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Kopu v Bonuga [2024] SBHC 146; HCSI-CC 193 of 2024 (30 October 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 193 of 2024

BETWEEN

DUDDLEY KOPU
Petitioner

AND:

JAMES BONUGA
1^st Respondent

AND:

ATTORNEY GENERAL
(Representing the Electoral Commissioner, the Chief Electoral Officer, the Election Manager for Temotu Province and the Returning Officer Temotu Pele Constituency)
2nd Respondent

Date of Hearing: 26 September 2024 & 18 October 2024
Date of Decision: 30 October 2024

Mr Schottler Kwaiga & Mr Lazarus Kwaiga for the Petitioner/1st Respondent
Mr Francis Waleanisia for the 1st Respondent/Applicant
Mrs Victoria Muaki for the 2nd Respondent

RULING

Bird PJ:

1. Solomon Islands went to the polls for the National General Elections on 17 April 2024. Mr Duddley Kopu, the Petitioner and Mr James Bonuga, the 1^st Respondent were two of the candidates who contested the Temotu Pele Constituency.
2. On 30 April 2024, the 1^st Respondent was declared as the Member of Parliament for the Constituency. He polled 1,788 votes. The Petitioner was the runner-up. He polled 1,289 votes. The vote difference was 499.
3. Being aggrieved with the election result, the Petitioner filed this petition. The grounds for the Petitioner’s challenge are twofold. In the first set of his grounds, he asserted that the return of the 1^st Respondent as elected Member of Parliament for the Constituency was procured and promoted by corrupt and illegal practices occasioned by him either in person or by his agents purporting to act on his instructions. The second set of grounds is based on allegation of breach of the Electoral Act 2018 by the 2^nd Respondent.
4. The petition was filed and served in accordance with the law. The 1^st and 2^nd Respondents have filed their respective defences. The Petitioner has not filed replies to the defences. Apart from the filing of his defence, the 1^st Respondent also filed an application to strike out the Petitioner’s petition or parts thereof pursuant to rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR).

Issues

5. Under the said rule, the issues that I must determine are the following:-
   1. Is the Petitioner’s petition frivolous and vexatious?
   2. Does it plead a reasonable cause of action?
   3. Is it an abuse of the process of the court?

