51 were relayed by telephone to Narovorovo polling stations and 1 for Navenevene polling station. 11 proxy applications remained as he could not contact all the presiding officers at other polling stations.

15. In their evidence, the Fourth Respondent, Hedley Toa and Basil Garae when cross examined confirmed that on the 29th and 30th October, the sea was very rough and no boats could travel between Maewo and Ambae.

16. The Petitioner in his evidence when cross examined said he was not on Ambae on the 29th October and could not say whether the Third Respondent tried his best to send the proxy applications to Maewo. He said he had no witnesses on Ambae who could confirm whether or not the sea was very rough.

17. I doubt that the Petitioner was telling the truth as in his sworn statement the Petitioner says that on 31st October, (a day after the elections) during the counting of votes Roger Boe who is his brother contacted him by phone from Ambae telling the Petitioner that the Fourth Respondent was leading the counting of votes.

18. The findings I make in relation to the allegation of election irregularity is that on the 29th and 30th October 2012, bad weather due to heavy rain and rough seas made it impossible for the proxy applications to be sent to Maewo from Ambae . Under these circumstances the Third Respondent tried his best to relay information on the proxy applications by telephone to some polling stations that he was able to contact.

b) Allegations of bribery under section 45

19. The Petitioner alleged in his petition that the Fourth Respondent committed bribery by giving of VT34, 000 to Basil Garae and Basil Garae gave VT11, 000 to Hedley Toa to buy a pig for a family's death memorial feast. Furthermore, that the Fourth Respondent's agents donated 2 bags of rice to bribe people to vote for him.

i) VT34, 000 and VT11, 000

20. In summary, Charley Pride in his evidence said that on 14th September 2012 he followed Basil Garae to Ambae to get Basil Garae's cargo and when they were there, the Fourth Respondent transferred VT34, 000 through the Western Union to Basil Garae. The next day being the 15th, he saw Basil Garae give VT11, 000 to Hedley Toa. When cross examined on what the VT11, 000 was for he said one of Hedley Toa's family had passed and he wanted to buy a pig for the occasion.

21. Basil Garae in his evidence said he owns a business on Maewo and one of which is transport by boat and the VT34, 000 was moneys owed by the Fourth Respondent for the use of the boat. This was confirmed by the Fourth Respondent in his evidence. Furthermore, Basil Garae said he gave VT10, 000 to Hedley Toa.

22. Hedley Toa in his evidence said he asked the Fourth Respondent for VT10, 000 but not VT11, 000 to buy a pig to perform a custom feast to mark the occasion of the passing of his father. He said the Fourth Respondent told him that Basil Garae will give him the VT10, 000. Basil Garae gave him VT10, 000.

ii) 2 bags of rice

23. In summary, Francis William in his evidence said that he was attending a funeral of a family member on 18th October 2012 at Navenevene and after the burial he saw the Fourth Respondent and members of his campaign team arrive together and moved to where people gathered for the funeral service. Chief Lorinson spoke on their behalf to extend their sympathies and sorrow to the deceased family and gave two bags of rice to the family for the occasion. Under cross examination he confirmed that the deceased was a close family member of the Fourth Respondent and it was part of Maewo custom for people attending a funeral to bring with them mats and rice to give to the family of the deceased.

24. The Fourth Respondent in his evidence said they were campaigning on North Maewo when they received the death message and decided to return to share their sympathies because he was closely related to the deceased who was the wife of his cousin brother.

25. The findings I make in relation to the allegations of bribery are firstly I find that VT34, 000 was given by the Fourth Respondent to Basil Garae on the 14th September 2012 in payment of moneys owed by the Fourth Respondent for the use of Basil Garae's boat.

26. Secondly, VT10, 000 and not VT11,000 was given by Basil Garae to Hedley Toa at the request of Hedley Toa to buy a pig for a custom funeral feasting to mark the passing of his father.

27. As for the 2 bags of rice, I find that it was given by the Fourth Respondent and his campaign team when they attended the funeral of his close relative to share their sympathies and sorrow with the family of the deceased. The two bags of rice were given to the family as it is the custom of Maewo for families or people attending a funeral to bring food and mats to give to the family of the deceased.

Issues

28. The following Issues arise for determination:

(i) Whether the First, Second and Third Respondents should be held liable for not sending the proxy applications from Saratamata provincial headquarters to some polling stations in Maewo constituency due to bad weather conditions.

(ii) Whether the inability of the proxy applications to be acted upon and cast as votes constitutes an irregularity in the counting of the votes which could affect the result of the election and warrants the Court to invoke section 61 of the Act.

(iii) Whether the Fourth Respondent committed bribery during the campaign period.

