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Sasako v Sofu [2020] SBHC 7; HCSI-CC 277 of 2019 (17 February 2020)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 277 of 2019

BETWEEN

ALFRED SOLOMON SASAKO
Petitioner

AND:

STANLEY FESTUS SOFU
First Respondent

AND:
ATTORNEY GENERAL
(Representing the Returning Officer for East Kwaio Constituency)
Second Respondent

AND:

ATTORNEY GENERAL
(Representing the Presiding Officer for East Kwaio Constituency)

Date of Hearing: 21-22, 24 January 2020
Date of Judgment: 17 February 2020

Mr. R Firigeni for the Petitioner
Mr. J Apaniai for the First Respondent
Mr. S Banuve (Solicitor General for the Second and Third Respondents and amicus curiae

JUDGMENT

Palmer CJ:

1. The election petition filed 17 May 2019 by the Petitioner, Mr. Alfred Solomon Sasako (“the Petitioner”) against the First Respondent, the Hon. Stanley Festus Sofu, and the Second and Third Respondents represented by the Attorney-General, alleges six separate grounds as follows:
   • (1) Allegations of bribery by giving of cash. These consist of six instances of bribery by cash and are set out in the particulars in the Petition from paragraphs 5 (a) – (f).
   • (2) Allegation of bribery by promise of paying school fees. This consists of one instance of a promise of payment of money in exchange for vote.
   • (3) Allegations of fraudulent voting. Two instances of fraudulent voting are set out in the Petition. The first one raises two allegations as follows:
     • (a) that a number of persons who had died prior to April 3, had their names ticked as having cast their votes in the Election; and
     • (b) a number of persons not present at the Osianabata polling station had their names marked as having voted.

The second instance alleges that at Lagefasu polling station, the presiding officer issued two persons not on the elector’s voters list with ballot papers to cast their votes for the first Respondent.

• (4) Allegations of interfering with voters. Four instances of interfering with voters is set out in the particulars.
• (5) Allegations of undue influence. Three instances of undue influence are set out in the particulars.
• (6) Allegations of non-compliance with the Electoral Act 2018. Two instances of irregularity were raised in the petition.

2. On or about 4^th July 2019, an Amended Petition was filed which contained further changes and amendments to the Petition. I do not need to set these out in detail for there was an application before the commencement of the trial for withdrawal of a substantial part of the Petition.
3. The effect of the application for withdrawal meant only grounds 5(a), (b) and (c), being allegations of bribery by giving cash, and ground 5(a), being an allegation of bribery by promise of payment of school fees, remained, the rest of the grounds were withdrawn.
4. The application was granted as sought as the Respondents did not object. I thank the Solicitor General and Counsel for the Petitioner, for their hard work and effort in agreeing to that course of action after due consideration of the grounds in the Petition and thereby not only reducing the number of grounds but also saving much court time and expense in not having to address those issues in what could have been a protracted petition trial.
5. As at the commencement of the trial therefore, the following allegations were heard. I set these out in full herewith.

1. PARTICULARS OF BRIBERY BY GIVING CASH.

(a) On an unknown date, between the month of March 2019 and April 2019, at Na’au village, ward 17, East Kwaio Constituency, Mr. Henry Belo, a strong support (sic) and or agent of Hon. Stanley Festus Sofu, gave $200.00 in cash to Mrs. Naomi Doania, a registered voter in the said constituency, to induce her to vote for Hon Stanley Festus Sofu, which he (sic) did voted the same.
(b) On or about December 2019, at Hutuna village, ward 17, East Kwaio constituency, Mr. Cedric Fisango, a strong support and or agent of Hon Stanley Festus Sofu, gave $100.00 in cash to Mr. Samson Ubunifafilamo, a registered voter in the said constituency, to induce him to vote for Hon Stanley Festus Sofu.
(c) On or about December 2019, at Hutuna village, Ward 17, East Kwaio constituency, Mr. Cedric Fisango, a strong supporter and or agent of Hon Stanley Festus Sofu, gave $100.00 in cash to Mr Lawrence Lekafia, a registered voter in the said constituency, to induce him to vote for Hon Stanley Festus Sofu.

