Holosivi v Vahoe [2008] SBHC 101; HCSI-CC 223 of 2006 (13 February 2008)

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DAVID HOLOSIVI, REGINALD APIA, DAVIDSON ALAKI POULA GABRIEL KEMAKI, LEVI APUNA, HENRY MANUEHA AND JOHN APO
Petitioner

Date of Hearing: 29 July 2007, 13 August 2007, 5 September 2008 and 14 October 2008
Date of Judgment: 13 February 2008

B. Titiulu for the Petitioners
M. Bird for the 1st Respondent
D. Damilea for the 2nd Respondent

Faukona, J: The Petitioners filed an election petition in this court pursuant to Section 83(1) of the National Parliament (Electoral Provisions) Act hereinafter called the "Act" Cap. 87, and in conjunction with the Election Petition Rules 1976, hereinafter called the "Rules".

On the 5th of April 2006 a National General Election was held in Solomon Islands. The Petitioners together with the 1st Respondent were the candidates contesting the Malaita Outer Islands Constituency. After counting of votes on 9th April 2006, the Returning Officer declared and returned the 1st Respondent as being duly elected. The Election results were as follows.

Nos.	Candidates	No of Votes
1.	Patrick Vahoe Junior	352
2.	David Holosivi	299
3.	Reginald Apia	175
4.	Davidson Alacky	140
5.	Levi Apuna	94
6.	Henry Manueha	93
7.	Gabriel Kemaiki	69
8.	John Apo	59

From the election results the 1st Petitioner polled a majority difference of 53 votes from the closest runner up.

That the Respondent personally and by is agents mention Makolo, Billy Asoa, Ezekiel Teusa, Philip Auhuki, and Mrs. Abel Makui, guilty of corrupt practices of procuring the Commission of the offence of bribery, treating and untrue influence before, turning /or after the said election, contrary to the provisions of Sections 66, 71(c), 71(b) and 73 of the National Parliament (Electoral Provisions) Act, in that the said 1st Respondent and his agents procured voters in Malatia Outer Island Constituency to vote for the 1st Respondent.

The Petitioner also stated that in holding of the said election diverse breaches of the statutory rules governing the conduct of the election were committed by the Returning Officer.

By reason of the matters set out in the petition, the Petitioners pray that the 1st Respondent is incapacitated from serving in the National Parliament and may be determined that he was not duly elected or returned and that his election was void.

The 1st Respondent denies each and all the allegations made against him by the Petitioners and Patrick Apua. He admits spending a total sum of $10,000.00 as election expenses.

The 2nd Respondent denies all the allegations levelled against him as a Returning Officer by the Petitioners. He further denies the allegations raised by Mr. Apua or any of the Petitioners witnesses who may have implicated him involved in any corrupt practices during National General Election for Malaita Outer Island Constituency.

Section 9 of the Act sets out the general over view of the non-compliance with the Act. It states:-

"No election shall be invalid by reason of non-compliance with this Act if it appears that the election was conducted in accordance with the principles of this Act and that the non-compliance did not affect the result of the election".

Section 71 of the Act sets out various forms of bribery of which a person may be found guilty of. Paragraph (a) defined an appropriate act of bribery alleged, and it reads;

"Any person who directly or indirectly, by himself or by any other person on his behalf, gives, lands or agrees to land, offers, promise or promises to procure, any money or valuable consideration to or for any elector to or for any person on behalf of elector, or to or for any other person, in order to induce such elector to vote or to refrain from voting, or corruptly does any such act as aforesaid on account of any elector having voted or refrained from voting at any election".

Section 72 set out various forms of treating. The appropriate one defined in paragraph (1) (a) and reads;

"Any person who corruptly, by himself or by any other person, either before, during, or after an election, directly or indirectly, gives, or provides, or pays, or promises to give, provide or pay, wholly or in part, the expenses of giving food or providing food, drink, entertainment or provision to or for any person, for the purpose of corruptly influencing that person, or any other person, to vote or refrain from voting at such election or on account of that person or any other person having voted or refrained from voting at such election".