Law

29. The relevant provisions of the Representation of the Peoples Act as amended which are applicable to these proceedings are as follows:
    
    • Section 54 - Elections only to be challenged under this Act

"1) The validity of any election to Parliament may be questioned by a petition brought for that purpose under this Act."

• Section 55 - Persons who may present election petitions

"An election petition may be presented by one or more of the following:

.........

b) A person claiming himself to have been a candidate at such election."

• Section 45 - Bribery
  

"(1) A person commits the offence of bribery –

(a) if he directly or indirectly by himself or by any other person –

(i) 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 for any other person in order to induce any voter to vote or refrain from voting;

(ii) corruptly does any such act on account of any voter having voted or refrained from voting; or

(iii) makes any such gift or procurement to or for 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 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 or the vote of any voter;

(b) 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 thereof shall be expended in bribery at any election, or knowingly pays any 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;

(c) if 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 or from refraining or agreeing to refrain from voting;

(d) if 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 subsection (1) of this section –

(a) references to giving money include references to giving, lending, agreeing to give or lend, offering, promising and promising to procure or to endeavour to procure any money or valuable consideration; and

(b) references to procuring office include references to giving, procuring, agreeing to give or procure, offering, promising and promising to procure or to endeavour to procure any office, place or employment."

• Section 46A – Application of section 45 and 46

"Sections 45 and 46 are applicable only from the period commencing at the end of the life of Parliament or at the date of the dissolution of Parliament under subarticle 28(2) or (3) of the Constitution,nd including, the polling day."

• Section 61 - Grounds for declaring election void
  

"(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 –

(a) the candidate or any agent of the candidate has contravened section 61A, 61B or 61C;br>
(b) there has been such non-compliance with the provisions of this Act, in the conduct of polling or in any other matter that such non-compliance affected the result of the eln;

(c) the the candidate was at the time of his election a person not qualified or disqualified for election; or

(d) there was such irregularity in the counting of the votes as may reasonably be supposed to have affected the result of the election.

(2) Despite subsection (1), if on an electitition,tion, the Supreme Court finds that there has been failure to comply with any provision of this Act, but the Court further finds that:

t is satisfied that the election was conducted in accordancrdance with the principles laid down in this Act; and

(b) such failure did not affect the result of the election,

the election of the successful candidate is not to be declared void."

• Section 61A - Cut of date for using representation allowance, any money or donation in kind
  

" (1) A candidate for election must not spend, allocate or otherwise disburse to the constituency in which he or she is a candidate, any money, whether in the form of:

(a) his or her representation allowance – if the candidate is a member of Parliament; or

(b) any money obtained from any other source of funding, whether in the form of:

(i) cash donations; or

(ii) donations in kind,

from the period commencing at the end of the life of Parliament or at the date of the dissolution of Parliament under subarticle 28(2) or (3) of the Constitution, to and including, the polling day.

(2) For the purposes of this section,

donations in kind includes, but is not limited to, food or food products, transport, transport fares, machinery, cooking utensils, building materials and furniture.

• Section 61B -Exceptions on polling day

"Despite section 61A abject to paragraphs 46hs 46(a) and (b), a candidate may, without the intention of corruptly influencing any person, provide food, drink, transport and accommodation to any person on the pollin."

• Section 61C - Exception during the campaign period

(1) Despite section 61 subject to paragraphs 46hs 46(a) and (b), a candidate may during the campaign period:

(a) present a gift of a custom mat or an amount not exceeding VT1,000, or both, to a cor any person of similar auar authority in an area or village for the purposes of holding a campaign in that chiefs or persons village or area; or

(b) provide food, drink, entertainment, transport or accommodation only to his or her agents; or

(c) provide entertainment to the public for the purposes of entertaining the public during his or her campaign rally.

(2) For the purposes of this section, an agent of a candidate is a person approved by a candidate as a member of that candidate's campaign team.

(3) To avoid doubt, this section applies only during the campaign period declared by the Electoral Commission for purposes of this Act."

Application of Law

Locus standi of the Petitioner

30. The Petitioner was a candidate in the 2012 general election in the constituency for Maewo therefore he has the standing to file an election petition pursuant to section 55(b) of the Act.
    

Standard of Proof

31. The standard of proof required for the Petitioner to proof his case is the civil standard which is upon the balance of probabilities and I adopt the views expressed by Dawson J in Sope v. Principal Election Officer [2009] VUSC 62 when he was considering whether proof in an election petition should be a higher standard. He said that:
    

"that submission cannot be correct for if it was so then this court would be required to make its findings based upon an undetermined standard of proof that has no statutory authority to support it . The standard of proof in an election petition case of this type must be a civil standard of proof and decided upon the balance of probabilities."

