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Bae v Ramofafia [2019] SBHC 89; HCSI-CC 298 of 2019 (8 December 2019)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 298 of 2019

BETWEEN

ALLAN JOSE BAE
Petitioner

AND

REXON RAMOFAFIA
Respondent

Date of Hearing: 19, 21, 22 November 2019
Date of Judgment: 8 December 2019

Mr. C Hapa for the Petitioner
Mr. W Rano for the Defendant
No Appearance for Attorney General

JUDGMENT

Background

On 3^rd April 2019, registered voters in Solomon Islands went to the polls to elect members of the 11^th Parliament since the country’s independence from Great Britain in 1978. The Petitioner and the Respondent together with 6 others were candidates for one of 50 Constituencies in the country, the Fataleka Constituencies in Malaita Province. This was the first National General Election conducted under the Electoral Act 2018 which came into force on twentieth September 2018.

The Fataleka Constituency National General Election result was declared on 6th April 2019. The Respondent was declared winner out of a total of 8 candidates who contested the parliament seat for Fataleka constituency. He received a total of 2,628 votes, the runner up former Member of Parliament for the constituency Mr Steve Abana received 1777 votes while the petitioner collected 326 votes, 2302 votes less than the respondent.

The Election Petition

The Petitioner Mr Allan Jose Bae filed this petition under section 108 (1) of the Electoral Act 2018 as read with sections 5 and 6 of the Electoral Act Petition Rules 2019. Mr Bae complained that Hon. Rexon Ramofafia was not validly elected as a Member of Parliament for the Fataleka Constituency.

Allegations

In his Petition, Mr Allan Jose Bae alleged the respondent Rexon Ramofafia was by himself and his agents guilty of corrupt practices of fraudulent voting contrary to section 120 of the Electoral Act 2018. The particulars of the allegations are as follows;

(a) Ngiduimae Futai

• (i) On April 3, 2019, Rexon Ramofafia through the Returning Officer (Allan Sibolo) and their assistant (David Toeri) of Daringali Polling Station aided, abetted, counselled and procured Ngiduimae Futai to impersonate and vote at the election as and for Raymond Futai whose name appear in the register of voters for the said election but who did not vote;
• (ii) On April 3^rd, 2019, Rexon Ramofafia through the Returning Officer (Timothy Samani), Presiding Officer (Allan Sibolo) and their assistant (David Toeri) of Daringali Polling Station induced Ngiduimae Futai to vote in the Election knowing that such person were prohibited from voting by law in force.
• (iii) On April 3^rd, 2019, Rexon Ramofafia through Raymond Futai induced Ngiduimae Futai to vote in the Election knowing that such person were prohibited from so voting by law in force.

(b) Newton Billy

On April 3, 2019, Rexon Ramofafia through the returning officer (Timothy Samani, presiding officer (Allan Sibolo) and their assistant (David Toeri) of Daringali Polling Station impersonated Newton Billy whose name appear in the register of voters for the electoral district but who did not vote;

(iv) Timothy Samani, Allan Sibolo and David Toeri, by their conduct, were agents of Rexon Ramofafia.
(v) By reason of the matters set out above, the said Rexon Ramofafia was and is incapacitated from serving Parliament, and the said election and return of the said Rexon Ramofafia were null and void.

The Petitioner seeks orders the following orders

1. Rexon Ramofafia (the respondent was not duly elected or returned and his election is void; and
2. The respondent to pay the petitioner's cost.

The Standard of Proof

At the outset, I remind myself that the onus of proving the allegations is on the petitioner and he must do so on the required standard. The standard of proof in petition cases was discussed in a number of cases previously by this court, see Maetia v Dausabea^[1], Tegavota v Bennet^[2] I feel it is not necessary to dwell on the issue at length suffice to say that the standard is higher than the civil standard but fall short of the standard of proof in criminal cases.