"Any person who directly or indirectly, by himself or by any other person on his behalf, makes use of, or threatens to make use of, any force, violence, or restraint, or inflicts or threatens to inflict, by himself or any other person, any injury, damage, harm or loss, upon or against any person, in order to induce or compel such person to vote or refrain from voting, or on account such person having voted or refrained from voting at any election, or who, by obstruction, duress, or any fraudulent contrivance, impedes or prevents the free use of the vote by any elector or thereby compels, induces or prevails upon an elector either to give or refrain from giving his vote at any election shall be guilty of undue influence within the meaning of this Act".

Section 70 provides penalty for any person found guilty of bribery, treating or undue influence; and it reads;

"Any person who is guilty of bribery, treating or undue influence shall be guilty of corrupt practice and liable to a fine not exceeding two hundred dollars or to imprisonment for a term not exceeding six months or to both such fine and such imprisonment".

Section 66 (1) expressly stated any corrupt or illegal practices committed by an elected candidate or his agent will render the election invalid.

What is corrupt or illegal practice? Halsbury’s Law define clearly on page 419 Vol. 15;

"Corrupt imports intention, does not mean wickedly, immorally or dishonest, or anything of that sort, but doing something knowing that it is wrong and doing it with the object and intention of doing that thing which the statute forbid".

In the case of Alisae v. Salaka[1] Wood CJ set down the criteria to prove treating as an act of corruption:-

"Corrupt means doing the things which the legislature forbids. The question whether the intention was to influence the vote must depend upon circumstances and the manner in which refreshment was given, the time it was done and very upon the nature of the entertainment".

Again on paragraph 2 Wood CJ distinguished the act of treating from the act of bribery, he said;

"There is a clear distinction between treating and bribery in two respects, first as it affects the candidate, and secondly its facts the voter. In bribery there must exist a corrupt arrangement, but not so in treating, where votes are sought by a display of generosity".

"However, the fact of the giving of the bribe or and agreement to give or to offer the bribe or the promise to procure the bribe must be established by evidence. There must be giving of the bribe or an agreement to give the bribe or a promise to procure the bribe for the purpose of inducing a voter to vote or not to vote".

Where allegation of corrupt practices is raised in an election petition case, the test to be applied had been finally settled in the case of John Maetia v. Charles Dausabea, which Lordship Sir John Muria CJ stated;

"From these observations, I am of the view that the test in Alisae v. Salaka is the test to be followed in Solomon Islands when allegation of corrupt practices as bribery, treating or undue influence are raised in an election petition. That required standard of proof is stricter in that the allegation must be proved to the entire satisfaction of the court. The evidence must be clear and unequivocal in order to enable the court to be entirely satisfied that the allegation of corrupt practices is made out and not simply on the mire balance of probabilities which is a test that is appropriate to the other allegations of breaches of the election laws".

The test is higher that the normal civil test and lower than the criminal test. It is a mid way test that require the court must be satisfied to its entire satisfaction. The test has been adopted in Gigini v Notere and Maina v. Magga, and many more other cases.

On the ousted, though Section 2 fails to define the words "corrupt" or "illegal" practices, Section 70 expressly stated that any person who is guilty of bribery, treating or and undue influence shall be guilty of corrupt practices. Clearly, the words corrupt means bribery, treating and undue influence.

Upon reading of Section 9 which clearly states that non-compliance with the Act (including sections that create the election offences) will not invalidate the election unless the non-compliance affect the result of the election. On the other hand Section 66 clearly states that any corrupt or illegal practices committed by a candidate or agent will render the election invalid. For our purpose corrupt or illegal practices are specific acts operated under the non compliance act. In my view, any candidate or agent committed corrupt or illegal practise, simply did not comply with the Act. For an election to be invalid, corrupt or illegal practices which overally a non compliance with the Act, most affect the result of the election. Any non compliance, corrupt or illegal practices which do not affect the result of the election cannot invalidate the election, but a person may be guilty under Section 70 of the Act for corrupt and illegal practices.