2. PARTICULARS OF BRIBERY BY PROMISE OF PAYING SCHOOL FEES.

(a) On the election day, 3^rd April 2019, at Na’au village, ward 17, East Kwaio Constituency, Henry Belo, a strong supporter and or agent of Hon Stanley Festus Sofu, promises Mr. Peter Nafaka, a registered voter in the said constituency, that Hon Stanley Festus Sofu will pay his school fees at Waneagu Community High School, even if Hon Stanley Festus Sofu loses the election, to induce him to vote for Hon Stanley Festus Sofu. He did voted for Hon Stanley Festus Sofu at Na’au polling station.

Ground 1. Allegation of bribery of payment of $200.00 cash to Mrs. Naomi Doania.

6. The Petitioner relies in support of this allegation, on the sworn statement of Mrs. Doania filed 16 July 2019. This is marked Exhibit 5, in the list of exhibits filed in Court.
7. The evidence contained in that sworn statement states that on or about February 2019, Mr. Henry Belo (“Mr. Belo”) called Mrs Doania to his kitchen and gave her $200.00 cash with words to the effect that the money was from the First Respondent and given to those who are poor. She states that she accepted the money but was surprised because it was the first time in four years that she had been given such money.
8. In his submissions, Mr. Firigeni of Counsel for the Petitioner, submits that it is immaterial there was no specific word or instruction from Mr. Belo to the effect that Mrs. Doania should vote for the First Respondent. He says that the Court should draw an inference from the fact of giving as conferring an obligation on the recipient to reciprocate and to draw a conclusion that the giving was done with intention to influence her to vote for the First Respondent.
9. He also submitted that there was additional evidence adduced in court which showed that Mr. Belo had sought to give her a T-Shirt as part of the First Respondent’s campaign and that this is further evidence of agency.

Submission of the First Respondent

10. In his submissions, Mr. Apaniai of Counsel for the First Respondent challenges this allegation on two fronts. First, that the particulars set out in the pleadings are insufficient and secondly, even if it was considered sufficient, the evidence did not support the allegation and therefore should be dismissed.
11. Learned Counsel also raised objection to new evidence being introduced by this witness. He submits the court should not allow such evidence as this had taken the First Respondent by surprise, had been ambushed and did not have time to prepare or to respond by way of sworn statement in reply. He says this is unfair and prejudicial to his client’s case and the Court should not allow such evidence to be admitted.

The offence of bribery.

12. The offence of bribery is set out in section 126 of the Electoral Act as follows:
    • “(1) A person commits an offence if:
    • (a) the person directly or indirectly promises, offers or gives a benefit to another person; and
    • (b) the person does so with the intention of influencing the other person to:
      • (i) vote or refrain from voting at an election; or
      • (ii) vote in a particular way at an election; or
      • (iii) influence a third person to vote, refrain from voting or vote in a particular way at an election.”
13. There are two mandatory elements for proof in the allegation of bribery. Not only is it necessary to prove the existence of a promise, offer or gift, but also to establish that the money was given with the intention to influence that other person, in this case, Mrs. Doania, to vote for the First Respondent.
14. The burden of proof as always, lies with the Petitioner from the outset to establish “to the entire satisfaction of the court”^[1], that there is “clear and cogent proof”^[2] of the allegation of bribery raised in the petition. The Petitioner is required to provide “clear and convincing evidence” that the $200.00 given with the intention of influencing Mrs. Doania to vote for the First Respondent.
15. The second part to this allegation is the requirement to prove that Mr. Belo is an agent of the First Respondent.

Analysis of the allegation of bribery.

