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Rex v Agovaka [2024] SBHC 137; HCSI-CC 176 of 2024 (14 October 2024)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Rex v Agovaka


Citation:


Date of decision:
14 October 2024


Parties:
Jeromy Manengelea Rex v Peter Shanel Agovaka, Attorney General


Date of hearing:
14 August 2024


Court file number(s):
176 of 2024


Jurisdiction:
Civil


Place of delivery:
High Court of SI, Court Room 1.


Judge(s):
Palmer; CJ


On appeal from:


Order:
1. Grant application for strike out herewith with costs, in favour of the Applicant / First Respondent and Second Respondents, to be taxed if not agreed.
2. Direct that a Certificate of this Court’s Order or dismissal be issued herewith, confirming that the Applicant/ First Respondent is the duly elected Member of Parliament for the Central Guadalcanal Constituency, to the Electoral Commission, His Excellency the Governor-General of Solomon Islands, and the Speaker of Parliament.


Representation:
Mr McChesney Ale for the Applicant/ First Respondent
Ms Freliz Fakarii for the Second Respondent
Mr Evan Olofia for the Respondent/Petitioner


Catchwords:



Words and phrases:


Legislation cited:
Electoral Act Petition Rules 2019 r 24
Electoral Act 2018, S 111 (b), S 111 (1) (b), S 126, Subsection (1) and (3), Subsection (4), S 126 (1) (a) (b) (ii), 122 (b) and (f),
Penal Code S 333 (1), S 334 (1), S 122 (b), S 83, S 85, S 92, S 81, 83, 85 and 92, S 81, S 92 (3), S 92(1), S 100, Subsection 100(3) (d) and (e), S 134 (1), S 102, S 99, S 98, S 102 (2), S 112,S 106
Electoral (Amendment) Act 2023, S 107 (7) (a) and (b)
Solomon Islands Courts (Civil Procedure) Rule 2007, r9.75, r 50


Cases cited:
Salopuka v Panakitasi [ 2020] SBHC 72, Sasako v Sofu [2020] SBHC 7,Ruksle v Kemakeza [ 2004] SBHC 116,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case No. 176 of 2024


BETWEEN


JEROMY MANENGELEA REX
Petitioner


AND:


PETER SHANEL AGOVAKA
First Respondent


AND:


THE ATTORNEY-GENERAL
(Representing the Electoral Commission, the Chief Electoral Officer, the Election Manager for Guadalcanal Province and the Returning Officer for Central Guadalcanal Constituency)
Second Respondent


Date of Hearing: 14 August 2024
Date of Judgment: 14 October 2024


Counsel: Mr McChesney Ale for the Applicant/First Respondent
Counsel: Ms Freliz Fakarii for the Second Respondent
Counsel: Mr Evan Olofia for the Respondent /Petitioner

Palmer CJ:

  1. This is an application for strike out, filed by the Applicant / First Respondent on the 9th July 2024, pursuant to Rule 24 of the Electoral Act Petition Rules 2019 (“the Petition Rules”), as read with section 111 (b) of the Electoral Act 2018, Rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (“the Civil Procedure Rules”), and the inherent jurisdiction of the Court.
  2. The orders sought are for:
  3. Rule 24 of the Petition Rules give jurisdiction to this court to hear this type of application, while section 111 (1) (b) allows the Court to dismiss a petition on two grounds, being, (i) if the petition is frivolous or vexatious; or (ii) there are insufficient grounds to warrant the hearing of the petition.
  4. Rule 9.75 of the Civil Procedure Rules also gives jurisdiction to this Court to dismiss an action on similar grounds, being (i) the proceedings are frivolous or vexatious; or (ii) no reasonable cause of action is disclosed; or (iii) the proceedings are an abuse of the process of the court. Note, the Civil Procedure Rules may be relied on pursuant to Rule 50 of the Civil Procedure Rules in particular where the Petition Rules are silent. Rule 50 provides:
  5. The Applicant submits that the Petition in its entirety is frivolous or vexatious, an abuse of the court process, and does not disclose any reasonable cause of action to nullify the election of the First Respondent as the Member of Parliament for the Central Guadalcanal Constituency.
  6. He submits that with regards to the first ground (paragraph 3 of the Petition), on the allegations of corrupt and illegal practices, that these are frivolous or vexatious, an abuse of the Court process, and discloses no reasonable cause of action.
  7. With regards to the second ground (paragraph 4 of the Petition), which alleges breaches in the Electoral Act 2018, he submits these are petty administrative matters that do not and are incapable of affecting the results and as such, are frivolous or vexatious, an abuse of the court process and discloses no reasonable cause of action.
  8. The Applicant relies on the following documents in support of this application, being:

The Grounds raised in the Petition.