The petitioners case is that on 5th April 2006, at Sikaiana Mr. Teusa who was a nominator of the First Respondent received instructions to supply food to the voters who congregated at the front of his shop. Godwin Tesimu, the only witness called by the Petitioners said that whilst walking to the Polling Station, the morning of the election date, he met Mr. Teusa who told him that he was instructed to supply food to the people gather at the front of his shop. He also saw people eating food and drinking tea. Above the voters, on the wall of Mr. Teusa shop was a picture of the First Respondent. After eating ad drinking people would proceed to cast their voter at the Polling Station. He estimated that there were more than 20 people but could only recognized two persons Mr. and Mrs. Taukolo. He recognized others but could not specify their names.

No evidence was advanced by the First Respondent to rebut Mr. Tesimei’s evidence. But that does not means because of lack of rebuttal evidence I will accept Mr. Tesimei’s evidence completely. I have to consider whether the giving (providing for food) was to influence the voters in that circumstance, and the manner in which the food and tea was given, the time it was done, and the nature of the food.

Firstly, Mr. Tesimu attempted to convince the court to belief a conversation Mr. Teusa had with the 3rd person who directed Mr. Teusa to provide food for the voters. That conversation was never heard by Mr. Tesimu. Mr. Tesimu’s attempt to convince the court of that conversation relayed to him Mr. Teusa is hearsay evidence which I will not accept.

How credible liar Mr. Tesimu’s unchallenged evidence. I noted that the food and tea was provided on the morning of the election date. Mr. Tesimu said he saw more than 20 people eating and drinking tea provided by Mr. Teusa. However Mr. Tesimu could only recognized and named two persons out of more than 20 people. When he could not name them. Were those people gathered at Teusa’s shop from Honiara, and we returning home for election, or were they villagers from Sikaiana who dwell at home. If Mr. Tesimu is an ex – Police Office Officer and had been living on Sikaiana Island, then he is expected to name a dozen or more of these who gathered and consumed food and tea, provide by Mr. Tesimu. Notably Sikaiana Island is small and has only one village, and every body know each other by name.

Mr. Tesimu also stated he heard someone said the food you eat was paid for by First Respondent. He also stated that he heard someone said they should vote for the man on the poster. As he stated he was quite closed to where the people gathered and they were gathered in an open hut. If he could see people gathered, he could also see and hear who actually spoke those words. Or he might recognize the voice. In a small Community where every body recognizes each others, voice can easily identified a person.

The foods that were consumed were rice, taro, taiyo and coffee, and it was consumed on the morning of the election date. These were no actual political campaign. The two voices mentioned by the witness indicating the name of the First Respondent as being the provider of the food was not identified, neither the voice which made reference to the First Respondent’s poster on the wall to be voted.

The standard of proof is that the allegation must be proved to the entire satisfaction of the court. So far as this witness is concerned I am not satisfied to my entire satisfaction. The food may be offered on the morning of the election date, not evidence in regards to the number of people gathered which in this case only two, and the voices which the witness cannot identify which intended to influence the voters are unsatisfactory. Two identified voters influenced by the alleged treating cannot in anyway affect the result of the election.

The Petitioners alleged that Mr. Kemokua gave a bag of rice and a bag of sugar to John Lome and bags of Taro to Mrs. Keioi told both to vote for the First Respondent. Mr Kemekua also promised Mr. Lame that he would received a solar panel should he vote for the First Respondent.

Mr. John Lame the only witness testified and confirmed the actions of Mr. Kemekua. He shared the food to 3 others and relayed the message to vote for First Respondent. I noted Solar Panel and root crops are valuable to the people of Lord Howe Atoll Islands. Given the fact that root crops are scarce and not readily available at all times. And of course Solar Panel is useful item for domestic lighting.