The case for the 1st Respondent

6. Apart from rule 9.75 of the CPR, the 1^st Respondent/Applicant also relies upon section 111 (1) (a) and (b) (i) and (ii) of the Electoral Act 2018 (EA). Both provisions relate to proceedings which are frivolous and vexatious.
7. It is the case for the 1^st Respondent/Applicant that the allegations contained in paragraphs 3.1 to 3.13 of the Petitioner/1^st Respondent’s petition are frivolous and vexatious. Most of the allegations relate to alleged breaches of section 126 of the EA. That section makes election bribery an offence.
8. The allegations are in relation to actions of purported agents of the 1^st Respondent/Applicant as well as personally by him. It is asserted that the 1^st Respondent/Applicant and his purported agents were influencing or were trying to influence a number of people to vote for him. They were allegedly influencing or were trying to influence people to vote as such through promises of monies, materials, promises of job opportunities and intimidation.
9. The 1^st Respondent say that the allegation in paragraphs 3.1, 3.2, 3.4, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12 and 3.13 are mere allegations. The pleadings have fallen short of stating the principal and agency relationship. All of these allegations do not contain how the purported agents were termed as such. The pleadings are too general. They do not contain and describe facts that could assist the court to determine the alleged relationship between them.
10. It is also his case that the sworn statements filed in support of the allegations have failed to describe the relationship of agency between him and the purported agents. The very brief facts stated in the allegations are not enough to put him to his defence.
11. The burden of proof in relation to election bribery is higher than the normal civil standard. Consequently and in order to prove allegations under s. 126 of the EA, the evidence must be stronger and must be sufficiently described in the pleadings and supporting sworn statements. It is not enough to just aver to the facts and assert them as the actual facts.
12. The expression used in the pleading and sworn statements in support merely described the relationship as ‘1^st Respondents agents’ and ‘through his agents’. The Petitioner/1^st Respondent has not gone further to state the very facts of the agency relationship. The sworn statements in support have also fallen short of elaborating on the alleged agency relationship.
13. The next issue raised by the 1^st Respondent/Applicant is the lack of pleading and evidence to describe and verify the intention to influence those named persons to vote for him. Grounds 3.1 to 3.4 and 3.7 to 3.12 relate to promises of money and materials as tools to influence the named persons therein. It is unclear, how and in what way their decisions to vote were influenced with the promises of money and materials as alleged.
14. In the sworn statements filed in support of the allegations, there is only the general statements that the promises of money and materials have influenced their decision to vote. The allegations are general assertions. They do not contain facts.
15. In support of his position, the 1^st Respondent/Applicant relies on a number of cases. The authority on point is the decision of the Honourable Chief Justice Palmer in Sasako v Sofu and Anor in CC 277 of 2019. In that case, the court stated inter alia that the Petitioner is obliged to set out the facts and circumstances on which he relies on as creating the agency.
16. In relation to the intention to promise or give a thing to influence someone to vote in a certain way, the court set out matters that must be pleaded and stated in evidence. They included matters like, facts and circumstances of the allegations must be set out. They must also state how the voters were influenced. It all relates back to the pleading to see the material facts that supported the allegation that the money or materials were promised or were given with the intention of influencing the voters.
17. With that case authority which is on point, it is the case for the 1^st Respondent/Applicant that the pleading had fallen short of the threshold as discussed to allow this court to further manage the matter to trial. The pleading in this case are so lacking that even an amendment could not remedy it. As the pleading stands with the supporting sworn statement filed in support, the court’s jurisdiction could not be invoked to further entertain it.
18. With regard to allegations 3.5 and 3.6, it is further the position of the 1^st Respondent/Applicant that he denies such allegation. His denial can be seen in paragraph 7 of his defence. The Petitioner/1^st Respondent did not file any reply to the defence. His denial is supported in his filed sworn statement. It is further argued that the requirement on specific pleading regarding the element of intention is also amiss. These grounds must also be struck out.
19. The above submission also relate to allegations contained in paragraphs 3.7 to 3.13. The general submission on lack of sufficient pleading in the statement of case also applies. There is insufficient facts and materials provided to invoke the jurisdiction of the courts to continue entertaining this proceeding.
20. Specific to allegation 3.9, it is the case for the 1^st Respondent/Applicant that the description of time from October 2023 to April 2024 is too broad. It included time outside of the campaign period. It is also argued that the allegation lack facts that can allow him to succinctly respond. The evidence provided by him and his witness would confirm that the solar panels were requested of him in about March 2023. They were provided for church related activities in about September 2023. The dates specified by the Petitioner/1^st Respondent do not correspond to what had transpired. In any event the pleading of facts do not address the issue of intent to influence under section 126 of the EA.
21. As per allegation 3.10 and 3.11, there was no sworn statement filed in support of what is stated therein. In any event, it is also argued that the pleadings are lacking in factual scenario. They are also caught upon the principle in the Sasako case discussed above.
22. The same argument also relate to grounds 3.12 and 3.13. The phrases used being ‘campaigning’ and ‘interference’ were not described. There no facts stated as to how the alleged illegal campaigning was conducted. It is also unclear from the facts as to how the alleged interference occurred.
23. In view of the omissions of actual facts of the allegations, the First/Respondent/Applicant could not possibly respond and defend himself in respect of what is alleged. The said allegations are too general. They do not provide particulars on how the illegal campaigning was done. They also do no state the particulars of interference that was carried out by the purported agent. The factual description on how the agent was connected to the First Respondent/Applicant are also not provided. These are also caught in the principle outlined in the Sasako case. In totality therefore, it is the 1^st Respondent/Applicants case that allegations contained in paragraphs 3.1 to 3.13 should be struck out for want of pleading. They are all frivolous and vexatious. They do not disclose a reasonable cause of action and are an abuse of the process of the court.
24. In respect of allegations contained in paragraphs 4.1 to 4.9 of the petition, the 1^st Respondent/Applicant is generally of the view that all these allegations are merely levelled against the 2^nd Respondent. There is no allegation that relate to him. Neither the petition nor the sworn statements filed in support have implicated him in any way. Consequently, it is his case that those grounds will not affect him. They must be struck out under rule 9.75 of the CPR.
25. In the alternative, it is his case that the allegations made against the 2^nd Respondent are in relation to sections 28, 83 (1), 120 (a) and (b), 122 (a) and 134 of the EA. There is no allegation under s. 126 of the Act. It is also his case that the pleadings under those paragraphs are lacking in facts and should be struck out.