16. I have had the opportunity to carefully consider the submissions of Counsel and the evidence adduced in the sworn statements, and concur with Mr. Apaniai, that the pleadings are defective in so far as not providing adequate particulars of the allegation of bribery, as it relates to Mrs. Doania.
17. All that was disclosed in the pleadings was that there was a gift by a strong supporter and or agent of the First Respondent with the intention of inducing her to vote for the First Respondent, but nothing further was disclosed in the particulars pertaining to the circumstances in which the money was given. It is not enough to say that the money was given with the intention to influence Mrs. Doania to vote for the First Respondent, without more. The facts, matters and circumstances relied on, to support the allegation of bribery must be set out. What were the facts which gave rise to the intention to influence Mrs. Doania to vote for the First Respondent? How was she influenced? What were the material facts in the pleadings, which supported the allegation that the money was given with the intention of influencing Mrs Doania to vote for the First Respondent? Nothing has been stated and to that end I find the pleadings to be devoid of the necessary material facts to support the allegation of bribery. The pleadings to that extent are insufficient and should be dismissed.
18. In terms of the evidence adduced, I am satisfied it should also be dismissed as inadequate on the following grounds.
19. Even if the sworn statement of Mrs. Doania is accepted as true and correct, I am not satisfied it meets the threshold of proving the allegation of bribery pleaded. It falls well short of the required standard of “clear and cogent proof” or “clear and convincing evidence”. All that was stated when the money was given, was that it was to help those who are poor. That has not been disputed. Nothing else was said to accompany the gift, which might lead one to conclude that the money was given to induce a bribe. I find the nexus of proof of the gift being used or given to induce or influence Mrs. Doania, absent or too remote.
20. In his submissions, Mr. Firigeni submits that the Court should draw an inference that the gift amounted to an act of bribery, in the light of the fact that Mrs. Doania claims that she had not received any monetary assistance from the First Respondent in the past four years. He submits that this is the only reasonable inference to be drawn.
21. In his response to this allegation, the First Respondent explained that in October 2018, when Mr. Belo came to collect Project materials to be distributed, he asked him for some money to give to help those who were his close relatives, who were old and to celebrate Christmas. He denied giving the money to Mr. Belo to lure voters or to induce them to vote for him.
22. Mr. Belo also in his sworn statement at paragraphs 2 – 12, sets out the background circumstances in which the money was given. He says that the dates set out in the Petition as being in March and April 2019, were wrong. He says the payment was done on or about October 2018 well before Christmas. These have not been contradicted as well as providing reasonable explanations for the gift of money.
23. Mr. Belo also clarifies, that apart from the fact of age, that Mrs. Doania is old, she is also related to him as an aunt. When asked during cross examination if he had helped Mrs. Doania previously, with such things as food, he answered in the affirmative. That has not been challenged. He also confirms that Mrs. Doania lives not far from him in the same village.
24. After hearing and considering the evidence relied on in this matter, I am not satisfied it has been established to the requisite standard that the only reasonable and logical inference to be drawn from the gift of money is that it was given with the intention to bribe Mrs. Doania. That has not been established to my entire satisfaction.
25. As I have repeated in this judgement, it is for the Petitioner to prove on the evidence to the entire satisfaction of the court, that the payment or gift was given as a bribe. I am simply not satisfied that this has been borne out in the evidence, a fortiori, to accept that such inference is the only logical and reasonable conclusion to be drawn.
26. There is no evidence to support such inference or suggestion and I find it to be too vague, general and ambiguous. I am satisfied this allegation of bribery should be dismissed for those reasons.
27. There is also another ground, more a procedural one in which this ground should be dismissed. During cross examination of Mrs. Doania, when asked about the sworn statement filed in her name, she denied ownership or authorship of the sworn statement, despite repeated questions put to her to clarify her answers, even during re-examination. She denied making any mark on the document, which might indicate that it was her document.
28. To that extent, with the validity and admissibility of that sworn statement in court having been put into question, it would not be safe for this court to rely on the statement, where its validity and veracity has been denied. Once that sworn statement goes, the allegation falls apart. For that reason as well, the only logical decision to be made is to have that allegation of bribery dismissed.

Issue of agency.

29. On the question of agency, once the allegation has been dismissed, the issue of agency automatically falls apart. But even, if the evidence somehow should bear up, which is denied, the pleadings on agency, also do not match up. All it makes is a bare assertion, that Mr. Belo is a strong supporter or an agent of the First Respondent, nothing more.
30. It is bad pleading to allege merely that a right, or a duty, or a liability exists; the facts must be set out, which give rise to such right or create such duty or liability^[3]. In this instance, the Petitioner is obliged to set out the facts and circumstances, on which he relies on as creating that agency. By failing to set out the material facts on the allegation of agency, it is not open to the Petitioner, to rely on evidence at trial to prove agency, where the facts had not been pleaded or set out.
31. I am not satisfied accordingly, that the evidence adduced is sufficient to support the allegation agency. It falls well short of the threshold of proof of agency.
32. In terms of new evidence sought to be introduced at the trial to prove agency, I reiterate it is not open to the Petitioner to introduce new evidence, which had not been disclosed in the sworn statement of witnesses, and the material facts not pleaded.
33. I concur with the submissions of Mr. Apaniai, that it is not open to the Petitioner to introduce new evidence without first giving notice to the First Respondent. In so doing, the First Respondent has been ambushed at trial and has not had time to take proper instructions to respond to the evidence. This applies in particular to the evidence in which it is alleged that the First Respondent had sought to have a T-shirt given to Mrs. Doania. That has not been pleaded, neither has it been included in her sworn statement and therefore is inadmissible.
34. I am satisfied there is simply no evidence or insufficient evidence to support the claim of agency and that allegation should also be dismissed.