Despite these was no rebuttal evidence, advanced by the First Respondent. The giving of food may be true so far as Mr. Lare but not bags of taro to Keioi. She was not called to give evidence that she received. Mr. Kemekua according to the witness a businessman in Honiara and a supported of the First Respondent. If the giving is true and the promise words are truly conveyed who is eventually influenced the four voters to vote for the First Respondent, can their vote turn the tide and influence the result of the election. I do not think so. I am not satisfied on the evidence advanced to prove this allegation.

The Petitioners alleged that Billy Asoa an agent of the First Respondent had due influence on one Kunakagi who had $70,000.00 debt with Asoa’s business, and that the debt will be cancelled if he voted for the First Respondent. The undue influence extended to include those who had debt with Mr. Asoa’s business.

Mr. Kumakegi was called as a witness. He stated and confirmed that he had a conversation with Billy Asoa. Mr. Asoa told him that if he voted for the First Respondent his debt of $70,000.00 be cancelled. He told other persons of the arrangement.

Mr. Asoa according to evidence was a nominator of the First Respondent. He runs a retail business in Pelau, Lord Howe, selling merchandise goods and petrol. And there is a no dispute he is an agent or nominator of the First Respondent.

According to evidence Mr. Kumekagi because of the influence noted for the First Respondent but did not know who the other two voters voted for.

The second witness on this point Mr. Asau said the conversation about cancellation of debts in Asoa’s business if the First Respondent won the election is a general conversation. He himself voted for Mr. Livae, one of the candidates.

The First Respondent denies cancellation of debts in Asoa’s shop if he wins. However, Mr. Asoa was not called as a witness, hence, the evidence of Mr. Kemakegi and Mr. Akau has to be assessed on their merits.

It appears undisputed that Mr. Asoa was one of First Respondent’s nominators. He was a village businessman based at Pelau village, Lord Howe Islands. Mr. Kumekagi had incurred debts from Asoa’s shop since 2002, and by 2006 his debt amounted to $70,000.00. Mr Kumekagi also stated that, not only his debt be cancelled but others as well. He did convey the message to two of his friends.

In rural Solomon Islands a debt of $70,000.00 by a single customer from a rural shop is truly a large sum of money. How much more would other customers owe. To cancel such debt for return of three votes is ridiculous. It may mean a total close down of business. I agree with Mr. Akay that the conversation about cancellation of debts ere general conversation. Simply it was far from the real truth. He himself voted for another candidate.

However, whether the undue influence has merited any logic or not, it did induce Mr. Kemakagi hence voted for the First Respondent. Two others whom Mr. Kemakagi had informed of the debt cancellation could not be ascertain as to which candidate they voted.

If such undue influence is true, can un inducement of a single vote alter the result of the election. That is impossible. You add the vote two at Sikaiana and four at Lahuangi still fall short. I am not satisfied to the test that this allegation has been proved, therefore must be dismissed.

There are a number of allegations against the Returning Officer for the Malaita Outer Islands Constituency, and the Sikaiana Presiding Officer, in regards to the manner in which they had conducted the elections.

There are seven allegations altogether. However, the Counsel for the Petitioners in his final submissions did not make any written submissions to cover six of the allegations. He merely concentrated on one allegation, that is, the unlocked ballot box from Sikaiana. I therefore presume that the six allegations left without any submissions had been abandoned.

Final written submissions are very significant; in that they allow Counsels to assess and reinforce the strength of their evidence as against the others. It also assists the court in its final analysis of the entire evidence adduced before it. In the absence of such the Court is left in a very awkward state. Let me reiterate that one of the cardinal functions of the Counsels as to assist the Court, as much they can, to enable the Court sufficiently decide on the issues that are brought before it.