  1. There are essentially two types of grounds raised in the Petition, the first one being, an allegation of Corrupt and Illegal Practices, and the second, allegations of breaches of the Electoral Act 2018.
  2. With regards to the first ground, the allegation is in relation to specific or particular bribery claims against the First Respondent, and or his Agents, and or by persons acting on his instructions.
  3. I will deal with each ground separately herewith.
  4. In his submissions, Mr. Ale, of Counsel for the Applicant/ Respondent raises four grounds on which he says this allegation is defective and should be dismissed.
  5. The first point raised is that it failed to specify the offence or illegal practice relied upon under section 126 of the Electoral Act, which defines several distinct offences.
  6. He submits that section 126 relates to two types of offences as set out in subsections (1) and (3). Those two subsections in turn prescribe separate offences. In subsection (1), four separate offences are described, and in subsection (3), three separate offences. In subsection (4), another separate offence is prescribed.
  7. He submits this failure to specify which of those illegal practices is relied on in the Petition is a defect on the face of the Petition that warrants dismissal. He relies on the case of Salopuka v. Panakitasi[1], to submit that the defect amounts to a major flaw which warrants a dismissal.
  8. The second issue raised relates to two more flaws, which he submits are more significant and warrant the dismissal of this ground as well.
  9. The first is the failure to specify how Mr. Masi is an Agent of the First Respondent. In his answers to the request by the First Respondent for further and better particulars[2], the Petitioner admitted in paragraph 1.1 (A), that “how and when the said Cypriano Masi became an Agent for the 1st Respondent is unknown to the Petitioner”.
  10. He submits this answer demonstrates that the Petitioner does not have the required evidence to show how and when Mr. Masi is an agent or became an agent of the First Respondent.
  11. He submits that the only facts provided to support this assertion are, (i) that Masi is a Campaign Manager, and (ii), that he handed out bags of rice given by the First Respondent.
  12. He submits that even if the Court assumes this is true, it is still insufficient and incapable of establishing that Masi was acting upon instructions and the knowledge of the 1st Respondent.
  13. The second and more significant flaw alleged, is the failure to specify how the alleged benefit was given to Hainiko to influence his father and brothers to vote for the First Respondent. Mr. Ale relies also on the Salopuka case (ibid), and the case of Sasako v. Sofu[3], which require the Petitioner to state in the pleadings how that money was given with the intention to influence the voter to vote for the Respondent etc.
  14. In Salopuka, at paragraph 27, this Court states:
  15. Mr. Ale submits that what was stated was a mere intention and nothing more, “with intent of influencing Aloysio Hainiko to influence his father and brothers to vote for the 1st Respondent”. When the Petitioner was given the opportunity to set out “what acts or omissions will be put forward as constituting the specific element of that activity being done with an intention to influence voters”, through the request for further and better particulars by the First Respondent, the Petitioner resorted only to inference by implication, more so an inference that fails as a necessary one. At paragraph 1.2 (B) of his answers, the Petitioner merely says that “people do not give out free bags of rice. That is not normal.”
  16. In his submissions, Mr. Ale submits that the pleadings fall short of setting out sufficient particulars on the giving being done with an intention to corruptly influence the recipients. He refers to the assertions, in the sworn statement of Aloysio Hainiko, in which he expresses a belief, that the giving of rice to people in the Belaha Community was to influence members of the community to vote for the First Respondent. He says this is insufficient.
  17. He submits as well that the sworn statements of Christopher Lihoti and Christine Bale also fail to show any act, or omission or facts sufficient to establish that the alleged benefit given was intended to influence the alleged persons to vote for the First Respondent.
  18. The response by Mr. Olofia, of Counsel for the Respondent/ Petitioner is that facts pleaded and set out in the sworn statements of Aloysio Hainiko, Christopher Lihoti and Christine Bale establish that a prima facie case of bribery has been shown contrary to section 126 (1)(a)(b)(ii) of the Electoral Act 2018.

Discussion and Decision.

  1. On the issue of failing to specify the offences relied on in section 126 of the Electoral Act 2018, it is correct that this has not been done in this case. It does not specify which particular offence is relied on. Only in the submissions is this disclosed by Mr. Olofia to specify that section 126 (1) (a) (b) (ii) of the Electoral Act 2018 is being relied on.
  2. I accept that in the particular circumstances of this case, a quick amendment will cure the defect and so that would resolve that lack of detail in terms of the offences relied on. However, that does not mean that more care and thought should have been given to the preparation of Petitions to ensure that clear instructions are taken and sufficient facts pleaded to inform the Respondent as to what is alleged against him.
  3. This brings me to consider the first issue raised of lack of sufficient particulars on the issue of Agency. The most that has been stated in the particulars is an assertion that Cypriano Masi is an agent of the First Respondent. In terms of the sworn statements filed, he has been described as a “Campaign Manager”, without more details being provided as to how that Agency relationship has been established. The Petitioner is obliged, when asserting that a relationship of Agency exists, to set out the “facts and circumstances”, on which he relies on as establishing the agency relationship. That has not been done in this case.
  4. In his answers to the Request by the First Respondent for Further and Better Particulars, the Petitioner admitted in paragraph 1.1 (A), that “how and when the said Cypriano Masi became an Agent for the 1st Respondent is unknown to the Petitioner”. If that is not known, then how can it be proved to the necessary standard?
  5. On that basis alone, I am satisfied this ground should be dismissed as failing to provide sufficient particulars to disclose any reasonable cause of action as against the First Respondent.
  6. On the second issue, of whether sufficient grounds have been established to warrant the hearing of the petition or not, the facts as pleaded does show that a bag of rice was given to Aloysio Hainiko to give to his father and brothers. The materials pleaded do disclose that they had not asked for it and that they were not supporters of the First Respondent.
  7. That would suffice in terms of supporting the allegation that the bag of rice was given to influence them other than anything else.
  8. However, even if that were the case, and accepting that there is sufficient particulars to allow this ground to proceed to a hearing, the reality is that one allegation would not establish that corrupt practices so extensively prevailed they affected the result of the election, as required to be established pursuant to section 108(7) (a) and (b) of the Electoral Act as amended[4], noting that the margin of votes in this case is quite substantial, at 1862 votes.
  9. Again the first issue for determination is that of Agency. In support of this allegation, two sworn statements of Sirila Sui and Wryne Mabe both filed on the 24th May 2024, were relied on.
  10. The sworn statements of both Sirila Sui and Wryne Mabe assert on the issue of agency, that Carlos Wesley is a “strong and vocal supporter” of the First Respondent. Apart from that, nothing else is stated.
  11. In his submissions on this issue of agency, Mr. Ale reiterates that this ground suffers the same defects as those in ground 1. In particular, he points out that in paragraph 2.1 (D), in answer to the request by the First Respondent for the Petitioner to specify how Mr. Wesley was an agent, the Petitioner also repeated that “how and when the said Carlos Wesley became an agent for the 1st Respondent is unknown to the Petitioner”.
  12. In the case of Rukale v. Kemakeza[5], the Court noted as follows:
  13. For the same reasons stated in Ground 1, I am satisfied this ground should be dismissed as failing to provide sufficient particulars to disclose any reasonable cause of action as against the First Respondent on this vital issue of agency.
  14. On the second issue, whether sufficient grounds have been established to warrant the hearing of the petition or not, the facts as pleaded does show that a bag of rice was given to Sirila Sui and witnessed by Wryne Mabe. Sirila confirmed that she had never asked for any bag of rice from the First Respondent.
  15. I am satisfied that would suffice in terms of supporting the allegation that the bag of rice was given to influence them other than anything else and that the matter would need to be rebutted. However, even if that were the case, and accepting that there are sufficient particulars to allow this ground to proceed to a hearing, the reality is that one allegation would not establish that corrupt practices so extensively prevailed they affected the result of the election as required to be established pursuant to section 108(7) (a) and (b) of the Electoral Act as amended, noting that the margin of votes in this case is substantial at 1862 votes. This ground therefore should be dismissed herewith.