The position of the 2nd Respondent

26. The allegations against the 2^nd Respondent is contained in paragraphs 4.1 to 4.8 and paragraphs 5 and 6 of the petition. In paragraph 4.1, the alleged incident occurred at Nupani Polling Station. It is alleged that the Presiding Officer and the Ballot Paper Issuer issued four (4) Parliamentary ballot papers to unknown persons without the said unknown persons attending to the Polling Station. It is further alleged that in so doing, they have interfered with ballot papers. They rely on s. 83 (1) and s. 122 of the EA.
27. The 2^nd Respondent deny the allegation. They say that the Presiding Officer and the Ballot Paper Issuer have a legal duty under s. 78 of the EA to ensure appropriate arrangements are made for electors with disabilities or other special needs to cast their votes. In compliance with their duty, they have visited the homes of the four voters with special needs to enable them to cast their votes.
28. Having said that, it is further the 2^nd Respondent’s case that the provision of s. 112 (2) of the EA becomes relevant. That provision is clear. The court is not entitled to declare an election invalid even if it is satisfied as to the matters specified in subsection (1). So if the court is satisfied that the registration of electors and the conduct of the election substantially complied with the Constitution, this Act and any other written law, and that the matters mentioned in subsection (1) did not affect the result of the election, the court must not declare the election invalid.
29. Upon that basis, it is further the case for the 2^nd Respondent that the Petitioner/1^st Respondent has failed to show in their pleading and supporting sworn statements how the allegation would affect the result of the election.
30. In his pleading the allegation is about four unknown persons who allegedly casted their votes elsewhere but not at the Polling Station. The vote difference between the 1^st Respondent/Applicant and the Petitioner/1^st Respondent was 499 votes. The question to be asked therefore is how could it be possible that the inclusion or exclusion of the four unknown voters would affect the result of the election. Only 4 votes cannot affect the election result. This allegation must therefore be struck out.
31. Allegation 4.2 is related to the first allegation but it is made under s. 120 (a) and (b) of the EA. The allegation is impersonating the four unknown voters. The position of the 1^st Respondent is covered under their submission on the first allegation.
32. In respect to allegation 4.3, the Presiding Officers was alleged to have taken the ballot boxes from Nyivale Polling Station to her residence before handing over the boxes to the Returning Officer and Police contrary to s. 122 of the EA. The 2^nd Respondent say that under s. 27 (2) of the EA, his/her duty is to ensure that the ballot boxes were safe before, during and after the polling day. They further say that it was not safe to keep the ballot boxes at the polling station. It was decided that the boxes were securely locked in a room in her residence.
33. With that position, it is further their case that there is no factual information in the pleading that can verify how the Presiding Officer had interfered with the ballot boxes. There is also no pleading to assist him in relation to the requirement of s. 112 (2) of the Act. Without those facts pleaded, the ground must be struck out.
34. Allegations 4. 4 and 4.5 are similar to allegation 4.1 and the position of the 1^st Respondent is as discussed in paragraphs 26 to 30 above.
35. In relation to allegation 4.6, the Petitioner/1^st Respondent say that the Returning Officer had failed to verify the number of casted votes to the number of counted votes. That was done contrary to s. 122 of the EA. He claimed that the numbers were inconsistent.
36. The 2^nd Respondent says that the alleged omission was not particularised in the Petitioner/1^st Respondent’s pleading. Apart from saying that the two numbers were inconsistent to each other, there were no numbers pleaded therein. The 2^nd Respondent says that the numbers had balanced out. There was no inconsistencies. They further say that without the relevant pleadings and also no evidence on the requirement of s.112 (2) of the EA, this allegation must be struck out.
37. As to allegation 4.7, it is alleged by the Petitioner/1^st Respondent that the appointments of Assisting Returning Officers, Presiding Officers, Polling Assistance and Counting Officials for the Constituency were done contrary to s. 28 of the EA. In relation to the allegation, the 2^nd Respondent says that there is insufficient facts pleaded therein. The allegation is too general in nature. It does not particularise what and which part of their appointment breaches s. 28 of the Act. This allegation must be struck out.
38. In relation to allegation 4.8, it is alleged that the ballot boxes and sacks for the Constituency were stored in different locations and were not kept in safe custody of the Chief Electoral Officer contrary to s. 134 (1) of the EA. In response, the 2^nd Respondent say that the ballot boxes and sacks were stored and kept in safe locations with very tight security. Apart from stating the allegation, the facts of the allegation were not particularised. There was no pleading as to where the ballot boxes and sacks were stored. There was no pleading why the locations were not safe.
39. It is therefore the position of the 2^nd Respondent that the allegation in the Petitioner’s pleading is not supported with facts. There was no particulars pleaded on the allegation. It is merely a general allegation without the relevant particulars. It must be struck out.
40. In relation to allegation 5 and 6, it is the position of the 2^nd Respondent that the allegations are mere assumptions. The breaches as particularised above are only issues of irregularities or breach of duty by the Electoral Officers. They must be dismissed.
41. The summary of the 2^nd Respondent’s position is that the pleading on allegations 4.1 to 4.8 against them lacks facts and particulars. The pleadings are insufficient to allow them to properly defend themselves. They also say that even if the allegations have merit, which is denied, s. 112 (2) of the Act will suffice. There is no facts stated and no sworn statements filed that can verify and confirm that these allegations will and can affect the election results.

