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Salopuka v Panakitasi [2020] SBHC 72; HCSI-CC 280 of 2019 (1 May 2020)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 280 of 2019

BETWEEN

OLIVER NOLL SALOPUKA
Petitioner

AND:

DICKSON MUA PANAKITASI
Respondent

Date of Hearing: 16-18, 23 December 2019
Date of Judgment: 1 May 2020

Ms. Alice Willy for the Petitioner
Mr. L Kwaiga for the Respondent

1. The election petition filed by Oliver Noll Salopuka (“the Petitioner”) against Dickson Mua Panakitasi (“the Respondent”) on 17 May 2020, alleges that the Respondent is “guilty” of eight grounds of bribery by himself and or by his agents, and relies on the provisions of section 126(1)(2)(iii)(sic) of the Electoral Act 2018 to have the election invalidated. This petition was amended on 6 September 2019 and further amended on 16 December 2019.
2. As amended the petition relies on the provisions of section 126(1) (a) (b) (ii) and section 126(1) (a) (b) (iii) for the allegations of bribery.
3. It is important to point out from the outset that relying on proof of “guilt” of a candidate under section 126 of the Electoral Act 2018 to invalidate an election is not the right way of going about an election petition. This is not a criminal proceeding, and an election petition is not about proving guilt of a candidate. Section 126 of the Electoral Act 2018 does nothing more than define the offence of bribery as it relates to elections. An election petition therefore can only assert that the election of a candidate was not valid and will do that in the exercise of its civil jurisdiction, as opposed to inquiring into the offence of bribery in its criminal jurisdiction.
4. The current petition therefore is defective for it merely seeks the determination of the guilt of the Respondent, when the issue before the Court should be determining the validity of the election in its civil jurisdiction on the grounds of bribery and or corrupt practice. These are not the same. Counsel should not confuse the process in determining an election petition as opposed to proof of guilt in a criminal prosecution. Proof of guilt in a criminal prosecution is of a higher standard, while proof of bribery in an election petition is lower than the criminal standard but higher than the civil standard of “balance of probabilities”^[1]. I do not need to go into the details of this for it has been amply stated in numerous case authorities.
5. I have had the opportunity to read Justice Bird’s decision in James Airahui and others v Peter Kenilorea Junior and Others, Civil case No. 297 of 2019 (23 March 2020), in which she expresses a different opinion, that the failure to include provisions, like section 66(1) and (2) in the new Electoral Act 2018, is a substantial omission, and so a finding of an election bribery can only be successfully pursued by way of a criminal prosecution. Her Ladyship went on to make a hypothetical statement that if she had found bribery established on the matter before her that she would have declined to order disqualification and invalidation of the election.
6. I have also had the opportunity to read Justice Higgins judgement in Jimmy Lusibaea v. Senley Levi Filualea^[2], in which he also referred to the difference of opinion expressed by her Ladyship and explained what the effect of repealed legislation would have: “that as a matter of statutory interpretation, the repeal of an Act or a provision thereof leaves the common law as it was before that Act was passed”^[3]. He then went on to explain what the position of the common law has always been and its effect to elections: “that bribery to procure election in office was an offence at common law and would vitiate an election.”^[4] What this meant is that, in the absence of legislative provision like the repealed provision, the common law would apply as the fall-back position.
7. In Airahui^[5], the common law position did not feature for the court found there was adequate legislative provision, which enabled it to determine the validity of an election on the grounds of bribery and or corrupt practice. At paragraphs 43 and 44, the Court said:
   • “43.The starting point must be the provisions of this Act, the Constitution, and any other written law that may apply, to see what must be complied with to constitute a valid election. This obviously starts with the first-past-the-post voting system (see section 6 of the Act), and so a candidate must have more votes than any other to be validly elected.
   • 44. Numerous requirements are spelled out in detail in the Act and also the Constitution, which if not complied with can result in either the election being negated or the candidate disqualified. For instance, in section 108(5) of the Act the Court may declare the election of a candidate void if it finds that the candidate was not qualified for election or was disqualified at the time of election.” (Emphasis added).
8. This court is obliged pursuant to the Electoral Act 2018 and the applicable Constitutional provisions, which provides for the constitution of parliamentary constituencies, the registration of electors, conduct of elections, hearing of petitions in relation to elections, electoral offences and provisions related thereto and consequential thereupon, to determine the validity of an election where a ground of bribery or corrupt practice is alleged in an election petition.
9. At paragraph 48^[6] in Airahui’s Case, this Court said:
   • “48. At the end of the day it comes down to the fundamental question of what constitutes a valid election and simply put, that must be an election that is done in accordance with the provisions of the Constitution, the Act and any other applicable written law.” (Emphasis added).
10. This conclusion was endorsed by Higgins J when he said at page 5, paragraphs 5-6, that “The power of the High Court to void an election is clearly preserved by s. 108(5) of the Act.”