The Third Allegation of Bribery.

Between 17 April 2024 to 23 April 2024 at Henderson, the 1st Respondent through his agents namely Alphonse Botu, Andrews Bosali and Lady Julie Tovua interfered with Ballot Boxes and Sacks of the Central Guadalcanal Constituency by transporting the said Ballot Boxes and Sacks to a private premises owned by the said Lady Julie Tovua and opened or interfered with Sealed Ballot Boxes and Sacks with the intent of forging Ballot Papers in favour of the 1st Respondent contrary to section 122(b) and (f) of the Electoral Act 2018.
  1. This ground alleges the commission of two separate offences, being forgery, and destruction or interference, with a ballot box or a packet of ballot papers.
  2. Section 122(b) and (f) provides as follows:
  3. Section 333(1) of the Penal Code in turn defines the offence of forgery as:
  4. In essence it is the making of a false document that it may be used as genuine.
  5. Section 334 (1) in turn defines a false document as follows:
  6. In support of the allegation, five sworn statements were also filed by the Respondent/ Petitioner as follows:
  7. In his submissions in support of this ground, Mr. Olofia submits that the evidence of interference with the ballot boxes and sacks is prima facie evidence supporting the contention that there has been interference with the ballot boxes and papers.
  8. He submits that the movements of ballot boxes and sacks raises questions about their safety and security and that of tampering and interference.
  9. Mr. Ale on the other hand, submits that in terms of the issue of Agency of Alphonse Botu, Andrew Bosali and Lady Julie Tovua, inadequate particulars had been provided and so this ground should be dismissed.
  10. The second point raised is that the particulars relating to the offence of forgery is also insufficient. He points out that the Petition pleads intention to forge. He submits (correctly) that intention to forge does not amount to an offence of forgery under section 122(b) of the Electoral Act 2018.
  11. In addition he points out that when the opportunity was presented to provide the particulars of how and the quantity of ballot papers were forged, the Respondent/ Petitioner was unable to answer and insists that only those three persons can answer that query.

Discussion and Decision.

  1. I am satisfied on the first issue of allegations of Agency against Alphonse Botu, Andrew Bosali and Lady Julie Tovua, the particulars in the pleadings are simply inadequate. There is insufficient facts pleaded to establish the agency relationship of those three persons to the First Respondent.
  2. In Alphonse Botu’s case, the facts disclosed were that he was a supporter of the First Respondent. In Andrew Bosali’s case, that he is a vocal and known supporter of the First Respondent. In Lady Tovua’s case, she is alleged to be an agent because she “allowed, consented, or authorised” the storage of ballot boxes and sacks at her residence.
  3. I am satisfied these pleadings to be too vague, ambiguous and disjointed. There is an over-generalisation of assertions with conjectures that because they were known supporters and were vocal that they must be agents.
  4. In Alphonse Botu’s case it was a known fact that he was a Returning Officer for the Ghaobata Ward, North Guadalcanal, for the Provincial Ward Elections. His account of the events which sought to paint a tainted picture of him and his involvement, and in particulars that were observed, were in relation to his duties as a Returning Officer for the Ghaobata Ward. This allegation in my considered view against him as an Agent of the First Respondent, I find to be frivolous or vexatious.
  5. The same can be said of the allegations against Andrew Bosali and Lady Tovua. The particulars and facts pleaded are devoid of any substance to establish any agency relationship and should also be dismissed on that ground.
  6. Further, when the opportunity was given to provide further and better particulars on the issue of Agency, in Alphonse Botu’s case, the response was that this is unknown to the Petitioner, and the only reliance was placed on the assertion that he was a vocal supporter of the First Respondent. If this is unknown, it cannot be proved.
  7. Secondly, it is normal during electioneering and campaign periods, for supporters in some instances to be loud, noisy and vocal about their support. That however, does not necessarily make them an agent, and further facts need to be pleaded. That has not been done in this case.
  8. The same goes towards Andrew Bosali’s case, relying on the mere fact that he is a vocal and known supporter of the First Respondent.
  9. With regards to Lady Tovua’s case, the facts pleaded are simply insufficient.
  10. This brings me to the second and more substantive part of the offence of forgery, being that of forging a ballot paper or destroying or interfering with a ballot box or packet of ballot papers.
  11. On these two separate offences, I accept submissions of Mr. Ale that the particulars pleaded including the sworn statements filed in support of this third ground to be inadequate, vague and based on conjectures and speculations and nothing more. There is simply no fact pleaded as to what if any ballot box or packet of ballot papers, let alone any specific ballot paper, may have been subjected to the offence of forgery or been interfered with.
  12. I am satisfied this ground should be struck out as being frivolous or vexatious and that there is simply insufficient grounds pleaded to warrant the hearing of the petition.

Particulars of Breaches of Electoral Act 2018

  1. There are about nine allegations of breaches of the provisions of the Electoral Act 2018, which the Petitioner alleges affected the result of the election and therefore the petition should be permitted to proceed to trial.