The position of the Petitioner/1st Respondent

42. As far as I can understand the position of the Petitioner/1^st Respondent, he is basically saying that the pleading as appeared in his petition are sufficient to take this proceeding to trial. The allegations as pleaded in paragraphs 3 and 4 of the petition are sufficient in all respect. The issue of agency and intention as raised by the 1^st Respondent/Applicant can properly be left for trial. They rely on the case authority of Sikua and Vokia (2019) HC- CC 265 of 2019. In that case, the court was of the view that the issue of intent should be dealt with at trial. Parties must be allowed to adduce evidence and prove their respective cases.
43. It is further the case for the Petitioner/1^st Respondent that the allegations as stated must be proved to the entire satisfaction of the court. That in his view requires that the petition must be allowed to go to trial. In a nutshell therefore, his position is that he has sufficiently pleaded all of the allegations in paragraphs 3 and 4 of the petition and this court must be entitled to investigate the allegations at trial. It is premature to end this proceeding at an interlocutory stage.
44. It is also the Petitioner/1^st Respondent’s case that the defects in his pleading are minor defects that could be cured by way of an amendment. He says that he has disclosed a reasonable cause of action and this proceeding should not be struck out.
45. In respect of allegation 4, the Petitioner/1^st Respondent says that there is no denial by them on the alleged breaches of the EA. What is contained in their supporting sworn statements and submission are their justification on the alleged breaches. The justification and their truthfulness can only be tested and ascertained by the court during trial proper after cross-examination of the relevant witnesses. It is therefore his case that there is legal justification that this proceeding be progressed to trial and should not be struck out. There is always the possibility of an amendment to the petition when and if the court requires.
46. As to the provision of s. 112 (2) of the EA, and its application, I have not cited any submission by the Petitioner/1^st Respondent. It is nonetheless the case for the Petitioner/1^st Respondent that this proceeding should not be struck out. If need be, an amendment could be ordered by the court to verify and rectify their pleading. This proceeding must be proceeded to trial to allow both parties test the truthfulness of their respective evidences. The petitioner must be given a fair opportunity to argue his case at trial.