He continued:

“By virtue of s. 108(5) of the Act that power devolves onto the High Court. To exercise that power is not to usurp Parliament but to support it.”

11. I agree with his Lordship. In saying that the Court has power to determine bribery allegations and to void such elections on the relevant proof, is not making law and usurping power of Parliament, neither is it applying repealed legislation. In other words, the power of the High Court to invalidate an election on proof of bribery or corrupt practice, is preserved under the Electoral Act 2018 and the Constitution. Any suggestions otherwise is mischievous.
12. At paragraph 53^[7] of Airahui, the Court said:
    • “53. This is the crucial issue or what matters in an allegation of illegal or corrupt practice, once it is proven on the requisite standard to have been committed by a candidate or his agent that should render his election invalid. Such election should not be allowed to stand for it cuts across the foundational cornerstones of the Constitution, the Electoral Act 2018 and any other law.” (Emphasis added).
13. Parliament had spoken, although not obvious from the start, it is the Court’s duty to construe and apply the law. This is the non-prescriptive type of law, allowing the Court a wide berth within which to find that certain conduct is unacceptable in a free and fair democracy.
14. Higgins J. concludes at page 7, paragraph 1^[8]:
    • “Sections 49 and 50 of the Constitution support this conclusion. Proof of election bribery by a person as a candidate would cause him or her to be liable to be disqualified from election to Parliament (s.50 Constitution) (if he or she was not already a Member).”
15. It is not so much therefore, whether the omission was substantial or not, as the fact that when the provisions, sections 6, 8, 108, 111, and 112, of the Electoral Act 2018, are read together with sections 49 and 50 of the Constitution, they clearly presuppose the existence of a legislative power (as in section 66(1) and (2) of the Repealed Act,) to invalidate an election, if a corrupt or illegal practice is committed by the candidate or his agent.
16. This position is further supported by the fact, that when the “mind” or “will” of Parliament, more commonly referred to, as the “legislative intention or purpose” is considered, in particular as it pertains to the question whether the omission of the repealed provision may have been deliberate, it all points to the inevitable conclusion that the omission was more an oversight and inadvertent.
17. This legislative intention is not hidden for it can be ascertained by viewing the committee reports and debates of Parliament as contained in the “Hansard Reports or Transcripts”, when the particular clause(s) were debated in detail (if any) in Parliament. Judicial notice can be taken of the legislative history of the Act and all facts constituting the subject-matter of the Act.
18. I have had the opportunity since, to inspect the debates on Hansard, on the clauses covering Parts 8 and 9 of the Act, on “Election Petitions” and “Electoral Offences”, but found nothing to suggest, that the omission was deliberate and intended by Parliament to confine the consequences of bribery and corrupt allegations to a criminal prosecution in section 129.
19. If it was the will of Parliament to confine allegations of bribery to criminal prosecutions as the only route to invalidating an election, I do not think it would have remained so silent about such change, for the effect of such change, under Parts 8 and 9 of the Act would create a vastly different regime that requires a criminal conviction before a member can be disqualified (s. 129) and his election to be invalidated. This would amount to a major policy shift, which makes it much more difficult for alleged corrupt behaviour to be investigated, proven and punished.
20. When such scenario is contrasted against the strict time limit of 12 months imposed upon the determination of petitions, (section 111(1A) of the Electoral Act 2018), it only strengthens the view that it was never the intention of Parliament to confine the consequences of bribery and corrupt allegations solely to a criminal prosecution as in section 129.
21. I will now turn to deal with the allegations of bribery in this petition.

1^ST ALLEGATION. 3(a) BRIBING OF WILFRED NGASI JUNIOR BY GIVING HIM SBD$1,000.00 AT SMART TRADING, KUKUM, HONIARA. That on the afternoon of Monday, 18 March 2019, Dickson Mua gave One Thousand Solomon Bokolo Dollars (SBD$1,000.00) to Wilfred Ngasi Junior in a Taxi in front of Smart Trading with the instruction to take the Money and work with Mark Kemakeza (who was one of his agents) to influence registered voters on Savo Island to vote him.