Issue 1: Whether the First, Second and Third Respondents should be held liable for not sending the proxy applications from Saratamata provincial headquarters to some polling stations in Maewo constituency.

32. The evidence clearly establishes that the weather was very bad on the 29th and 30th with heavy rain and very rough seas making it impossible for boats to travel between Ambae and Maewo. The ballot boxes had to be dispatched in the morning of the 29th because the seas were becoming very rough. The Petitioner had the opportunity to call evidence from witnesses on Ambae to dispute the Third Respondent's evidence but did not do so.
    
33. The First, Second and Third Respondents submissions is that the heavy rain and rough seas are acts of God and they cannot be held to be negligent in their duties because of the non delivery of the proxy applications to Maewo constituency.
    
34. An act of God is something beyond human control and the Halsbury's Laws of England, Volume 9 at paragraph 458 defines it as follows:
    

"..an act of God may be defined as an extraordinary occurrence or circumstances which could not have been foreseen and guarded against, or more accurately as an accident (1) due to natural causes, directly and exclusively without human intervention, and (2) which could not by any amount of ability have been foreseen, or, if foreseen could not by any amount of human care and skill have been resisted."

35. Similarly Osborns Concise Law Dictionary, 11th Edition defines an act of God as follows:
    

"an accident or event which happens independently of human intervention and due to natural causes such as storm, earthquake etc... which no human foresight can provide against, and of which human prudence is not bound to recognize the possibility..... It will relieve from absolute liability in tort."

36. I accept the submissions by the First Second and Third Respondents that they cannot be held responsible for neglecting their duties because the circumstances prevailing at that time which prevented the transporting of the proxy applications to Maewo constituency was beyond their control.
    

Issue 2: Whether the inability of the proxy applications to be acted upon and cast as votes constitutes an irregularity in the counting of the votes which could affect the result of the election and warrants the Court to invoke section 61 of the Act.

37. The Petitioner submits that the fact that proxies never arrived at the constituency of Maewo is the major factor affecting the result of the election. He further submits that had the proxy applications reached Maewo constituency he would have won in the election.
    
38. He submits that the only reason why the proxy applications never arrived on Maewo was due to difficulties in arranging transport and the Principle Electoral Officer failed to perform his responsibility as required by section 3(2) (i) of the Act which states that:
    

"The Principle electoral officer shall in particular be responsible for:

.....

(i) Provision and distribution and security of ballot papers, ballot boxes and equipment for polling stations."

39. The Petitioner relies on Sope v Principal Election Officer and submits that the fact that the officers responsible for the conduct of elections did not carry out their responsibility under section 3 amounts to errors which warrant a declaration that the election of the Fourth Respondent is void.
    
40. These submissions must fail firstly for the same reasons given in response to issue 1 above. Secondly, the factual circumstances in Sope v Principal Election Officer are different .It was found that voters turned up to vote with their electoral cards only to be advised that they could not vote as their names were not on the electoral roll. Here proxy applications were forwarded to Saratamata, provincial headquarters but were not able to be transported to Maewo constituency due to heavy rain and rough seas, which is beyond anyone's control.
    
41. Section 61 (1) (2) provides as follows:
    

"The election if a candidate may be declared void on an election petition if is provided to the satisfaction of the Supreme Court that:

...

(e) There was such irregularity in the counting of votes as may be reasonably be supposed to have affected the result of the election."

42. This provision empowers the Court to declare an election void if there is an irregularity in the counting of votes. Proxy Applications are just that, they are applications only and not votes cast therefore they cannot be counted with the votes cast.

43. No evidence was put before the court if there were complaints from voters who turned up at polling stations on Maewo to vote as proxies but did not do so because of the absence of proxy applications. The answer to this issue is that there is no irregularity in the counting of votes and even if there is, the only relief sought on this petition relates to bribery not recounting of votes therefore the Petitioner is taken to accept the results of the votes cast which gives him 415 votes and the Fourth Respondent 424 votes.

Issue 3: Whether the Fourth Respondent committed bribery during the campaign period.

44. The findings on this issue are that the Fourth Respondent transferred VT34, 000 through Western Union to Basil Garae in payment of a debt for the use of Basil Garae's boat. Secondly Basil Garae gave Hedley Toa VT10, 000. This money was to be used by Hedley Toa to buy a pig to prepare a custom funeral feast to mark the occasion of the passing of his father. Furthermore, 2 bags of rice were given when the Fourth Respondent and his campaign team attended the funeral of a close relative of the Fourth Respondent as was the custom of Maewo.