The Petitioners Evidence

The petitioner called a total of 11 witnesses to give evidence in support of the allegations, all have previously filed sworn statements and gave oral evidence at the trial. The evidence adduced by the first two witnesses for the petitioner were in regard to an alleged incident at Onelafa Polling station but wrongly stated in the petition as Doringali polling station. I believe there were typing errors in the allegations, the allegations (i) (ii) (iii) should be in respect of Onelafa Polling station, there was a mix up of names of the Polling stations

Two witnesses Helen Fatangasi and Norman Deves in their evidence try to establish that one Ngiduimae Futai voted at Onelafa polling station under the name of his brother Raymond Siau. The evidence shows that Raymond Siau’s name appears on the final voter's list for Onelafa Polling Station as Rayman Mesach Siau. The evidence of Hellen Fatangasi in this regard was all hearsay and court cannot rely on such evidence. Norman Deves was a polling agent for the petitioner at Onelafa Polling Station. His evidence was that he saw Ngiduimae Futai voted at Onelafa polling station. He was, however, unable to show that he voted under the name of his brother or that he was abetted, counsel or procured by the respondent to vote. He intended to produce a purported recorded mobile phone conversation he said he had with Raymond Futai. Counsel for respondent objected to this and the objection was upheld by the court for the reason that such evidence should properly be introduced by the mobile phone service provider or admitted by consent under section 21 of the Evidence Act 2009. No steps were taken to do this. The court, therefore, refused to admit the purported recorded telephone conversation.

In Alagere v Reginam [2015] SBCA 22; SICOA-CRAC 7, the Court of Appeal with regard to admission of mobile phone conversation said, The proper way, in our view, for the material to have been introduced in a trial was for a representative of the mobile service provider to have given evidence, either through an agreed statement producing the record or if necessary, by giving evidence.

Analysis of the evidence

All the witnesses for the respondent denied the allegations against them, they do not have to exonerate themselves because the onus is on the petitioner to prove the allegations. I had considered the evidence in support of the allegation but I am not satisfied they proved the allegations against the respondent witnesses. Even if I accept the evidence that Ngiduimae Futai voted at Onelafa polling station there is no evidence of aiding, abetting, counselling or procurement or inducement by the respondent Mr Rexon Ramofafia or the election officials as alleged. There was also evidence that election officials were supporters of the respondent.

With regard to the allegation regarding the alleged incident at Daringali Polling station in relation to impersonation of Newton Billy there was no evidence it actually occurred as there was no evidence that Newton Billy was a registered voter at Daringali Polling Station. The final list of electors was not produced to prove that Newton Billy was a registered voter at Daringali Polling Station. There was also no evidence of aiding, abetting, counselling or inducement by the respondent or the election officials.

Again even if the incident actually happened there is no evidence that it was done at the instigation, inducement, procurement or with the knowledge of the respondent Mr Rexon Ramofafia or by his supporters. Further, there is also no evidence to show that the returning officer Allan Sibolo and other election officials mention in the allegation were agents or supporters of the respondent neither was there any evidence to prove the allegation of aiding, abetting, counseling or undue influence. I had considered the rest of the witnesses for the petitioner’s evidence but they add no weight at all to the petitioner’s case as they do not prove any of the allegations.

Consequence of Fraudulent voting, Election Bribery, and Undue Influence.

All the allegations against the respondent are offences under sections120, 126 and 127 of the Electoral Act 2018 consequences for which are set out in 129 of the Act. Section 129 states as follows;

This section applies if a person is convicted of any offences against:

• (a) Section 120 (fraudulent voting)
• (b) Section 126(election bribery)
• (c) Section 127 ( undue influence)

(2) The person is disqualified for 5 years from the date of conviction

• (a) from being registered as an elector; or
• (b) from voting at an election; or
• (c) from being elected as a member of parliament.

Section 129 sets out the consequences for breaches of any of the provisions of 120, 126 and 127 of the Act, but provide no provisions for the court to nullify an election except to find a person guilty of any of the offences under section 120,126 and 127 and disqualify him thus rendering him ineligible as candidate for election from the date of conviction. Since I made no finding of guilt on part of the respondent under these provisions I say no more on this.