22. There is a major flaw to this allegation from the outset and which would warrant its dismissal. This relates to the incomplete nature of the pleadings in not setting out sufficient particulars of bribery.
23. In her submissions Ms. Willy of Counsel for the Petitioner, refers to two offences, section 126(1)(a)(b)(ii) and section 126(1)(a)(b)(iii) of the Electoral Act 2018 without specifying which provision is being relied on. Section 126(1)(a)(b)(ii) relates to a bribery allegation of a person to vote in a particular way at an election, while section 126(1)(a)(b)(iii) applies to the bribery of a third person to vote, refrain from voting or vote in a particular way at an election. These are two different offences and it is pertinent that they are specified so the Respondent will know which allegation is being relied on against him so that he can defend himself. That is the first flaw in the pleadings in its generality.
24. Secondly, where bribery is raised as a ground to invalidate the election of the Respondent, it is necessary to state in the pleadings how that money was given with an intention to influence the voter to vote for the Respondent. If it was to influence a third person, it is also necessary to state the identity of that third person.
25. To that extent, it is not clear on the pleadings who is being bribed to vote for the Respondent. If it was Wilfred Ngasi Junior (“Ngasi”) the particulars do not state how he was bribed to vote for the Respondent. They merely state that he was instructed to work with Mr. Kemakeza to influence others to vote for the Respondent.
26. If some third person is being bribed, again insufficient particulars are disclosed. No third person is being identified as being the subject of the bribery allegation. By failing to specify sufficient particulars, the Respondent would not have been in a position to know how that allegation amounted to a bribe and for him to be able to defend himself.
27. By failing to do that, the pleadings amounted to nothing more than what can be deduced by necessary implication or inference, and is unacceptable. The function of pleadings is not merely to define the cause of action, which is, that a promise, offer or gift was made or given, but also to show what acts or omissions will be put forward as constituting the specific element of that activity being done with an intention to influence voters to vote for the Respondent. It is necessary to state how and in what way the gift was corruptly given so as to influence the voter to vote for the Respondent. When assessed in that light, the facts pleaded are insufficient and inadequate. This is bad pleadings and should be dismissed.
28. In any event, I have taken it upon myself to delve into the evidence as adduced to see what has been alleged.
29. The evidence against the Respondent comes from Ngasi. I have had the opportunity to read his sworn statements, seen and heard him giving evidence in court as opposed to the evidence of Mark Kemakeza (“Kemakeza”).
30. Mr. Ngasi does not impress as a reliable witness. He mixed up his dates badly. In his second sworn statement filed on 6 September 2019, he settled for Monday 18^th March 2019, as the date on which the payment of the money occurred. In his oral evidence in court however, he settled on the date of 19^th March 2019. His lack of clarity and certainty of the dates weigh against the veracity of his evidence.
31. In contrast, in his evidence contained in his second sworn statement filed on 11 October 2019, at paragraphs 5 – 11, Mr. Kemakeza states that up until the 23^rd of March 2019, he was still one of the contesting candidates for the same constituency. He states he was at his home at Tulagi on those two dates of the 18^th and 19^th March. He says he came over to Honiara on Wednesday 20^th March to attend the Electoral Office to deal with his issue of disqualification; he stayed on until the 23^rd March when he was informed of his disqualification. He returned to Savo on the same date and remained at his village at Balola until his last congress meeting on the 25^th March 2019.
32. I find Mr. Kemakeza’s explanation, when assessed against the uncertain evidence of Mr. Ngasi, to be more credible and reliable.
33. Reliance has been placed on the sworn statement of William Runa filed 6th September 2019 but that only deposes to the fact of Mr. Ngasi residing overnight at his residence on the nights of the 18^th and 19^th March 2019. It says nothing about whether Mr. Kemakeza was in Honiara on those two dates or not. I am not satisfied Kemakeza’s explanation has been discredited and this evidence by Mr. Runa adds little to the assertions by Mr. Ngasi.
34. Finally, even if what is alleged took place, I am not satisfied it has been established on clear and unequivocal grounds that a bribe had been proven. At page 3, paragraph 14 of his first sworn statement filed 17 May 2019, Mr. Ngasi states that after giving him some money, the Respondent said to him: “u tekem dis wan and u waka waitim Mark; bae last minute bae ufala everi folom me and votim me, Dickson Mua nomoa.” Those words do not constitute bribery. They are more like an instruction for him to work with Kemakeza and at the last minute to follow Respondent and vote for him. The words are too general and there is no evidence to show that the payment of the money was conditional on his vote and or that a third person was bribed.
35. I am satisfied this allegation should be dismissed.