45. I am satisfied that the VT10,000 even though it was given by Basil Garae and the giving of 2 bags of rice are matters related to aspects of Maewo custom and I adopt the views expressed by the Chief Justice in Salemalo v Tari [1998] VUSC 46 when he said the following:

"What the Representation of the People Act [CAP 146] forbids are corrupt practices, not compliance or performance of custom ceremonies. A genuine intention to perform a custom ceremony is not an intention to induce electors to vote or procure the election of a candidate and is not contrary to election laws. There is no law in Vanuatu which requires custom to be suspended at election time. A custom either exists or it does not. If it exists then it ought to be respected at all times. Any custom that can be ignored at will is meaningless.

.......

By virtue of Article 47(1) of the Constitution, the Administration of Justice is vested in the judiciary, who are subject only to the Constitution and the law. The function of the judiciary is to resolve proceedings according to law and law includes custom and Article 95(3) says that custom shall continue to have effect as part of the laws of the Republic of Vanuatu."

46. With regards to the giving of the VT 34,000 by the Fourth Respondent, section 61A states as follows:

"61A Cut-off date for using representation allowance, any money or donations in kind

(1) A candidate for election must not spend, allocate or otherwise disburse to the constituency in which he or she is a candidate, any money, whether in the form of:

(a) his or her representation allowance – if the candidate is a member of Parliament; or

(b) any money obtained from any other source of funding, whether in the form of:

(i) cash donations; or

(ii) donations in kind,

from the period commencing at the end of the life of Parliament or at the date of the dissolution of Parliament under subarticle 28(2) or (3) of the Constitution, to and including, the polling day."

(2) For the purposes of this section,

donations in kind includes, but is not limited to, food or food products, transport, transport fares, machinery, cooking utensils, building materials and furniture.

47. Section 61A forbids the giving of money in cash or donations in kind by a candidate to his constituency from the period commencing at the end of life of Parliament or at the date of dissolution of Parliament.

48. Subsection (2) defines donations in kind to include transport fares. On the balance of probabilities, I am satisfied that the Fourth Respondent's actions on 14th September 2012 in sending VT34, 000 to Basil Garae being for moneys owed for the use of his boat is in breach of Section 61A (1)(b) (ii) of the Act as by then the life of Parliament had ended.

49. In Sope v. Principle Election Officer Dawson J said that:

"The Act contains a protection from frivolous or minor breaches of the Act. If the Court finds that the Act has been breached on a balance of probabilities basis, it must then take the next step pursuant to Section 61(3)(a)(iv) and Section 61(3)(b) and decide that the breaches are of such magnitude that the result of the election was affected before declaring the election void."

50. The Representation of the Peoples Act as amended in section 61 (2) now states as follows:

"(2) Despite subsection (1) if on an election petition the Supreme Court finds that there has been a failure to comply with any provision of this Act, but the Court further finds that;

(a)It is satisfied that the election was conducted in accordance with the principles laid down in the Act; and

(b)such failure did not affect the result of the election

The election of the successful candidate is not to be declared void."

51. Having found that the Fourth Respondent's actions were in breach of section 61A 1) b) ii), I must then as the next step give consideration to section 61 (2). The evidence establishes that VT34, 000 was sent by the Fourth Respondent via Western Union to Basil Garae in payment of a debt. Even if it was also inferred that the Fourth Respondent also gave the VT10, 000 to Hedley Toa, this is not a case where as in Sope v Principle Election Officer it was found that the respondents and their agents bribed and treated widely throughout the electorate on an organized basis or as in Lop v Isaac where it was found that saucepans, spades and axes in large quantities were distributed extensively throughout the communities by the respondent and his agents before the general elections.

52. In these two cases the extent of bribery was so extensive that one could easily conclude that it had a big impact on the election results in favour of the respondents. In both cases the election of the Respondents were declared void. By drawing an inference from these two cases and applying section 61 (2), I am satisfied that the election in the Maewo constituency was conducted in accordance with the principles laid down in the Act and the Fourth Respondent's failure to comply with Section 61A (1)(b) (ii) did not affect the election results.

Conclusion

53. The only remedy sought by the Petitioner is for the Fourth Respondent's election to be declared void by reason of bribery. Having satisfied myself that the breach did not affect the result of the elections, the Petition fails and is hereby dismissed. The election of the Fourth Respondent is hereby confirmed and a certificate to that effect will be issued accordingly.

54. The Petitioner is hereby ordered to pay the First, Second, Third and Fourth Respondents costs to be taxed failing agreement.

DATED at Port Vila this 21st day of March 2013

BY THE COURT

D Aru
Judge