Ground 4.1: On 17 April 2024 at Belaha Relocation Polling Station, a polling station with approximately 339 registered voters, the Presiding Officer namely Gloria Votua failed to:

Paragraph 4.1.1 Fill in the Ballot Paper Account in the presence of the Polling Agents pursuant to section 81 of the Electoral Act 2018.
Paragraph 4.1.2 Properly administer the issuance of ballot papers to electors in accordance with section 83 of the Electoral Act 2018.
Paragraph 4.1.3 Properly administer the casting of votes by Electors with disabilities in accordance with Section 85 of the Electoral Act 2018.
Paragraph 4.1.4 Secure and parcel all voting materials or items in the presence of the Polling Agents in accordance with Section 92 of the Electoral Act 2018.
  1. Four provisions in the Electoral Act, sections 81, 83, 85 and 92 are referred to in these allegations as having been breached and thereby affecting the validity of the 339 votes cast in the Belaha Relocation Polling Station.
  2. I will deal with each provision and the breaches alleged in relation to them separately herewith.

The First Breach alleged:

On 17 April 2024 at Belaha Relocation Polling Station, a polling station with approximately 339 registered voters, the Presiding Officer namely Gloria Votua failed to:
Paragraph 4.1.1 Fill in the Ballot Paper Account in the presence of the Polling Agents pursuant to section 81 of the Electoral Act 2018.
  1. With regards to the first breach alleged in relation to section 81, the allegation is made against the Presiding Officer, Gloria Votua that she failed to fill in the Ballot Paper Account in the presence of the Polling Agents.
  2. Section 81 provides as follows:
  3. Section 81 is headed “Ballot Paper Account” and sets out certain things which the Presiding Officer (Gloria Votua) is required to do before the voting begins. This is to fill out an account in the approved form (“ballot paper account”), details which should record the following:
  4. Section 92(3) in turn relates to the functions that a presiding officer is required to do at the close of voting, inter alia as follows:

Discussion and Decision.

  1. I have had the opportunity to consider the submissions in support of this allegation and the submissions of Ms. Fakari’i, of Counsel for the Second Respondent, including the submissions of Mr. Ale in support of the application for strike out, and concur with the submissions of Ms. Fakari’i and Mr. Ale, that this ground or allegation should be struck out as being frivolous or vexatious, and that there are simply insufficient particulars pleaded to warrant the hearing of the petition.
  2. There is no requirement for the Presiding Officer to fill in the Ballot Paper Account in the presence of the Polling Agents pursuant to section 81 of the Electoral Act, but even if that were the case, there is simply no material (particulars) pleaded, to show any error was committed, how many and whether it affected the result or not. Again this pleading suffers badly from a lack of detail, is vague and ambiguous, and presumptuous in the least.

The Second Breach alleged:

On 17 April 2024 at Belaha Relocation Polling Station, a polling station with approximately 339 registered voters, the Presiding Officer namely Gloria Votua failed to:
Paragraph 4.1.2 Properly administer the issuance of ballot papers to electors in accordance with section 83 of the Electoral Act 2018.
  1. Section 83 provides:
  2. This section 83, is headed “Issuing Ballot Papers” and sets out in detail the functions of a Presiding Officer in relation to the process of voting. In essence this is to ensure that those casting their votes are clearly identified, had not voted before, and ensure their votes are accurately recorded.
  3. Again this ground must be struck out for its generality, ambiguity and vagueness. It merely alleges a failure to properly administer the issuance of ballot papers to electors but again fails to particularise how that has occurred, how many, in what way and to what extent.
  4. Secondly, it also fails to particularise how it may have affected the results.

The Third Breach alleged:

On 17 April 2024 at Belaha Relocation Polling Station, a polling station with approximately 339 registered voters, the Presiding Officer namely Gloria Votua failed to:
Paragraph 4.1.3 Properly administer the casting of votes by Electors with disabilities in accordance with Section 85 of the Electoral Act 2018.
  1. Section 85 provides:
  2. This section 85, is headed “Recording of Votes by Electors with Disabilities” and sets out in detail the functions of a Presiding Officer in relation to the process of voting by persons with disabilities. Again the objective being to enable a person with disability to be able to cast his or her vote accurately and correctly.
  3. In her submissions, Ms. Fakari’i again points out the failure in the Petition to particularise the details as to who was affected, how many and in what way there was a failure to comply or assist the disabled persons.
  4. I am also satisfied the particulars fail to set out how the results may have been affected. I am satisfied this ground should also be struck out for the same reasons given in the above two grounds and that no amendment will cure the defect.

The Fourth Breach alleged:

On 17 April 2024 at Belaha Relocation Polling Station, a polling station with approximately 339 registered voters, the Presiding Officer namely Gloria Votua failed to:
Paragraph 4.1.4 Secure and parcel all voting materials or items in the presence of the Polling Agents in accordance with Section 92 of the Electoral Act 2018.
  1. Section 92 provides:
  2. Section 92(1) sets out the Presiding Officer’s functions at the close of voting. These included having the items set out in subsection (2) to be parcelled and secured into separate packets, and securely seal each packet to prevent anything else being inserted into them.
  3. I am satisfied as correctly submitted by Ms. Fakari’i that this ground suffers from the same defects as the earlier grounds in terms of lack of specificity and detail in the particulars as to the manner in which the Presiding Officer failed to parcel the voting materials correctly in the presence of the Polling Agents and the identity of the voting materials or items that were not parcelled properly.
  4. It suffers from the same fatal defects of being too general, lacking in sufficient details and vague and ambiguous.
  5. As well it fails to set out how this non-compliance with section 92 of the Electoral Act has affected the results of the election and accordingly should be dismissed as well herewith.

Ground 5, Paragraph 4.2: On 20 April 2024, at the Henderson Police Station premises where the container holding Ballot Boxes and Sacks of the Central Guadalcanal Constituency was located, one Alphonse Botu without lawful authority interfered with Ballot Boxes and Sacks of the Central Guadalcanal Constituency contrary to Section 122 (f) of the Electoral Act 2018.