2^ND ALLEGATION. 3(b) BRIBING OF MARK KEMAKEZA TO INFLUENCE VOTERS OF SAVO ISLAND, TO VOTE FOR DICKSON MUA. That on Tuesday, 19 March 2019 at around 2:30 pm, Dickson Mua handed to Mark Kemakeza cash, in the sum of Seventy Five Thousand Solomon Bokolo Dollars (SBD75, 000.00) with instruction to pay voters.

36. This second allegation is related to the first incident as it was also purportedly witnessed by Mr. Ngasi on the second day, Tuesday 19^th March 2019.
37. In his first sworn statement of 17^th May 2019, Ngasi says that the alleged payment of $75,000.00 occurred on Wednesday 27^th March 2019. In his second sworn statement filed 6 September 2019, he says it occurred on Tuesday 19^th March 2019 and not 27^th March. In his oral evidence in Court, he gives another date, 28^th March 2019.
38. Again it is obvious this witness is very unsure of the dates on which the purported incident occurred. That could mean that the allegations never occurred, were fabricated and explained why he was confused about those dates. If there may be a reasonable explanation, the confusion and uncertainty cannot be overlooked for they are not only material, but also relevant to this allegation and other details of his accounts of events in his sworn statements, for Mark Kemakeza denies the allegations that he was at Honiara on those dates of the 18^th and 19^th March 2019 and denies receiving the said sum of money from the Respondent, or being in a taxi with Ngasi when the payment was alleged to have been made.
39. With three different dates given, the Petitioner has failed to provide clear and convincing evidence that the payment and incident did occur as alleged by Ngasi. I prefer the explanation provided by Mr. Kemakeza, as being more credible and reliable, that on those two dates (the 18^th and 19^th March 2019) he was at his home at Tulagi. It is highly unlikely that he would be working with another candidate when he was still a contesting candidate on those two dates. If Ngasi got his dates wrong and it was supposed to have occurred on either the 27^th or 28^th March then that would undermine the rest of the contents of his statement. It is pertinent to note as well, that in the sworn statement of Lot Lele filed on 10^th September 2019, starting at paragraphs 13 – 21, he deposes that he joined the Respondent and his team from 26^th March 2019 at Yandina to assist him with his campaign. At paragraphs 20-21, he deposes that the Respondent left Yandina for Honiara on the 30^th and returned on the 31^st March back to Yandina. The Respondent therefore could not be in Honiara on those dates of the 27^th and 28^th March.
40. Reliance has sought to be made on the sworn statement of William Runa filed 6^th September 2019 but that again only deposes to the fact of Ngasi residing overnight at his residence on the nights of 18^th and 19^th March 2019. It does not deal with the denial of Mr. Kemakeza that on those dates he could not be in Honiara for he was still at Tulagi and only came over to Honiara on the 20^th March to resolve his issue of candidacy with the Electoral Office.
41. I am not satisfied the Petitioner had provided clear and convincing proof of bribery as against the Respondent and, or that the payment and incident did occur as alleged by Ngasi. This ground should also be dismissed.

3^RD ALLEGATION. 3(c) BRIBING JOHN DAE BY GIVING HIM ONE 10 KILO BAG OF RICE, SAVO ISLAND. That on Friday, 29^th March 2019, late afternoon, a John Dae was one of these people who received one bag of rice on the evening of Friday, from Lot Lele, a co-agent working with Mark Kemakeza. Because of the receipt of the Bag Rice from Mark Kemakeza and his co-agents with the instruction to vote for Dickson Mua, John Dae voted for Dickson Mua on 3 April 2020.