In this case let me deal with the Sikaiana unlocked ballot box. The ballot boxes used in 2006 National General Elections were designed to have a lock, and can be opened by a key. The ballot box used in Sikaian Polling Station also had the lock designed. However, after the close of the polls the box was secured and sealed by using wax. When it was opened by the Returning Officer in the counting day, the key was found affixed to the cover of the box.

Two witnesses adduced evidence to the incident. Mr Apua was called by the Petitioners and Mr. Nuia (the Returning Officer) was called by the Respondents. These was no dispute that the ballot box was sealed and secured by using wax, and was not opened by using a key. There was no dispute that it was not the authorized box, though it had lock and key.

The question is, in the light of the fact that the ballot box was not secured according to instructions, had it been tampered with. Mr. Titiulu pointed out six risks associated with a ballot box that was not properly secured. Upon assessing those risk I am able to conclude that they presumptive risks. There is no evidence which led the Court to belief that there was actual tampering with box itself. Mr. Nuia confirmed in evidence that these was no sign mark on the wax that implicated physical attempt or actual tampering with the ballot box. There was no scratch marks, no cracks and nothing whatsoever. Presuming the likelihood of a risk occurring without any proven evidence render insufficient evidence to prove the allegation.

I accepted that Presiding Officer in Sikaiana had breached instructions and training provided. However, is if massive error or the administration of election material that will affect the result of the election. Or by extension include the non compliance with S.59 (1) of the Act by the Retiring Officer for not ensuring the safe custody of all election documents properly secured. The incident at Sikaiana was an isolated incident which did not involve the Retiring Officer. He had done his part giving instructions and training to his presiding officers. I find S.5G (1) was not breached by the Returning Officer at all.

Having said that are not notified on the evidence that they sufficiently proved that the Sikaiana Ballot Box was indeed tampered with. That non compliance by the Presiding Officer could not in any way possibly affect the result of the election.

It was alleged that the Returning Officer permitted cargoes on M.V Nonano belonging to the First Respondent which was distributed to the voters in Sikaiana, Pelau and Luaniua.

The Petitioners select Job Akau, a school teacher at Pelau Primary School. He said he came to Honiara on 6th March 2006. He went to Electoral Commission’s Office and spoke to someone dark in skin about the boat chartered by the Electoral Commission’s Office. He was on the boat and saw four drums of petrol delivered to be transported to Lord Have. He asked the engineer who owned the drums. He was told that they were owned by Electoral Commission.

The arrival of Pelau he saw the drums transported to Billy Asoa’s place. He also said that no fuel was distributed except food.

The 1st Respondent denied this allegation that he sent the cargoes purposely to distribute to the voters. Mr Nuia, the Returning Officer admitted in his evidence that he allowed cargoes on board for humanitarian reasons. I accepted Mr Damilea’s submission summing up Mr Nuia’s reasons. That some Sikaiana people were eligible voters who desired to cost their votes, and the Cargoes were allowed due to usual shipping difficulties to Sikaiana. Mr Akau confirmed when was examined. That trial was the only ship that scheduled to Sikaiana and Lord Howe for the month of April 2006. There were no other ships scheduled to travel there.

I accepted Mr Nuia’s explanation and his reasons for admitting cargoes to be shifted on board. There is no evidence that the fuel were distributed to tribe voters. There is no evidence specifically identify who distributed the cargoes and who receive them. And whether upon distribution words were said, to the effect, to reduce a person to vote for particular candidate.

I find there is no evidence to prove this allegation therefore must be dismissed.

In respect to bags of taro taken from Sikaiana to Luaniua and Pelau for the same purpose, which was allowed on board, I accept for the same reason as advanced by Mr Nuia and summed by Mr. Damillea that they for humanitarian grand. That bush gardens in Luaniua and Pelau were damaged by tidal waves and the bags of taro allocated to serve those people-: their need. I accepted Mr Niue’s denial that he had no knowledge that these bags of taro will be used to tribe voters.