  1. Under this ground it is alleged that Alphonse Botu had interfered with Ballot Boxes and Sacks of the Central Guadalcanal Constituency contrary to section 122(f) of the Electoral Act 2018.
  2. The said section describes the offence of interference with ballot papers and ballot boxes as follows:
  3. Again this ground suffers from the same lack of detail and particularity as to how the ballot boxes and sacks of the Central Guadalcanal Constituency were interfered with by Alphonse Botu and how many ballot papers had been interfered or tampered with.
  4. The elements of the offence in section 122 specify five types of interferences or offences with ballot papers and ballot boxes. It is incumbent therefore upon the Petitioner to specify which one of those offences was committed in this particular allegation and how many ballot boxes and papers were interfered with or affected. Did he remove a ballot paper or forge a ballot paper, and if so the details should be provided. Did he deface, destroy a ballot paper, or supply another person with a ballot paper, or destroy, takes, opens or interferes with a ballot box or packet of ballot papers? The particulars are simply insufficient to put the case to the Second Respondent so that he is aware as to what is being alleged against him. That has not been done in this.
  5. A number of sworn statements have been filed to support the ambiguous allegation but again nothing specific or detailed has been provided other than mere observations, conjectures and assumptions, that the offence of forgery and interference of ballot boxes and or ballot papers has been committed. These again have failed to demonstrate in the least that the offences stipulated in section 122(f) of the Electoral Act had been committed.
  6. This ground also fails to specify how the alleged forgery and interferences would have affected the results.
  7. There is another more fundamental issue that has not been addressed and this is that Alphonse Botu, in his sworn statement filed 17th July 2024 in response, clarified and confirmed that he was an electoral official, appointed as the Returning Officer in a completely different ward, the Ghaobata Ward, in the Guadalcanal Provincial Elections[6].
  8. He explained that the ballot boxes for the Ghaobata Ward and the Central Guadalcanal Constituency were secured and stored in the same Shipping Container, which was located at the Henderson Police Station and was guarded by Police Officers[7]. This would be consistent with and explain why he entered the same Shipping Container to access ballot boxes he was responsible for. After the counting of the ballot boxes for the Ghaobata Ward had been concluded and results declared, the counted ballot boxes were then taken back secured at the Henderson Police Station.
  9. He explained that on the 20th April 2024, he went and removed the Ballot Boxes for the Ghaobata Ward from the Shipping Container. He placed the counted ballot papers in six Ballot Boxes and took them with him to the Counting Centre at the Henderson Court to sort out properly before delivering them back to the Electoral Commission[8].
  10. He says the place was heavily guarded and monitored by the police throughout.
  11. He says that when he got to the Henderson Court, it was also taken up by other Guadalcanal Constituencies conducting counting and as it became clear the venue would not be available and it was getting late, noting that the situation was tense at the Police Station, he took the counted ballot boxes and stored them at the residence of his Aunty, Lady Tovua[9].
  12. He says that he asked a relative of his, Andrew Bosali as well as a Police Escort to assist him in transporting the counted ballot boxes from Henderson Police Station to the Henderson Court[10] and later to Lady Tovua’s residence for storage.
  13. On the next day, 21st April 2024 he collected the ballot boxes from Lady Tovua’s residence and brought them back to the Henderson Court for sorting out before returning them to the Electoral Commission[11].
  14. He states as an Electoral Official he is aware of his responsibilities and denies any form of interference with the electoral process.
  15. It is pertinent to note that the “counted Ballot Boxes” had nothing to do with the Central Guadalcanal Constituency. This is all the more reason why this ground should fail and be dismissed as being frivolous or vexatious, and or that there is simply insufficient particulars pleaded to warrant the hearing of the petition.
  16. I am satisfied no amendment will cure the defect on the particulars and materials before this court and this ground is dismissed herewith.

Ground 6, Paragraph 4.3: On 21 April 2024, at the purportedly fixed counting place at Henderson Police Station, the Returning Officer failed to give to the Counting Agents of the Petitioner and Other Candidates, the statement of ballot papers pursuant to section 100 of the Electoral Act 2018.

  1. The breach alleged in this ground relates to the provisions of section 100 of the Electoral Act, in particular in relation to purportedly a requirement imposed that the Returning Officer is obliged to provide to the Counting Agents of the Candidates, the Statement of Ballot Papers.
  2. This section relates to the verification process of ballot papers and sets out in fairly great detail what a Returning Officer is required to do to ensure that the validity, accuracy, safety and security of ballot papers is preserved at all times.
  3. The specific provision referred to in this very general allegation seems to be hat of subsection 100(3)(d) and (e) and subsection 100(4), I quote:
Subsection 100(4) in turn provides:
  1. Again as correctly pointed out by Ms. Fakari’i, this ground should also fail not only for insufficient particulars being pleaded, which are too general, ambiguous and vague but also fails to demonstrate how that failure had affected results in the election.
  2. It is also pertinent to note that subsection 100(4) of the Electoral Act expressly states that “the returning officer must, on request, give a counting agent the statement prepared under subsection (3) (d)”. There is no mandatory requirement to give a statement of ballot papers as set out in subsection 100(3) (d). This however can be provided on request. There is nothing pleaded to say that this was requested and not given.
  3. Finally, again there is nothing pleaded to demonstrate how the alleged non-compliance if it did occur had affected the results. I am satisfied this ground should be dismissed herewith.

Ground 7, Paragraph 4.4: On 22 April 2024, at Henderson in Honiara, one Alphonse Botu and Andrew Bosali, an agent of the 1st Respondent without lawful authority interfered with six (6) Ballot Boxes and Sacks of the Central Guadalcanal Constituency contrary to Section 122(f) of the Electoral Act 2018.

  1. This ground can be shortly disposed of as having been addressed under Ground 5. It raises the same issue and for the same reasons set out there this ground should be dismissed as well.

Ground 8, Paragraph 4.5: Between 17 April 2024 to 19 April 2024, Ballot Boxes and Sacks were transported via private vehicles from all Polling Stations within the Central Guadalcanal Constituency to Henderson Court premises or to the purportedly fixed counting place at Henderson Police Station premises and during such time the Ballot Boxes and Sacks were not kept in safe custody by the Chief Electoral Officer contrary to section 134(1) of the Electoral Act 2018.