42. This allegation can shortly be disposed of as being insufficient to support any allegation of bribery. There is nothing in the pleadings to state how, in what way and to what extent the gift constituted a bribe from the Respondent, from Lot Lele (“Lele”) or Mark Kemakeza and how and in what way it influenced John Dae (“Dae”) to vote for the Respondent.
43. Where bribery is raised as a ground in an election petition to invalidate the election of the Respondent, it is necessary to state in the pleadings, how that money was given with a corrupt intention to influence Mr. Dae to vote for him. No particulars of bribery have been pleaded other than that Mr. Dae had received a bag of rice from Lele, supposedly a co-agent of Mr. Kemakeza. That is not only bad pleadings, is inadequate and should be dismissed outright.
44. The purpose of pleadings is to enable the Respondent to know what he is up against and to defend himself. In this instance, it is not clear what constitutes the bribery allegation that he is required to respond to.
45. The evidence filed in support of the pleadings also fails to support an allegation of bribery against the Respondent or Mr. Kemakeza or even Mr. Lele. At page 2, paragraph 2 of his sworn statement filed on 17^th May 2019, Dae states that Lele told him that Kemakeza had told him to tell him that he must pledge his support to the Respondent, because if the Respondent wins, Mr. Kemakeza will be a Project Officer or a CDO and that will provide access through him for any help that they may need. That evidence however is hearsay and inadmissible.
46. At paragraph 4, Dae states that after he was given a bag of rice, Lele told him to “take this bag of rice for your children to eat. You go and leave this bag at your Home and then you stroll back to us.” Even if this is true, there is nothing in that to suggest that he had been bribed or offered a bribe to vote for the Respondent. There is nothing to support the allegation that instructions were made with a promise attached or conditional on the gift of rice in exchange for his vote.
47. In addition, Mr. Lele denies that he was at Balola village as alleged on the 29^th March 2019. In his sworn statement filed on 20^th June 2019, at paragraphs 3-10, he states that he joined the Savo delegation to travel to join the Respondent’s campaign team in the Russell Islands. They left on the 26^th March and remained with the campaign team until the 31^st March 2019 and so could not be at Balola village as alleged by Dae. He also denied giving any bag of rice as a bribe.
48. In his second sworn statement, at paragraphs 11 – 22, he repeated what he said in his first sworn statement and providing more details, including details about the movement of the Respondent that he was with them throughout that period up until the 30^th March. He states that the Respondent left for Honiara on the morning of 30 March and returned on 31 March to continue with his campaign at Louna village. I accept his explanations as more credible and reliable than that of Mr. Dae.
49. I am satisfied the Petitioner has failed to prove bribery to the required standard on this allegation and it should also be dismissed.

4^TH ALLEGATION. 3(d) BRIBING OF MADALENE SAMU BY GIVING HER ONE 10 KILO BAG OF RICE, BALOLA VILLAGE, SAVO ISLAND. On Friday 29^th March 2019, at around late noon; Wilfred Ngasi Junior, an agent of Dickson Mua gave one 10 kilo bag rice to Madalene Samu and when she asked about the rice, he replied and said that “Mark gave this bag of rice to you and for us to follow him and vote for Dickson Mua.” That on 3 April 2019, Madalene Samu voted for Dickson Mua.

50. The evidence of Madalene Samu (“Madalene”) as to what Ngasi had told her about what Mark Kemakeza had said about the gift of the bag of rice and for them to follow him and vote for the Respondent is hearsay and inadmissible.
51. I am not satisfied sufficient and cogent evidence has been shown, that the bag of rice was corruptly given, and that it influenced Madalene to vote for the Respondent. All it shows is that she had been implored to follow Mark to vote for the Respondent. Whether she did or not remained a matter within her discretion to determine. There is no evidence to show that the gift was conditional for her vote and falls well short of bribery.
52. Even if true, there is insufficient proof that Ngasi is an agent of the Respondent, or that he is an agent of Mr. Kemakeza. At page 2, paragraph 6 of his sworn statement filed 20 June 2019, Mr. Kemakeza denies instructing Mr. Ngasi to give any bag of rice and or to instruct him to advise Madalene to vote for the Respondent. I am not satisfied it has been established to the required proof, that Mr. Kemakeza is an agent of the Respondent and or that he authorised Ngasi to give the bag of rice as a bribe to Madalene to induce her to vote for the Respondent.
53. I am also not satisfied the nexus to the Respondent by agency has been established on the requisite standard and is too remote.
54. Ngasi’s evidence at page 5, paragraph 34 of his first sworn statement filed 17 May 2019, is unremarkable in so far as it purports to support Madalene’s evidence. All he said was to repeat what Madalene said without deposing separately to the particular circumstances in which the gift was given to him and how it was to be used to corruptly influence Madalene to vote for the Respondent. His evidence falls well short of the requirement of clear and cogent proof of bribery and or agency.
55. I am satisfied this ground should also be dismissed.

5^TH ALLEGATION: 3(e) BRIBING OF JOANNA TARANGOE OF LEBONI VILLAGE, SAVO ISLAND BY GIVING HER A BAG OF RICE AND A HUNDRED DOLLAR NOTE. That on Friday, 29^th March 2019 at around mid-day, an agent of Dickson Mua; Mark Kemakeza gave one 10 kilo bag of rice and a hundred dollar note to Joanna Tarangoe of Leboni Village, Savo Island and said to her in their mother’s tongue and translated in English as “Uncle you take this bag of rice and this one hundred dollar ($100.00) and follow me to vote for Dickson.” That on 3^rd April 2019, Joanna Tarangoe voted for Dickson Mua.