Ground 2. Allegation of bribery of payment of $100.00 cash to Mr. Samson Ubunifafilamo.

35. The Petitioner relies on the sworn statement of Samson Ubunifafilamo (“Ubunifafilamo”) filed 16 July 2019 in support of the allegation of bribery in the payment of $100.00 cash to Mr. Ubunifafilamo.
36. The pleadings disclose that a payment of $100.00 was given to Mr. Ubunifafilamo with the intention of inducing him to vote for the First Respondent. He deposes that this was the first time in the last four years such payment was made or given. He also states that Mr. Cedrick Fisango (“Fisango”) was a strong supporter and or an agent of the First Respondent.
37. This ground can be shortly disposed of for the following reasons. First, like the first case, I find the pleadings to be defective, in so far as not providing adequate particulars of the allegation of bribery.
38. Apart from the assertion of the gift of $100.00, no further material or information is disclosed in the particulars, pertaining to the circumstances in which the money was given. How was he influenced with that gift of money? What are the material facts which support the allegation that the gift amounted to an act of bribery; that it was given with the intention of influencing him to vote for the First Respondent?
39. The offence of bribery requires proof of an intention to influence a voter to vote for the candidate. It is necessary therefore, that sufficient particulars or facts are disclosed which relate to the element of an intention to influence a voter.
40. It is not enough to make a bare assertion, the facts which disclose or show that the payment was intentionally done to influence Mr. Ubunifafilamo to vote for the First Respondent should be disclosed in the particulars. To that extent, the pleadings are too vague, general and ambiguous and cannot be sustained.
41. I am satisfied too that this allegation should be dismissed for failing to meet the threshold of proof required in an allegation of bribery. The evidence falls well short of the required standard of “clear and cogent proof” or “clear and convincing evidence”. There is no evidence to support the allegation that it was given as a bribe. I am satisfied the evidence is insufficient and this allegation should also be dismissed on that ground.
42. There is another reason why that ground should be dismissed. It is on the failure of this witness to attend court pursuant to the summons served on him for cross examination. By failing to honour that summons and appear in court, his evidence cannot be tested in court, as against the evidence of Mr. Fisango and the Hon. Stanley Sofu, who appeared in court to contradict the allegations raised in that sworn statement. I am satisfied to that extent minimal reliance should be placed on his sworn statement and for that reason too, I am satisfied the allegation has not been made out and should be dismissed.

Ground 3. Allegation of bribery of payment of $100.00 cash to Mr. Lawrence Lekafia.

43. The circumstances raised in this allegation are the same as those raised in Ground 2 above. It alleges that Mr. Fisango, a strong supporter and or agent of the First Respondent paid Mr. Lawrence Lekafia (“Mr. Lekafia”) the sum of $100.00 with the intention of influencing him to vote for the First Respondent.
44. The allegation is supported by his sworn statement filed on 16 July 2019 and marked Exhibit 3. He states that the money was shared with three others who were together in the house, each one receiving $100.00.
45. In his statement and in court, he says that after giving him the money, Mr. Fisango stood up and said words to the effect that what he was giving was only small as he was not employed or not working.
46. Mr. Lekafia states that this was the first time in four years he had been given money by Mr. Fisango. He also says that Mr. Fisango is the Constituency Project Officer for East Kwaio Constituency.
47. In terms of the allegation of agency, the sworn statement of Ps. Ridley Oda filed 16 July 2019 was relied on. In his evidence, Ps. Ridley states that he saw Mr. Fisango purchasing “many goods at Auki”, which included an estimate of some 20 – 30 bags of 20kg rice, 10-15 cartons of noodles and taiyo. He states that he saw Mr. Fisango taking those goods with him to the village and formed the view, that these were used to induce voters to vote for the First Respondent.
48. Mr. Firigeni submits that the Court should again draw an inference from the gift of $100.00, as amounting to an act of bribery, with intention to induce Mr. Lekafia to vote for the First Respondent. He submits that the Court should view the evidence of Ps. Ridley Oda as supporting the allegation that Mr. Fisango is an agent. He submits that when he gave the money to Mr. Lekafia it was in his capacity as the agent of the First Respondent and while nothing else was said, the court should draw inference from this that it was intended to influence Mr. Lekafia to vote for the First Respondent.
49. In his response, Mr. Apaniai again challenges this allegation of bribery on two fronts. First, that the sufficiency of the pleadings being inadequate. He says the pleadings fail to disclose sufficient particulars of the element of bribery and therefore should be dismissed.
50. In terms of the evidence, he submits it also fails to meet the threshold of proof that the gift amounted to an act of bribery, that is, to induce Mr. Lekafia to vote for the First Respondent. He says the evidence fell well short of the required standard of proof, being to prove “to the entire satisfaction of the Court” that the payment was intended to influence Mr. Lekafia to vote for the First Respondent and therefore should be dismissed.