Discussion

47. This petition was filed by the Petitioner/1^st Respondent to nullify the election of the 1^st Respondent/Applicant as elected member of Parliament for the Temotu Pele Constituency. The grounds specified in the petition is that the election of 1^st Respondent/Applicant as Member of Parliament for the Constituency was procured or promoted by corrupt and illegal practices occasioned by him either in person or by his agents or persons purporting to act on his instructions. The other ground is that the return of the 1^st Respondent/Applicant as the elected Member of Parliament for the Constituency was marred by breaches of the provisions of the EA occasioned by the 2^nd Respondent.
48. The main contention of the 1^st Respondent/Applicant alluded to in his application with the supporting sworn statements is that the pleadings in the Petitioner’s/1^st Respondent’s statement of case are lacking in facts.
49. The allegations against him are those contained in paragraphs 3.1 to 3.13 of the petition. The allegations contained in paragraphs 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10 and 3.11 were framed as contravening section 126 of the EA. Excepting for allegation 3.5 and 3.6 which are alleged against the 1^st Respondent/Applicant personally, the rest of these allegations are against purported agents. The allegation in paragraphs 3.12 concerns alleged breach of s. 124 and 62 of the said Act and the allegation in paragraph 3.13 concerns alleged breach of s. 121 (b) of the Act.
50. As per allegations contained in paragraphs 3.1, 3.2, 3.3, 3.4, 3.7, 3.8, 3.9, 3.10 and 3.11, the facts are very general in nature and too brief. There were no particulars provided to properly verify and describe the allegations. Take for example allegation 3.2 in which the wordings used are :- ‘On 5 March 2024 at Banepe Village, the 1^st Respondent through his agent namely Patterson Tagua promised one Joseph Bonnie $6,000.00 with the intent of influencing the said Joseph Bonnie to vote for 1^st Respondent contrary to section 126 of the Electoral Act 2018’. It is noted that all of the allegations are worded in similar fashion.
51. Section 126 of the EA provides for election bribery. It is a criminal creating provision. If a person is found guilty under that section, the consequences are those contained in section 129 thereof. On that token, it requires a higher burden of proof than other civil proceedings.
52. As alluded to in paragraph 50 above, the allegation is very generally stated. Under s. 126 of the Act, pleading should include, how were the purported agents termed as such. It must also be pleaded whether they were campaign managers, counting agents or to state the capacity they hold or act as agents. Apart from the issue of agency, there must also be proof of intention to influence upon an allegation under s. 126 of the Act.
53. I have noted that the issue of intent to influence is also not pleaded. It is not clear how the persons who were promised rewards were influenced. It could have been pleaded and further deposed to in sworn statements that the persons who were promised rewards, have in fact voted for the 1^st Respondent/Applicant during election day. That aspect is missing from the pleading and sworn statements filed in support. There is no nexus on the promised rewards to an intention to influence and whether or not they were actually influenced to vote in a particular way.
54. In any event, it is essential that all material facts must be pleaded. The sworn statements are merely used as evidence to verify the facts that are pleaded. If all material facts are not pleaded, the sworn statements could not be used to cure that defect. The basis of the whole case is what is pleaded. In this case, the basis of this proceeding is what has been pleaded in the petition.
55. Under rule 9.75 (2) of the CPR, it is discretionary for the court to hear and take into account the evidence adduced in a hearing of an application to strike out. That rule reiterates the need that pleadings in any case must be clearly particularised and sufficient to invoke the power of the court to entertain it.
56. In relation to the above discussion, I have also taken into consideration the various cases relied upon by all counsel. I take particular reference to the Sasako case and the comments of the Honourable Chief Justice therein. I am inclined to adopt the reasoning and principle cited by the learned Chief Justice.
57. I have also noted that counsel for the Petitioner/1^st Respondent has submitted that the judgment of the Honourable Chief Justice in that case was made after trial. I have also noted that aspect of the case. I am nonetheless of the view, that having read that judgment, it only confirms to me the very fact that any allegation of such a nature as in this proceeding, cannot and will never succeed after trial. There has been lack of sufficient pleadings in the Sasako case.
58. That abnormality or defect can never be cured even at trial. It would therefore be time wastage and will become very costly if I decide to maintain the petition in such a circumstance. On that note, Mr Kwaiga’s argument could not be sustained. In any event, the recent rulings of the Honourable Chief Justice in the case of Peter Soqoilo v Jimson Tanagada - CC185 of 2024 and Jeromy Manengelea Rex v Peter Shanel Agovaka – CC176 of 2024 will confirm my above view.
59. If I may also mention, that section 126 of the EA has five (5) subsections to it. All of the allegations contained in paragraphs 3.1, 3.2, 3.3, 3.4, 3.7, 3.8, 3.9, 3.10 and 3.11 are very broad and general under that section. No specific subparagraphs were cited that relate to each of the allegations. The court is not assisted with general citation of sections relied upon by the Petitioner/1^st Respondent. What that could have meant is that the whole of section 126 of the Act has been allegedly breached. That could not be the case.