  1. This allegation asserts that there has been a breach of section 134(1) of the Electoral Act 2018 by the Chief Electoral Officer by not ensuring that Ballot Boxes and Sacks for the Central Guadalcanal Constituency were kept safe and secure by the use of private vehicles to transport them from the Polling Stations to the Henderson Court premises.
  2. Section 134(1) provides as follows:

“134. Custody of election documents

(1) The CEO must:

(a) ensure that any document relating to the conduct of an election is kept in safe custody; and
(b) on the date fixed under subsection (2), destroy the following documents:
(i) all used and unused ballot papers;
(ii) all spoilt ballot papers;
(iii) all used and unused tendered ballot papers;
(iv) any other document authorised by the Commission to be destroyed.”
  1. This provision imposes a general duty of care upon the Chief Electoral Officer for the safe custody of all election documents at all times to ensure that there is no possibility of interference with those documents in any way.
  2. Where it is alleged there has been a breach, it is incumbent upon the Petitioner to spell out in sufficient detail the particulars that relate to the allegation. How that has occurred, when and where, and how many ballot boxes and Sacks were affected or tampered with, and how that has affected the result of the elections.
  3. Making a bare allegation that because private vehicles were used, tampering and interference with the Ballot Boxes and Sacks had occurred cannot be sufficient, without more details provided. Further particulars of such lack of safe custody and providing details of which and how they had been affected is necessary in this situation. That has not been done in this case.
  4. In her statement on this issue by Julian Chonigolo, the Returning Officer for Central Guadalcanal, confirmed that all the Ballot Boxes were safely retrieved after close of voting and brought over to the Henderson Police Station for safe storage. In three instances, she pointed out that the boxes had to be transported over by helicopter.
  5. At paragraph 28 of her sworn statement she states that, “I also want to add that most of the vehicles used to transport ballot boxes back to the Counting Centres were private vehicles but were hired to do transportation of ballot boxes.”
  6. At paragraph 11 of her sworn statement filed on the 17 July 2024 she denied any forms of tampering or interference with the Ballot boxes by anyone.
  7. In her submissions on this ground, Ms. Fakari’i also points out that during elections there were vehicles that had to be hired to assist with the transportation of Ballot Boxes from the Polling Stations to the counting venues. She says that in such a nation-wide operation, it would be impracticable and unreasonable to expect only Government Vehicles to carry out such exercise, for there were simply not enough Government Vehicles around.
  8. I agree with her submission on this that this ground should be dismissed, on the ground that insufficient particulars had been pleaded, in particular with the use of private vehicles for transportation and movement of ballot boxes etc. that it amounted to a breach and tampering of the ballot boxes.
  9. I agree with her submissions as well that the Respondent/ Petitioner had also failed to show how the results were affected by any such breaches on safe custody, if any, and or the use of private vehicles and that this ground should be dismissed as raising insufficient grounds to warrant the hearing of the petition.

Ground 9, Paragraph 4.6: Between 17 April 2024 to 20 April 2024, no counting of votes occurred despite all Ballot Boxes and Sacks for the Central Guadalcanal Constituency arriving at the Henderson Court premises and/or the Henderson Police Station premises since on or around 19 April 2024 contrary to Section 100 and Section 102 of the Electoral Act 2018.

  1. This ground asserts that because counting did not take place on or around the 19 April 2024 that this amounted to a breach and which affected the results of the election pursuant to sections 100 and 102 of the Electoral Act 2018.
  2. Section 100 again is about the verification process in respect of the ballot papers. It sets out in meticulous terms how that is done.
  3. Section 102 does say something about the counting process at subsection (2) as follows:

“(2) The counting of votes must, as far as is practicable, proceed continuously.”

  1. Apart from that, there is nothing to require that the counting process must start once all Ballot Boxes and Sacks had arrived at the counting station or centre, which must be correct, for the decision as to when counting should start is an administrative decision to be taken by all responsible officers presiding at the counting centre and taking into account all the necessary factors that may impinge upon the decision on when to start counting.
  2. For instance, section 99 of the Electoral Act, sets out the list of persons who may be present at and during the counting process as follows:

“99. Persons who may be present during counting

The following persons are entitled to be in a counting centre and be present during each process under this Part:

(a) the electoral manager for the relevant province;
(b) the returning officer and each assistant returning officer for the relevant constituency;
(c) a counting agent assigned to the counting centre;
(d) a police officer on duty at the counting centre;
(e) a person accredited by the Commission to monitor or observe the election;
(f) any other person permitted by the returning officer.”
  1. The Returning Officer is obliged to determine if those persons are available and present before counting is commenced.
  2. Apart from that, it is obvious that there will be other logistics issues that may need to be resolved before counting is commenced, including security and safety matters and suitability of a venue for counting purposes.
  3. In this particular instance, the sworn statement of Julian Chonigolo filed 17 July 2024 at paragraphs 13 – 20, provides an explanation for the delay in the commencement of counting during that time as follows:

“13. I confirm that the counting for Central Guadalcanal Province was delayed. This was because counting agents and candidates did not want counting to proceed at the allocated National Archives which was the allocated venue for the Central Guadalcanal Constituency.

14. Because of that I had to check the other alternate counting venues allocated to Guadalcanal Province Constituencies in order to swiftly start counting.

15. I then told my counting team to move to Honiara High Secondary School as that was another alternate venue. However, we were also told that the Honiara City Council had not granted permission for us to conduct counting at that venue.

16. At that time I was acting on instructions of the Election Manager who was received complaints from various counting agents regarding the counting venues. From there we shifted to secure another venue, which is the King George National Secondary School.

17. At King George Secondary School, I was confronted by a few counting agents stating that they did not agree on that as a counting venue as well. The manner in which they approached me was quite unprofessional and I felt threatened by their actions.

18. Because of that my team and I went back to the Henderson Police Station which appeared to be the preferred counting venue for counting agents.

19. It should be noted that throughout all this moving around to secure counting venue that was accepted by the counting agents, all ballot papers for Central Guadalcanal constituency were secured at the Henderson Police Station until the venue for counting was sorted out.

20. We then commenced counting at the Henderson Police Station after North Guadalcanal, finished counting.”

  1. Again the particulars pleaded are simply insufficient, vague and ambiguous as to what and how the breach, in terms of the delay may have affected the accuracy and validity of the counting process and ultimately the results.
  2. I agree with Counsel Ms. Fakari’i and Mr. Ale that insufficient facts had been pleaded to support the allegation that the delay had anything to do with the results of the Election and therefore this ground should also dismissed herewith.