Analysis of the allegation of bribery.

51. I do not need to repeat what I had said in Ground 2 above, about the necessity in the pleadings to provide sufficient particulars of the allegations of bribery raised in this ground.
52. Apart from a mere assertion of the gift of $100.00, no further material is disclosed in the particulars pertaining to the circumstances in which the money was given. The Petitioner is required to set out the facts and circumstances on which he relies on as demonstrating that the payment was tainted. How was Mr. Lekafia influenced with that gift of money? What are the material facts which support that allegation?
53. The offence of bribery requires proof of an intention to influence a voter to vote for the candidate and so it is necessary to state the particulars which give rise to that intention.
54. It is simply not enough to make a bare assertion, which has happened in this allegation as well and to that extent it suffers from the same fatal defect, being too vague and ambiguous and therefore should be dismissed.

Analysis of the evidence in support of the allegation of bribery.

55. In terms of the evidence adduced, Mr. Firigeni gives two reasons as supporting his submission that the court should take cognisance of as giving rise to an inference that the gift of money amounted to an act of bribery as prescribed in section 126(1) of the Electoral Act 2018.
56. He submits that this was the first time in four years Mr. Lekafia had been given money by Mr. Fisango, and secondly, that there is evidence he is a strong supporter or agent of the First Respondent. When both matters are taken together, he argues there is basis for the court to infer that the payment was done with intention to influence Mr. Lekafia to vote for the First Respondent.
57. However, apart from that submission, there is little or no evidence to support this allegation of bribery. It is again for the Petitioner to prove to the entire satisfaction of the court, that there is “clear and cogent proof” or “clear and convincing evidence” to support the allegation of bribery.
58. When the evidence in the sworn statement is assessed in that light, I am not satisfied it meets the threshold of proving the allegation of bribery pleaded. It falls short of the required standard of “clear and cogent proof” that the gift was intended to bribe Mr. Lekafia with.
59. In his sworn statement, Mr. Lekafia merely states that a sum of $300 was given by Mr. Fisango and shared amongst three of them, Samson Ubunifafilamo, Julia Richard and himself. At paragraph 11, he says that this was the first time he was given money by Mr. Fisango. However, nothing further was said as to why he asserts that the money was given to him as a bribe. If so, he should have provided that evidence. It is not for the court to surmise or make a conjecture or even form an opinion that the payment should be viewed as a bribe. The burden of proof is not on the court, it lies from start to finish with the Petitioner to prove to the entire satisfaction of the Court, that the payment was intended as bribe. He has failed to do that and the only option open to the court is to dismiss the allegation as having failed to cross the threshold of sufficient proof.
60. On its own therefore, the evidence is simply insufficient, but when it is assessed in contrast to the sworn statement of Mr. Fisango filed 20 September 2019 and the evidence adduced during cross examination of both Mr. Lekafia and Mr. Fisango, the credibility, veracity and reliability of Mr. Lekafia’s evidence is even further weakened.
61. Mr. Fisango not only denies the allegation of bribery, but explained in detail the circumstances in which the payment of money was made. At paragraphs 12-15 of his sworn statement he explained that he felt obliged to give them something after sharing some gifts of food with other relatives and seeing them in Ronnie Ubuni’s house.
62. He explained that they are also related to him. On this issue, that has not been discredited in evidence during cross examination. I accept his explanations as to the circumstances on which the payments were done and I am not satisfied his credibility during cross examination has been discredited.
63. I have also had the opportunity to assess the evidence of Ps. Ridley Oda in his sworn statement filed 16 July 2019 and contrasted that with the sworn statement of Mr. Fisango on the issue of agency. At paragraph 20(4) of his sworn statement, Mr. Fisango responds directly to the allegations raised, in particular at paragraphs 7 and 8, where he states that he bought only 4 bags of 20 kg rice, 3 bags for the three men working on his house and one bag for him and his family. He also bought 1 x 10 kg bag rice for Dick Bobby at his request as set out in paragraph 10 of his sworn statement. He denies taking any cargo with him as stated in the sworn statement of Ps. Ridley and or in particular that it was for campaign purposes. He denied outright taking any cargo for campaign purposes and or to buy votes. That denial has not been discredited.