60. Having thoroughly discussed what is required in a strike out application, I am of the view that the allegations contained in paragraphs 3.1, 3.2, 3.3, 3.4, 3.7, 3.8, 3.9, 3.10 and 3.11 of the petition are not sufficiently substantiated in the pleadings and cannot be sustained and are struck out in their entirety.
61. In relation to allegations contained in paragraphs 3.5 and 3.6, the issue of agency is not relevant because they are allegations against the 1^st Respondent/Applicant personally. The only issue that needed my determination is the nexus between the promised benefits and the intention to influence.
62. Paragraph 3.5 relates to a promise of $6,000.00 to 3 persons in particular and others in attendance. From the 3 particular persons named, there is no indication in that paragraph, how the alleged promise had influenced how they voted on election day. There is nothing confirming that they actually voted for the 1^st Respondent/Applicant on election day because they were influenced by the promise of $6,000.00 as alleged.
63. I am therefore not satisfied that the allegation contained in paragraph 3.5 can be sustained upon the general pleading in the petition. That ground is hereby struck out.
64. On the allegation contained in paragraph 3.6, it relates to a promise of employment benefit on the labour mobility programme through the Ministry of Foreign Affairs and External Trade. Again the allegation is very general in nature. There is no connection of the promised benefit to how the said person was influenced to vote in a particular way.
65. In view of my discussion in paragraphs 58 to 60 above, I am also inclined to strike out this allegation.
66. As stated above, the allegation contained in paragraph 3.12 concerns alleged breach of s. 124 and 62 of the EA. It relates to engaging in campaign activity outside campaign period. The campaign period under s. 62 ends 24 hours before 17 April 2024.
67. Under paragraph 3.12, a purported agent of the 1^st Respondent/Applicant was alleged to have entertained and engaged over 10 people next to Nupani Polling Station with the intention to influence them to vote for him. None of the 10 or so people were named in the allegation.
68. Section 124 of the Act is also an offence creating provision and proof of it is higher than the civil standard. The pleading must describe and state how and in way the purported agent was entertaining and engaging the 10 people or so as required under that provision. The timing of the alleged incident in unclear. The allegation relates to a specific incident but it was said to have taken place between 16 and 17 April 2024. The timing is too broad. The specific date and time should have been stated.
69. In light of the above discussion, I am not satisfied that enough pleading has been made in relation to paragraph 3.12 to put the 1^st Respondent/Applicant to succinctly put up a defence. That allegation is struck out.
70. In relation to paragraph 3.13, the allegation relates to a purported agent of the 1^st Respondent/Applicant who was alleged to have been interfering with electors preparing to cast their votes by obtaining information about whom they were intending to vote for. She was also alleged to have remained at the Polling Station even after she casted her vote. This allegation is based on section 121 (b) of the EA.
71. Apart from stating that the purported agent was interfering with electors, there was no mention of any names of persons who were allegedly interfered with. It is also not stated where about at the Polling Station she was located. There is no specific facts provided to sustain this allegation. I also strike out that allegation. On the totality therefore, all of the allegations contained in paragraphs 3.1 to 3.13 of the petition filed on 28 May 2024 are hereby struck out.
72. The allegations against the Attorney General are contained in paragraphs 4.1 to 4.8 of the petition. They alleged breaches of particular provisions of the EA. Allegations contained in paragraphs 4.1 and 4.4 relate to alleged breach of section 83 (1) of the Act and was thereby interfering with ballot papers under section 122. Allegations 4.2 and 4.5 relate to those allegations but are framed in reference to section 120 (a) and (b) of the Act. The allegations all relate to a number of persons who were unable to cast their votes on election day at the relevant Polling Stations due to alleged personal disabilities. The number in total was 11.
73. Part 9 of the EA creates offences in the electoral process. Sections 122 and 120 are contained in Part 9 of the Act. Section 122 describes six circumstances that could amount to interfering with ballot papers and ballot boxes. The allegations in 4.1 and 4.4 do not specify which of the six circumstances are relevant. This will lead this court in a wild goose chase to try and ascertain the relevant circumstance that fits the said allegation. That is not part of my duty as the court to try and ascertain that. That aspect must be properly pleaded by the Petitioner/1^st Respondent and the correct legal provisions must be succinctly cited.
74. In any event, the Presiding Officer was alleged to have issued ballot papers to 11 voters who did not cast their votes at the Polling Stations. It is further alleged that in so doing he has interfered with ballot papers. Consequently it is further alleged he has impersonated the 11 people and thereby occasioning fraudulent voting.