56. The next allegations, fifth, sixth and seventh, relate to the same incident on the 29^th March 2019 at around mid-day, when the gifts of a ten kilo bag rice and one hundred dollar note was given, purportedly as a bribe to those voters with the intention, to influence them to vote for the Respondent.
57. Both Joanna Tarangoe (“Joanna”) and Valentine Vali (“Vali”) had been invited by Joel Lele to attend a meeting at Mark Kemakeza’s parents’ house at Balola village. Kamilo Garomo (“Garomo”) decided to attend on his own accord when he saw them walking together towards Mark Kemakeza’s parents’ house. In all there were about 8 or so people, all from Leboni village.
58. They say they were treated with tea and biscuits and afterwards given one bag of rice and a $100.00 note each.
59. It is not disclosed what the purpose of that meeting was, whether it was one of those meetings during campaign time to rally support for the Respondent or not. We do not know for Mr. Kemakeza deny that any gifts were made as alleged.
60. In her evidence, Joanna states that Mr. Kemakeza told her to follow him to vote for the Respondent. At page 2, paragraph 10 of her sworn statement filed 17 May 2019, she deposes Mark said the following words to her: “... you take this bag of rice and this one hundred dollar ($100.00) and follow me to vote for Dickson.”
61. Even if true, I find this evidence unremarkable and insufficient to prove bribery against either Mr. Kemakeza or the Respondent. In bribery, there must exist a corrupt arrangement^[9]. It is necessary to show that the gift given was intended as a bribe to influence the vote of the voter^[10].
62. When the evidence is assessed against those requirements, I am not satisfied it has been shown on clear and cogent proof, that a corrupt arrangement exists between the Respondent and Joanna or between Mark and Joanna, and or that the gifts were given as a bribe to influence her to vote for the Respondent. All that had been deposed to was that she had been implored to follow him, Mark, to vote for the Respondent. Whether she followed him or not is a matter for her to decide upon. I am not satisfied it had been shown on the evidence that her will had been overborne or corrupted by a gift. I am also not satisfied it had been established that the giving was conditional upon her vote for the Respondent. The resultant effect is that I am not satisfied the allegation of bribery has been made out.
63. Further, it has not been shown on clear and convincing proof, that Mr. Kemakeza is an agent of the Respondent. Mr. Kemakeza repeatedly denies being appointed an agent of the Respondent. He states that up to 23^rd March 2019, he had been one of the contending candidates and it was not until about 25^th March 2019 that he informed all his supporters that he was not going to continue as a candidate.
64. I am also not satisfied it has been established on the evidence that even if true, the Respondent was aware and or authorised any of the transactions in the allegation.
65. The evidence on bribery remains unremarkable, lacking in proof and failed to establish the crucial element of agency between Mr. Kemakeza and the Respondent. It should be dismissed herewith.

6^TH ALLEGATION: 3(f) BRIBING OF VALENTINE VALI OF LEBONI VILLAGE, SAVO ISLAND BY GIVING HIM A BAG OF RICE AND A HUNDRED DOLLAR NOTE. That on Friday, 29^th March 2019 at around mid-day, an agent of Dickson Mua; Mark Kemakeza gave one 10 kilo bag of rice and a hundred dollar note to Valentine Vali of Leboni Village, Savo Island and said to him in their mother’s tongue and translated in English as “You vote with me for Dickson Mua.” That on 3^rd April 2019, Valentine Vali voted for Dickson Mua.

66. This is also one of the allegations of bribery arising from the same events that transpired on the 29^th March 2019, alleging that Mr. Kemakeza had given the gift of rice and money as a bribe, on behalf of the Respondent to influence Valentine Vali (“Vali”) to vote for the Respondent.
67. Mr. Kemakeza again denies this transaction (see paragraphs 15-17, at page 2 of his first sworn statement filed 20 June 2019).
68. For the same reasons given above in the 5^th allegation, this bribery allegation should also be dismissed. Even if true, I am not satisfied it has been established unequivocally that the gifts amounted to a bribe and or corruptly influenced Vali to vote for the Respondent. There is insufficient evidence to support the allegation that Vali was influenced by the gifts. It is pertinent to note he had attended the meeting voluntarily when invited by Joel Lele.
69. I find the words used “you vote with me for Dickson”, to be unremarkable and not evidence of a bribe being given, other than an encouragement for him to join him to vote for the Respondent. Whether he joined was a matter entirely within his own choice to make. I am not satisfied it had been shown on the evidence, that his will had been overborne or corrupted by a gift or that the giving was conditional upon his vote for the Respondent. Accordingly I am not satisfied the allegation of bribery has been made out.
70. For the same reasons given up above in allegation 5, the issue of agency has also not be established on clear and cogent proof. This allegation accordingly also fails and should be dismissed.