64. I have had the opportunity to listen and observe both witnesses carefully and note that what Mr. Fisango had said in his sworn statement and affirmed in cross examination, had not been discredited. His explanations were specific, clear and reasonable. I am not satisfied that the evidence given by Ps. Ridley to be sufficient to impute any form of agency to Mr. Fisango. I find the evidence amounting to no more than conjecture that what was purchased and taken by Mr. Fisango as “cargo” was to be used for campaign purposes and or to buy votes. That evidence falls well short of the required proof to establish that Mr. Fisango actually did make such purchases, that it was done on behalf of the First Respondent, and that it was to be used to buy votes or to influence voters to vote for the First Respondent.
65. It is pertinent as well to note that the nexus between his evidence on the supposed purchases of “cargo” to the gift of money has not been established, if not, it is too remote to support any suggestion that when the gift of money was given, that Mr. Fisango was doing so on behalf of the First Respondent. The Hon. Mr. Sofu denies knowledge of any such payments and or authorising Mr. Fisango to secure votes for him with the use of money. This explanation and evidence has not been contradicted or discredited. Any such suggestion is based on mere conjecture, is too remote and must be dismissed.
66. Mr. Fisango also denied using words as alleged in paragraph 10 of the sworn statement of Mr. Lekafia, that if he had been working he would have given more money. But even if that were the case, those words as interpreted, do not support any suggestion of bribery and or element of agency. Any inference sought to be drawn from such comment or remark is simply too remote and without basis.
67. There was also reference during cross examination of Mr. Lekafia, of a letter in which it was alleged, Mr. Fisango had instructed him and Samson Ubunifafilamo to write and sign, to withdraw what they had deposed to in their sworn statements. During cross examination however, they said that the instructions were given by Mr. Fisango to his brother and who in turn passed the message onto them. This evidence is clearly hearsay and would be inadmissible as against Mr. Fisango.
68. As well, this allegation (evidence about the letter) has not been disclosed in the particulars and a fortiori, not pleaded. Accordingly it is not open to the Petitioner to raise this as evidence in Court in support of the allegation of bribery. That piece of evidence accordingly should be excluded as inadmissible.
69. There is simply no evidence to support the allegation that the money was given with intention to induce Mr. Lekafia to vote for the First Respondent. Neither is their evidence to support any allegation that Mr. Fisango is an agent of the First Respondent and or, that the money given came from the First Respondent. In his evidence in court, during cross examination, the First Respondent denied emphatically and throughout, that Mr. Fisango was an agent, that he knew about the money given to Mr. Lekafia, or that he authorised any such payment to win votes.
70. The onus of proof of the allegation of bribery and agency lie from start to finish with the Petitioner. Having considered all the evidence adduced, I am not satisfied the allegation of bribery with intent to influence and or induce Mr. Lekafia to vote for the First Respondent has been established to my entire satisfaction and accordingly this ground should be dismissed.

Ground 4. Allegation of bribery by promise of payment of school fees.

71. This allegation asserts that Mr. Henry Belo (“Mr. Belo”) a strong supporter and or agent of the First Respondent had promised to Mr. Peter Nafaka (“Mr. Nafaka”) that the First Respondent will pay his school fees at Waneagu Community High School in exchange for his vote, even if the First Respondent should lose the election.
72. In his sworn statement filed 16 July 2019 and marked as Exhibit 4, Mr. Nafaka states that on election day, on his way to the polling station at Na’au, he was approached by Mr. Belo who promised him that the First Respondent will pay his school fees in exchange for his vote, whether he won the election or not. He says as a consequence he voted for the First Respondent.
73. He states after the election, he came to Honiara to see the First Respondent to pay for his school fees but was told that the Government had not yet been formed. He stayed three weeks in Honiara before returning home.
74. In his submissions against this allegation, Mr. Apaniai again submits that the pleadings were insufficient and or that the evidence was defective and did not support the claim set out under this ground.