Burden of Proof

The burden, however, lies with the petitioner to prove each and every element of the allegation as particularise in the allegations outline at paragraphs (i) (ii) (iii) (iv) and (v) of his petition. In this respect, I had considered the evidence before the court and found no evidence connecting the respondent to the alleged corrupt or fraudulent voting. There is not one iota of evidence to show the respondent aided, abetted, counseled or procure any person to vote or refrain from voting or connected him to the persons alleged and named in the allegations. I need not say more on the evidence before the court but would now turn to another issue which emerges during the trial and admitted by the petitioner in his oral evidence.

The petitioner not signing the petition.

The petitioner admitted in his evidence that he did not sign his petition as he was in Auki and could not make it to Honiara. It is obvious his legal representative Mr Harper signed the petition on his behalf although Mr. Harper stated in his submission he signed the petition but not in his incapacity as legal representative but as personal representative. Whether he signs as a legal representative or as personal representative makes no difference. Rule 6 (4) of the Election Petition Rules stipulated as follows “The petition shall be signed by all petitioners”. There is no ambiguity as far as the wordings of the rule is concern. Since there is no ambiguity the words must be given their natural and ordinary meaning. In this regard, I consider Mr Harper’s submission regarding Rule 49 of the Electoral Act Petition rules 2019 and section 52 of the Constitution is irrelevant.

The phrase “the petition must be signed by all the petitioners” can only mean where the election petition is filed by more than one petitioner they must all sign the petition and where there is only one petitioner as in this case, he must sign the petition himself. His legal representative or anyone else cannot do it on his behalf. The Election petition rules are made by the Chief Justice under the powers conferred by section 111(3) of the Electoral Act 2018 and such, has the same force of law as the Act itself.

There was a same provision in the now repealed Election petition rules 1976. The wordings of Rule 4 (3) of the 1976 rules were exactly the same as present rule 6(4). The provisions of the Election Rules 4(3) of the 1976 rules were considered in the case of Alfred Sasako, Willy Mete v Stanley Festus Sopu and others CC 454 of 2014. In considering the wordings of rule 4(3) which states “the petition shall be signed by all petitioners” Faukona J in dealing with the issue referred to a number of English cases, Public Prosecution v Oie Hee Koi^[3] Secretary of State v Warn^[4] and Dales^[5] and states “ Those cases illustrate that procedural requirements are mandatory when related to court proceedings. Non-compliance with such would be fatal to the proceedings”

Conclusion

The petitioner’s failure to personally sign the petition was known to the petitioner's counsel but was not disclosed nor raised during the preliminary hearings before the Chief Justice. This only came out during cross-examination at the trial. Following this counsel for respondent made objection but I ruled that the trial must proceed and that I will make my ruling at the end of the trial. That I now do. I am of the view that the petitioner’s failure to personally sign the petition as a matter of law is fatal to the petition. I think the failure to personally sign the petition would have the same effect as filing a petition out of time. In this respect, it is unnecessary to make any further discussion or findings on the evidence than I have already done but to dismiss the election petition forthwith for failure to comply with rule 6(4) of the Electoral Act Petition Rules 2019 and for insufficient evidence to support and prove the allegations. I declare that Mr. Rexon Ramofafia was validly elected as Member of Parliament for Fataleka constituency.

Declarations

In accordance to section 111(5) of the Electoral Act 2018 read with rule 35(1) of the Electoral Act Petition Rules 2019, the court will give a certificate of its decision on this petition to the Electoral Commission, the Governor General and the Speaker of Parliament in due course.

Orders

1. The Election petition is dismissed.
2. The petitioner is to meet the respondent’s cost to be taxed if not agreed.

The Court
Justice E Kouhota
Puisne Judge

^[1] [1993]SBHC 29
^[2] [1983]SILR 34, HCSI, Civil Case No. 104 of 1983
^[3] [1968] AC 829
^[4] [1970] AC 394
^[5] [1881] UKLawRpKQB 8; [1881] 6 QBD 376