ALLEGATION 7: 3(g) BRIBING OF KAMILO GAROMO OF LEBONI VILLAGE, SAVO ISLAND BY GIVING HIM A BAG OF RICE AND A HUNDRED DOLLAR NOTE. That on Friday, 29^th March 2019 at around mid-day, an agent of Dickson Mua; Mark Kemakeza gave one 10 kilo bag of rice and a hundred dollar note to Kamilo Garomo of Leboni Village, Savo Island and said to him in their mother’s tongue and translated in English as “Take this bag of rice and this one hundred dollar ($100.00) and vote with me for Dickson.” That on 3^rd April 2019, Kamilo Garomo voted for Dickson Mua.

71. This ground should be dismissed for the same reason set out in grounds 5 and 6 above. Even if true, it fails for the same reason to establish on clear and unequivocal proof, that the gift was a bribe for Mr. Garomo to vote for the Respondent. There is insufficient evidence either to support the allegation that he was influenced by the gifts.
72. It is pertinent to note that his attendance at the gathering at Mr. Kemakeza’s parent’s house was at his own accord. At page 1, paragraph 4 of his sworn statement filed 17 May 2019, he states: “That, I saw Joana Tarangoe, Valentine Vali and the others followed Joel, and so I got up and followed them; walking to Balola village.” He decided to attend the meeting without being invited.
73. The same words “... vote with me for Dickson Mua.”, were also used. That is again unremarkable, failing to establish that the gift was a bribe, that is, given in exchange for his vote and came from the Respondent. I am not satisfied it has been shown on clear and cogent proof that the giving was conditional, whether express or implied, upon Mr. Garomo voting for the Respondent. Whether he decides to join Mr. Kemakeza to vote for the Respondent or not is neither here nor there. That is a matter entirely within his own choice to decide what to do with his vote. I am not satisfied it had been shown on the evidence, that his will had been overborne or corrupted by a gift.
74. On the issue of agency, I am also not satisfied this has been proven to the requisite standard. For the same reasons set out in allegations 5 and 6, this ground is also dismissed.

ALLEGATION 8: 3(h) BRIBING OF MARY MAVUTU AND WILFRED MAVUTU OF PETU PETU VILLAGE, SAVO ISLAND BY GIVING SBD500.00. That on Wednesday, 3 April 2019 at around 4:00 am, Wilfred Ngasi Junior gave the Five Hundred Solomon Bokolo Dollars ($500.00) to Mary Mavutu and her husband, Mr. Wilfred Mavutu received the money instead. Mary Mavutu and her husband Wilfred Mavutu voted for Dickson Mua on 3 April 2019.