Eventually some bags of taro were used by Mr Kenakua to give to Mrs Keios: I have dealt with the allegation at Lahuangi. Mrs Keios was not called as witness to confirm she received the bags of taro. Plainly this allegation is not proved and must be dismissed.

There was also allegation questioning why pencil was use to mark a certificate of votes choice. Mr Apua caused the questioned in his evidence. A clear explanation was told by Mr. Damilea in his submission that pencil mark was universally used in 2006 National General Election and no exception to Malaita outer Islands constituency.

Next the question why counting was done at Pelau. The previous general elections counting were normally done at Launiua village. The Returning Officer in his evidence explained plainly that there was an Email at Pelau and not at Luaniua. As required as less results came out he would Email Electoral Office immediately in Honiara, about the results. Obviously the Returning Officer’s decision was the most relevant decision anyone could make in the circumstance. I find these are no irregularity or no compliance exerted. In fact the Returning Officer was complying with Section 43 paragraph (h) which says, "the Returning Officer shall do such other acts and things as may be necessary for conducting the election in the manner provided for in this Act".

Again allegation that no counting agent be allowed closer to the counting table. They were told to stay out 5 metres away. Mr. Apua confirmed this in his evidence. However, Mr. Damilea in his submission point the picture was clearer. That counting agents to stand at least 5 metres away. It was required under Section 49 of the Act which clearly stated,’’...The Returning Officer and any Assistant Returning Officer, while counting and recording the number of ballot papers with their faces downwards and take all precautions preventing any persons from seeing the numbers printed on the front page.

I agree with Mr. Damilea that it is a secret ballot, and 5 metres at least, is a reasonable distance allowed for counting agents to stand or sit.

Final allegation which I’d like to deal with, which was not covered by the Counsel for the Petitioners in his written submissions was an allegation of feasting at First Respondent’s father-in-law’s house, at Luaniua.

Mr. Apua stated in Court that there were feasting hosted by the First Respondent and his father-in-law at the in-laws house. They were held on 4-5th April 2006 and on 7th April 2006. Mr. Apua told the Court that he saw a lot of people gathered about 60-80. Those who gathered were relatives and friends and mostly young people. When he was cross examined if someone campaigned during feasting, he denied hearing anyone campaigning.

The First Respondent’s version of people gather was that these were quite a number of relatives living in Honiara who went home (Luaniua) to cast their vote. And they were living with him in his father-in-law’s house. He had to provide for them as they were living together. He did not deny that other relatives from hoe also joined them. Of course he and his father-in-law had to provide something fro them. However he denied campaigning during those occasions, and that was supported by Mr. Apua. Those who gathered were just relatives and no other.

I accepted the First Respondent’s version that he carried the onus of providing for elatives for those days whilst awaiting election and after election before returning to Honiara. In Solomon Islands Politics your relatives are your foundation for wherever one intended to run for any election. They will be close by you at all times. There is no need to bribe them; there is no need to campaign to induce them. They are your founding supporters. Of course when they gathered in your house it’s an allegation you have to feed them.

I find the evidence in support of this allegation does not convince me. I am not satisfied to the test, therefore must be dismissed.

Having said that, the Petitioners have failed to slow by way of evidence and adequately prove the acts of bribery, treating, undue influence and breaches of statutory provisions. The evidence available is insufficient to prove to the level required by law, above the balance of probability and below reasonable doubt. Not only that I find there is lack of evidence, but the petitioners have to slow that the allegations must affect the result to an extent that the First Respondent could not have been a winning candidate in the election. Even if some allegations are proved, as I have discussed above, only seven voters were induced, and seven voters cannot change the majority of fifty-three votes.

I therefore dismissed the entire petition with costs be paid to Respondent’s Counsels, and I shall certify to the Governor-General that Patrick Vahoe Junior was lawfully elected Member for Parliament for Malaita Outer Islands Constituency.

High Court of Solomon Islands

Holosivi v Vahoe [2008] SBHC 101; HCSI-CC 223 of 2006 (13 February 2008)