75. I have noted that apart from making the allegations, no names of the 11 people were provided. It is also not pleaded as to manner in which the alleged fraudulent voting was occasioned and where was it occasioned. These are very essential facts that must be pleaded. They are missing. Only general pleading were made but no particulars were provided.
76. The other issue that needs to be addressed in such a scenario is the provision of section 112 (2) of the Act. That provision is most essential in dealing with allegations of breaches of the Act. It requires the Petitioner/1^st Respondent to make a number quantification to verify the allegation. That ordinarily means that it must be pleaded how the allegation can affect the result of the election.
77. In this case, the 1^st Respondent/Applicant was duly elected as Member of Parliament for Temotu Pele Constituency with a difference of 449 votes. On the highest, if the 11 votes were declared invalid because of the allegations, would that have any effect on the election of the 1^st Respondent/Applicant? I do not think it would be in this instant.
78. Having ascertained that position, I am of the view that the allegations contained in paragraphs 4.1, 4.2, 4.4 and 4.5 cannot be sustained pursuant to section 112 (2) of the Act. They are hereby struck.
79. Allegation 4.3 relates to the Presiding Officer at Nyivale Polling Station who was alleged to have taken all the ballot boxes to his residence before they were collected for counting contravening section 122 of the Act. I hereby refer to paragraph 73 above and will refer to the discussions therein. It is not made succinctly clear which of the circumstances relates to this allegation. The facts described in that allegations are not enough to allow the court to sustain this allegation. It is hereby struck out.
80. Allegation 4.6 relates to inconsistencies of the ballot papers counted and ballot papers verified. Having read the allegation, it is also very general in nature. It does not confirm the number of votes counted and number of votes verified. That will leave the parties and the court mystified as to the actual allegation. If the Petitioner/1^st Respondent has counting agents, they should have noted the number inconsistency. That information could have been included in this allegation and sufficiently pleaded. There is absolutely no particulars to verify that allegation. It is hereby strike it out.
81. Allegation 4. 7 relates to the appointments of all Electoral Officials as being made contrary to section 28 of the EA. Section 28 contains 4 subparagraphs. There is nothing in the allegation as to which of the subparagraphs are contravened as alleged. In effect, no particulars were provided under the allegation. It is so broad and it will not give the Attorney General a reasonable opportunity to properly defend itself. The factual circumstances of allegation must be specified. I further refer to my discussion in paragraph 73 above.
82. In the absence of the particulars to substantiate their allegation, the Attorney General is denied its opportunity to properly state their defence. This allegation is hereby struck out for want of proper particulars of the said allegation.
83. As per allegation 4.8, it relates to a breach of section 134 (1) of the Act. Section 134 (1) talks about what documents are to be kept in safe custody and what documents are to be destroyed after a certain date.
84. It is alleged that ballot boxes from the Constituency were kept at different locations between 17 and 18 April 2024. They did not state in that allegations where and how the ballot boxes were stored. It is common knowledge and could be taken judicial notice of that the Constituency is made up of several different islands. So the question arises as to how could the ballot boxes be stored together on one single location at the material time.
85. It is also unclear in the allegation as to where exactly the ballot boxes were stored and why those places were deemed unsafe. It is not pleaded. The allegation as it stand is so broad without proper description of the relevant facts and it could not be sustained even at trial. I hereby struck out the said allegation.
86. In relation to paragraphs 5, 6 and 7 of the petition and in light of my above discussion of all of the allegations against the 1^st Respondent/Applicant and the 2^nd Respondent, I am unable to find that the 2^nd Respondent procured or promoted the 1^st Respondent’s/Applicant’s return as elected Member of Parliament for Temotu Pele Constituency.
87. With regard to the issue whether an application to strike out is capable to be filed after a party has filed a defence, I have read and noted the respective submissions and case authorities. I can therefore state that an application to strike can be filed for determination at any stage of a proceeding. Upon that basis, it is a non-issue in this case. In closing and due to the nature of this proceeding, submissions for possible amendment is not viable.
88. Having determined that all of the allegations against the 1^st Respondent/Applicant and the 2^nd Respondent have been struck out under rule 9.75 of the CPR, I hereby declare that the election of Honourable James Bonuga as Member of Parliament for the Temotu Pele Constituency is valid.
89. The effect of the courts’ ruling therefore is that Mr Duddley Kopu’s petition filed on 28 May 2024 is hereby struck out under rule 9.75 of the CPR. Consequently, I hereby order cost against him. I further direct that a certificate confirming the validity of the election of Honourable James Bonuga as the duly elected candidate for Temotu Pele Constituency is to be issued to:-
    • (i) The Governor General;
    • (ii) The Speaker of the National Parliament; and
    • (iii) The Electoral Commission.

THE COURT
Justice Maelyn Bird
Puisne Judge