75. This allegation should be dismissed outright as being devoid of sufficient particulars and failing to show a reasonable cause of action for determination in this petition.
76. The pleadings merely mentions a gift of a sum of money but nothing further. All it states is that Ngasi gave them $500.00. It did not say how, in what way and to what extent the gift was a bribe from the Respondent, and how and in what way it influenced the couple to vote for the Respondent.
77. Where bribery is raised as a ground to invalidate the election of the Respondent, it is necessary to state in the pleadings how the money was corruptly given with an intention to influence Wilfred Mavutu (“Mavutu”) and Mary Mavutu (“Mary”) to vote for the Respondent. No particulars of bribery have been pleaded. That is bad pleadings, is inadequate and should be dismissed.
78. The function of pleadings is not merely to define the cause of action, which is, that a promise, offer, or gift was given, but also to show what acts or omissions will be put forward as constituting the specific element of that activity being done with an intention to influence voters to vote for the Respondent. It is necessary to state how and in what way the gift was corruptly given so as to influence the voter to vote for the Respondent.
79. By failing to do that, the pleadings amounted to nothing more than what can be deduced by necessary implication or inference, and is unacceptable. When assessed in that light, the facts pleaded are simply insufficient.
80. Further, when the evidence of Mavutu and Mary are assessed in that light, all that is revealed is that it was Ngasi who had told them to vote for the Respondent. At page 2, paragraph 2 and 3 of her sworn statement filed 17 May 2019, Mary heard Ngasi saying: “You take this money and you must vote Dickson Mua, his symbol is BONITO”. Mavutu also heard the same words^[11] being spoken.
81. Apart from that evidence, nothing is put forward in their sworn statements to indicate whether Ngasi was sent on behalf of the Respondent or Mark. Any suggestion therefore that the payment was actually made on behalf of Mark or the Respondent must fail, for the evidence is simply devoid on this issue of agency. It has not been shown on clear and cogent proof that when Ngasi made the payment to them, he was doing it on behalf of Mark and or the Respondent. Ngasi’s evidence that he was sent by Mark is immaterial, for when he went to see Mavutu and Mary, there is no evidence that he told them or that they knew that he was sent by Mark, that he was Mark’s agent or the Respondent’s agent, and that the money came from Mark.
82. It is not for the court to draw inferences of agency, unless there is sufficient evidence to support such conclusion. Rather, it is for the Petitioner to show to the requisite proof that a relationship of agency exists between Ngasi and Mark and or with the Respondent. On that ground, I am not satisfied it has been established to my entire satisfaction that Ngasi was acting as an agent of Mark or the Respondent.
83. The evidence of Mavutu, Mary and Ngasi in their sworn statements all confirm that Ngasi was confronted for the payment but nothing to suggest that he was doing it as an agent other than a suggestion that the Respondent was his candidate. Even if that may be suggestive of agency I am not satisfied that is sufficient in the circumstances of this case.
84. I have had the opportunity to consider the sworn statements of Mr. Kemakeza and heard his evidence in court. He repeatedly denied any appointment or acting as an agent for the Respondent and or giving the said sum of money to Ngasi as a bribe for Mavutu and Mary. I am not satisfied it has been established to the required proof, that Mark is an agent of the Respondent, and or that he instructed Ngasi to pay Mavutu and Mary a bribe to vote for the Respondent.
85. Even if the payment amounts to a bribe, it should be confined to Ngasi, and as the only one that has been raised in this petition, insufficient to affect the result of the election and should be dismissed as well on that basis.
86. For all those reasons as well I am satisfied this ground should be dismissed.

Decision.

87. All grounds having been dismissed, the petition should be dismissed accordingly with appropriate orders.

ORDERS OF THE COURT:

1. Dismiss the Election Petition filed on 17 May 2019, amended on 6 September 2019, and further amended on 16 December 2019.
2. The Respondent is entitled to have his costs paid, to be taxed if not agreed.
3. Direct that a certificate confirming the validity of the election of the Hon. Mr. Dickson Mua Panakitasi, as the duly elected candidate for the Savo - Russell Constituency, be issued to (i) the Governor-General, (ii) the Speaker of the National Parliament, and (iii) the Electoral Commission.

The Court.

^[1] Alisae v. Salaka [1985] SBHC 6; [1985] SILR 31 (4 April 1985); Thugea v. Paeni [1985] SBHC 5; [1985-1986] SILR 22 (14 March 1985); William Gigini v. Eric Notere, Civil Case No. 9 of 2002, (6th June 2002); see also “the Briginshaw standard” referred to by Higgins J. in Jimmy Lusibaea v. Senley Levi Filualea HCSI-CC 275 of 2019 (17 April 2019).
^[2] HCSI-CC 275 of 2019 (17 April 2019)
^[3] See Thoburn v. Sunderland City Council [2002] EWHC 195; [2002] 3 WLR 247; EWHC 195; [2002] EWHC 195; [2003] QB 151 BH v. Lord Advocate (Scotland) [2012] UKSC 24.
^[4] Halsbury’s Laws of England, 4th Edition, volume 15, at paragraph 767,
^[5] James Airahui and others v Peter Kenilorea Junior and Others Civil case No. 297 of 2019, (2nd September 2019)
^[6] James Airahui and others v Peter Kenilorea Junior and Others Civil case No. 297 of 2019, (2nd September 2019
^[7] Ibid.
^[8] Jimmy Lusibaea v. Senley Levi Filualea HCSI-CC 275 of 2019 (17 April 2019)
^[9] Alisae v. Salaka [1985] SBHC 6, per Woods CJ.
^[10] Ulufa’alu v. Saemala [1993] SBHC 31 per Muria CJ.
^[11] See page 2, paragraph 5 of his sworn statement filed 17 May 2019.