Ground 10, Paragraph 4.7: Between 17 April 2024 to 23 April 2024, no place or date or time was fixed by the Electoral Commission to count the votes for the Central Guadalcanal Constituency pursuant to section 98 of the Electoral Act 2018 which resulted in the movement of Ballot Boxes and Sacks in and out of Henderson Court Premises or the Henderson Police Station premises.

  1. This allegation is related to the earlier allegation regarding the issue of fixing a place, date or time for the counting of the votes pursuant to section 98 of the Electoral Act 2018, and which it is alleged resulted in the movements of Ballot Boxes and Sacks in and out of the Henderson Court Premises or the Henderson Police Station Premises.
  2. Section 98 of the Electoral Act provides as follows:

“98. Place and time of count

The Commission must fix a place, date and time for the counting of votes for each constituency.”

  1. This section requires that the Commission must fix a place, date and time for the counting of the votes.
  2. The allegation however fails to state in the particulars how the failure, if any may have affected the results.
  3. It merely assumes that because the place, date and time were not fixed that the results had been affected without starting the particulars as to how that may have occurred.
  4. It seems that this allegation is not so much about the fact that there was no fixing of the place, date or time, but more that there was a delay in doing that, as set out in the earlier ground in paragraph 4.6 above. It makes the assumption as well, that as a result the votes were affected but did not go as far to make that connection and set out the particulars.
  5. In the sworn statement of Julian Chonigolo, referred to above (paragraphs 13 – 20), she outlines a clear and detailed account as to what transpired on that particular occasion before counting was commenced. In particular at paragraph 19, she confirms as follows:

“19. It should be noted that throughout all this moving around to secure counting venue that was accepted by the counting agents, all ballot papers for Central Guadalcanal constituency were secured at the Henderson Police Station until the venue for counting was sorted out.”

  1. There is simply no allegation that the security and even the movements of those Ballot Boxes at any time during that time was ever compromised and that it affected the results of the election. If however there was a compromise, how many were compromised is also not stated in the particulars.
  2. I am satisfied this ground should be struck out as frivolous or vexatious, and that there are simply insufficient grounds to warrant the hearing of the petition.

Ground 11, Paragraph 4.8: Between 21 April 2024 to 24 April 2024, during the course of the verification and counting of votes, there were numerous intervals or breaks occasioned by the Returning Officer, Provincial Election Manager and the Chief Electoral Officer affecting the continuous counting of the votes contrary to section 102 of the Electoral Act 2018.

  1. Again this ground can shortly be disposed of. It makes an assumption that having numerous intervals and breaks during the process of counting and verification contravened section 102 of the Electoral Act and thereby affected the results of the election.
  2. The relevant provision is section 102(2) of the Electoral Act, which provides as follows:

“The counting of votes must, as far as is practicable, proceed continuously.” (Emphasis added).

  1. This is a very practical provision allowing for breaks as and when required, bearing in mind that counting and verification can be a very tedious and demanding process and heavily taxing on their powers of concentration and focus, and tiring. Having regular breaks ensures that those in charge remain vigilant and alert.
  2. I concur with Ms. Fakari’i that insufficient particulars have been pleaded in support of this allegation. If there were any particular interval or breaks that were in breach of this provision, then those should have been spelled out in the pleadings. For instance, how many and when did they occur?
  3. Of greater significance is the failure to state in the pleadings how those breaks would have affected the final results or outcome.
  4. In her sworn statement[12], Julian Chonigolo states as follows:

“21. The counting process was tedious work. For that reason, I ensured that the counting officials had time for restroom breaks, eat or even check on family members.

22. The well-being of counting officials important as it would enable them to conduct counting efficiently.”

  1. It is for the Respondent/ Petitioner to show that the intervals and breaks were unreasonable and in breach of the relevant provision, affected the counting process, by how much and ultimately affected the final outcome of the results. That has not been done in this case as well and I am satisfied this ground too should be dismissed as being frivolous or vexatious and demonstrating insufficient grounds to warrant the hearing of the petition.

Ground 12, Paragraph 4.9: Between 17 April 2024 to 24 April 2024, Ballot Boxes and Sacks were transported via private vehicles from all Polling Stations within the Constituency to Henderson Court Premises or to the purportedly fixed counting place at Henderson Police Station and during such time the Ballot Boxes and Sacks were not kept in safe custody by the Chief Electoral Officer contrary to section 134 (1) of the Electoral Act 2018.

  1. This is in essence a repeat of allegation 4.5, the only difference being the period of time pleaded from 17 – 24 April 2024.
  2. I am satisfied the reasons set out in dealing with ground 4.5 are relevant and equally apply to this ground and for the same reasons this ground is also dismissed herewith.

Ground 13, Paragraph 5: The Petitioner further avers that the breaches of the Electoral Act 2018 occasioned by the 2nd Respondents may have resulted in tempering (sic) of Ballot Boxes and Sacks enabling the 1st Respondent to be returned as the elected Member of Parliament for the Constituency.

  1. This ground can also be shortly disposed of as demonstrating insufficient grounds to warrant the hearing of the petition.
  2. As correctly pointed out by Ms. Fakari’i in her submissions, the allegations of breaches set out in the Petition from Paragraphs 4 to Paragraph 5 show that in principle they relate to allegations of breaches or non-compliances with regards to omissions or breaches of duty, by an Electoral Official, before, during or after polling.
  3. These relate to the manner in which Electoral Officials are to conduct elections. Ms. Fakari’i submits that this brings into focus the provisions of section 112 of the Electoral Act 2018, in so far as they relate to the questions of non-compliance with the Act.
  4. Section 112 provides as follows:

“112. Non-compliance with this Act

(1) This section applies if it is established during a hearing of an election petition that, in relation the election concerned, there was:
(a) a failure to comply with the time required for doing anything under this Act; or
(b) an omission or irregularity in filling out a form required under this Act; or
(c) a lack of or defect in the appointment of an electoral official or polling or counting agent;