Analysis of the evidence.

75. There are two parts to this allegation, that of the promise given for the payment of school fees, and whether Mr. Belo is the agent of the First Respondent.
76. In terms of the allegation of a promise being made, the burden lies with the Petitioner to show to the required standard that such a promise was made by Mr. Belo to Mr. Nafaka. Apart from Mr. Nafaka’s evidence no other evidence has been adduced. It therefore comes down to his word as against that of Mr. Belo.
77. In his evidence on oath during cross examination, Mr. Nafaka maintained that he was approached by Mr. Belo and promised that his school fees would be paid by the First Respondent if he voted for him. When asked about the time this conversation took place, he hesitated and said that it may have been about 8 o’clock in the morning. He told the court that when he met Mr. Belo, polling station B was already open. When it was put to him that Mr. Belo was a polling agent at Na’au Polling station, he agreed.
78. In contrast, Mr. Belo denied making any such promise to Mr. Nafaka. He stated that he was a polling agent nominated by the First Respondent and was at Na’au polling station when it opened at about 7 am. As a polling agent, he states he was already at his post inside the polling station when it opened at 7:00 am and denied meeting Mr. Nafaka and or making any promise to him.
79. On the issue of agency, both the First Respondent and Mr. Belo denied that he was appointed as an agent.
80. I have had the opportunity to consider the sworn statement of Mr. Nafaka, observed him giving evidence in court during cross examination and assess the credibility of his evidence, as against that of the First Respondent and Mr. Belo.
81. Both the First Respondent and Mr. Belo have denied the allegations made by Mr. Nafaka. The First Respondent denies knowledge of any such promise and or that he authorised Mr. Belo to make any such promise in exchange for support or votes. He reiterated throughout his evidence that he knew this is wrong and that he would not have done it or authorised it in anyway.
82. Mr. Belo also denies the allegation and explained that if he was at the Na’au polling station at 7:00 am, he could not be at the place stated by Mr. Nafaka. His explanation has not been contradicted or discredited. Simply put, he could not be at two places at the same time.
83. At the end of the day, it is for the Petitioner to prove his case “to the entire satisfaction of the court”, with “clear and convincing evidence”. At the close of trial, after hearing the evidence, reading the sworn statements relied on, and hearing submissions of Counsel, can it be said that the evidence is “clear and unequivocal” so that the court is “entirely satisfied” that the allegation of bribery in regards to this allegation is made out, not simply on the mere balance of probabilities? The clear answer to this question I find to be in the negative. I am unable to reach such finding, that the evidence is clear and unequivocal, so that I am persuaded and sure, on the balance of probabilities, that the allegation of bribery has been established to the required standard.
84. But even if the allegation of bribery had been made out (which is denied), it is also mandatory for the Petitioner to prove that Mr. Belo is an agent of the First Respondent.
85. In terms of that issue, I am equally not satisfied there is clear and cogent evidence of agency involved, that the so-called promise was conceived, agreed upon and authorised by the First Respondent, that he had knowledge of it, and concurred with what Mr. Belo had done. There is simply no evidence to support that allegation. The nexus again has not been established, is too remote and cannot be imputed in any way to the First Respondent. For that reason as well, I am satisfied the allegation of bribery should be dismissed.

Conclusion.

86. The Election Petition filed on 17 May 2019, amended and filed on 4^th July 2020 is dismissed herewith with costs.

ORDERS OF THE COURT:

1. Dismiss the Election Petition filed on 17 May 2019 and amended and filed on 4^th July 2019.
2. The First, Second and Third Respondents are to have their costs, to be taxed if not agreed.
3. Direct that a certificate be issued to the Governor-General, Speaker of the National Parliament and the Electoral Commission, confirming the validity of the election of the Hon. Mr. Stanley Festus Sofu as the duly elected candidate for the East Kwaio Constituency.

The Court.

^[1] John Maetia v. Charles Dausabea, Civil Case Number 266 of 1993 (unreported), per Sir John Muria CJ;
^[2] Frost CJ in In re Moresby North Parliamentary Election No. 2, [1977] PNGLR 448;
^[3] Per Lord Denning in Shaw v. Shaw [1954] 2 Q.B 429, 441