Or

(d) an absence of, or mistake or omission or breach of duty by, an electoral official before, during, or after polling.
(2) The Court must not declare the election invalid only because of the matter mentioned in subsection (1) if the Court is satisfied that:
  1. This provision relates to the conduct of Electoral Officials during elections and expressly provides that where there are instances of such breaches etc., the Court may not declare an Election invalid if it is satisfied that there has been substantial compliance with the Constitution, the Electoral Act and any other written law, and that those allegations of breaches did not affect the result of the election.
  2. The most that can be said about this allegation is that there is a suggestion that there may have been a tampering of Ballot Boxes and Sacks but no further particulars of tampering or interference being provided as to any such Ballot Boxes or Sacks, for instance how many had been affected.
  3. This allegation suffers the same fate as other grounds in terms of inadequate pleadings, over-generalizations, vagueness and ambiguity, and cannot be allowed to progress to a hearing. I am satisfied this ground should also be dismissed as frivolous or vexatious and providing insufficient grounds to warrant the hearing of the petition.

Ground 14, Paragraph 6: The Petitioner further avers that on 24 April 2024 when the counting of votes concluded, the Returning Officer in accordance with Section 106 of the Electoral Act 2018 declared the 1st Respondent as the candidate with the majority of votes cast as the elected Member of Parliament for the Constituency.
Paragraph 7. The Petitioner asserts that the results announced after the counting concluded and the results published in the gazette differ significantly.

  1. It is not in issue that there was a difference in the results that were announced after conclusion of counting and the published results in the Gazette. Whatever the difference however, the First Respondent’s results were still the highest and with a marked difference between him and the second candidate, the Petitioner.
  2. There is however a logical and transparent explanation for the discrepancy. This is again accounted for in the sworn statements of Julian Chonigolo, Returning Officer for the Central Guadalcanal Constituency, filed 17 July 2024, and that of Jasper Highwood Anisi, Chief Electoral Officer, filed 16 July 2024.
  3. At paragraph 23 of her sworn statement, Ms. Chonigolo sets out in “Annexure JC-2”, the correct “Summary of Votes Per Candidate” for the Central Guadalcanal Constituency. The Applicant polled 3,454 votes as opposed to the Respondent/ Petitioner/ polling 1,592 votes.
  4. It is not in issue that this is the correct summary of votes and not that published in the Gazette, which was corrected later.
  5. In his sworn statement, at paragraphs 4-14, Jasper Highwood Anisi, clarifies too how that mistake occurred and which resulted in an erroneous result being published in the Gazette.
  6. At paragraphs 4-5, he states that after the results had been announced publicly, the returning officers would send the Summary of Votes to the Electoral Office. Their Data Entry Officers would then enter figures onto their electronic forms and provide instructions to the Attorney-General’s Chambers, Drafting Division to publish the results.
  7. He states that due to an oversight on the part of their officers resulting in incorrect data being entered, the erroneous results were sent to the Attorney-General’s Chambers for publication in the Gazette (see paragraph 7).
  8. He confirmed at paragraph 8, that the accurate information that should have been sent to the Drafting Division is that set out in the “Summary of Votes Per Candidate” provided by the Returning Officer, Ms. Chonigolo dated 24th April 2024.
  9. He noted that the incorrect figures were noticed after the publication of the results in the Gazette and after a thorough review was conducted of the forms and information provided. It was then noted that the Data Entry Officers had omitted to enter votes for Batch 2 in the Summary of Votes document.
  10. With the omission however of entry of the Batch 2 votes, the First Respondent still had the highest number of votes at 2877, while the Respondent/ Petitioner had 1,457 votes. After the omission was corrected and appropriate entry for Batch 2 votes was done, the First Respondent received a total of 3,454 votes, while the Respondent/ Petitioner polled 1,592 votes.
  11. The difference between the two results was widened after the Batch 2 votes were recorded, from 1420 to 1862 votes.
  12. I am satisfied the pleadings under this ground suffer from the same fate of insufficiency of particulars, over-generalizations, vagueness and ambiguity. It failed to set out the facts and circumstances relating to this error causing the difference and how it affected the results, noting that when this omission was corrected, the votes in favour of the Respondent/ Petitioner did increase but was still inadequate to affect the results, the clear difference in votes being a total of 1,862 votes.
  13. I am satisfied this ground too should be dismissed as frivolous or vexatious and providing insufficient grounds to warrant the hearing of the petition.
  14. In the result, the Petition should be struck out and I order costs accordingly in favour of the Applicant/ First Respondent and Second Respondent to be taxed, if not agreed.

ORDERS OF THE COURT:

  1. Grant application for strike out herewith with costs, in favour of the Applicant / First Respondent and Second Respondents, to be taxed if not agreed.
  2. Direct that a Certificate of this Court’s Order or dismissal be issued herewith, confirming that the Applicant/ First Respondent is the duly elected Member of Parliament for the Central Guadalcanal Constituency, to the Electoral Commission, His Excellency the Governor-General of Solomon Islands, and the Speaker of Parliament.

Sir Albert R. Palmer CBE
The Court.

[1] [2020] SBHC 72; HCSI-CC 280 of 2019 (1st May 2020)
[2] See Petitioner’s Answers to Further and Better Particulars filed on 1st July 2024
[3] [2020] SBHC 7; HCSI-CC 277 of 2019 (17 February 2020), paragraphs 17 and 18.
[4] Electoral (Amendment) Act 2023.
[5] [2004] SBHC 116; HC-CC 326 of 2002 (1st June 2004)
[6] See paragraph 3 of Alphonse Botu’s sworn statement filed 17 July 2024.
[7] (ibid) paragraph 6 of Alphonse Botu’s sworn statement.
[8] (ibid) see paragraphs 11 – 13.
[9] (ibid) see paragraphs 18 – 22.
[10] (ibid) see paragraphs 15-17.
[11] (ibid) see paragraph 23.
[12] Sworn Statement of Julian Chonigolo filed 17 July 2024 at paragraphs 21 – 22.

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