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Maina v Magga [2008] SBHC 19; HCSI-CC 228 of 2006 (18 March 2008)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 228 of 2006

MICHAEL MAINA

V

MARTIN MAGGA AND ANOTHER

(Faukona, J.)

Date of Hearing: 10th, 11th, 15th, 16th, 17th, 18th & 19th October 2007,
19th, 20th & 21st November 2007, 11th December 2007 and 8th January 2008

Date of Judgment: 18th March 2008

Wilson Rano for the Petitioner
Dwen Tigulu for the Respondent
Robert Firigeni for the Attorney-General

JUDGMENT

FAUKONA, J:

1. This election petition was brought in this court pursuant to Section 83(1) of the National Parliament (Electoral Provisions) Act here in after called the "ACT" Cap. 87, and the Election Petition Rules 1976, hereinafter called the "Rules".

2. The Petitioner, Michael Maina was one of the six candidates contesting in the National General Election for the Temotu Pele Constituency in the Temotu Province. The other contesting candidates are the Respondent (Martin Magga), Joseph Bonie, Barnabas Nimelie, Ross Hepworth and Simon Peter Leinga.

3. On 5th April 2006 a National General Election was held. After counting of votes the Returning Officer on 8th April 2006 declared and returned Martin Magga as being duly elected. He polled 877 votes while the Petitioner polled 766 votes, a majority or difference of 111 votes.

4. The Petitioner’s Case

The Petitioner alleges that before and during the said election, the First Respondent was by himself and his agents Richard Bwekuli, Henry Vagi, John Mark Paleure, Eric Peniopu, Frank Polau and Johnson Tawopi guilty of corrupt practices of procuring the commission of the offence of bribery and treating before and during the election contrary to the provisions of sections 71,[1] 72(1)[2] and 73[3] of the Act, in that the first Respondent and his said agents procured named voters in Temotu Pele Constituency to vote for the first Respondent.

5. The Petitioner now prays to this court that election of the First Respondent as a member of Parliament for Temotu Pele Constituency be declared void on two grounds:-

1. that during the campaign for the National General Election the First Respondent was involved in bribery contrary to section 70[4] and 71[5] of the Act in that the First Respondent by himself or through his agent give, agrees to give, promises, procure or endeavour to procure, or offer items of value and money to the voters, the result of which had induced them to vote for him or refrain from voting.

2. that during the campaign for the National General Election the First Respondent was involved in treating contrary to section 72(1)[6] of the Act in that the First Respondent by himself or through his agents gave supplied and/or promised items of value to the people, the result of which had induced and procured voters to vote for him.

6. The Respondent’s Case

The First Respondent denied each and every allegations and denied himself being involved in bribery, treating and undue influence. He also denied having knowledge of and involvement of his supporters or agents in any corrupt practices. The First Respondent was elected as a result of a need for change. And this has shown in the election result.

7. Counsel for the Attorney-General Mr. Firigeni was present in accordance with Rule 27 of the Election Petition Rules 1976, despite the fact that there was no ground in the petition alleging corrupt practice by election officials.

8. The Law

Section 71[7] of the Act spells out different forms of bribery. Section 72[8] sets out different forms of treating. Section 73[9] defines the offence of undue influence. Section 66(1)[10] of the Act read as follows:

"(1) No election shall be valid if any corrupt or illegal practice is committed in connection there with by the candidate elected or his agent".

9. Clear from the wordings of this subsection that if the Petitioner can prove that the candidate elected (Respondent) or his agent paid certain sums of money or valuable consideration to any person on behalf of the elector, or corruptly gives or pays the expenses of giving or providing food, drink or entertainment for the express purpose of obtaining their votes at the subsequent election the first respondent, his agent or supporter would be guilty of corrupt or illegal practices.

10. Section 70 of the Act states, it is a criminal offence to be guilty of bribery, treating or undue influence which is deemed to be a corrupt practice. The Act has made it clear that bribery, treating and undue influence are offences that comes under the general term corrupt or illegal practices and provide common penalty for all.

11. What is a Corrupt or Illegal Practice?

"Corrupt imports intention, does not mean wickedly, immorally or dishonest, or anything of that sort, but doing something knowing that it is wrong and doing it with the object and intention of doing that thing which the statute intended to forbid"[11]

12. A classic example of treating is in the case of Alisae v Salaka,[12] Wood CJ stated-

"Corrupt means doing the thing which the legislature forbids. The question whether the intention was to influence the vote must depend upon circumstances and the manner in which refreshment was given, the time when it was done and very much upon the nature of the entertainment".

13. In the same case Wood CJ, at paragraph 2 made distinction between bribery and treating. He said,

"There are a clear distinction between treating and bribery in two respects, first as it affects the candidate, and secondly as it affects the voter. In bribery there must exist a corrupt arrangement, but not so in treating, where votes are sought by a display of generosity".

14. A classic example of bribery is in the case of Ulufa’alu v. Saemala[13] Muria CJ stated,

"However, the fact of the giving of the bribe or an agreement to give or to offer the bribe or the promise to procure the bribe must be established by evidence. There must be a giving of the bribe or an agreement to give the bribe or a promise to procure the bribe for the purpose of inducing a voter to vote or not to vote".

15. This paragraph explicitly expounded by the actual transaction of bribery to which if proved, the election is void.

16 The Elements of Bribery

Section 71[14] sets out the elements of bribery and they are as follows:

(i) the Respondent or his agent or supporter

(ii) directly or indirectly

(iii) give, lend

(iv) agree to give or lend

(v) offers promises to procure or endeavour to procure any money or valuable consideration to the elector or any person on behalf of the elector in order to induce an elector to vote or refrain from voting.

17. The Elements of treating

Section 72(1)[15] sets out the elements of treating.

(i). The Respondent, his agent or supporter

(ii) Corruptly

(iii) Before, after or during election

(iv) Directly or Indirectly

(v) Gives, provides, pays or promise to give or pay.

The expenses of giving or providing food, drink entertainment to any person, for the purpose of corruptly influencing that person or any other person to vote or refrain from voting.

18 The Burden of Proof

In Solomon Islands the test to be applied where allegation of corrupt practises is raised in an election petition case, has finally been settled in the case of John Maetia -v- Charles Dausabea,[16] which His Lordship Sir John Muria CJ stated,

"From these observations, I am of the view that the test in Alisae –v- Salaka is that the test to be followed in Solomon Islands when allegations of corrupt practices as bribery, treating or undue influence are raised in an election petition. That required standard of proof is stricter in that the allegations must be proved to the entire satisfactions of the court. The evidence must be clear and equivocal in order to enable the court to be entirely satisfied that the allegation of corrupt practices is made out and not simply on the mere balance of probabilities which is a test that is appropriate to the other allegations of breaches of the election laws".

19. The test was adopted in the case of Gigini v. Notere[17] with approval. Therefore, to lay things at rest, it is with no doubt the standard of proof to be applied in election petitions, in particular, where the issues of corrupt or illegal practices were raised; is that the court must be satisfied to its entire satisfaction that the allegations are made out.

20. The test is higher than the balance of probabilities but lower than the criminal standard of proof beyond reasonable doubt. It is a half way test between the civil and criminal standards of proof.

21. The Issues for determination

The issues for determination derived from the elements to be proved under sections 66(2), 70 and 71 of the Electoral Act. There are four basic elements required to be established if the allegations of corrupt practice is to be succeed:-

(a) Whether there was a corrupt or illegal practice committed.

(b) Whether the corrupt or illegal practices was committed for the purpose of promoting or procuring the election of the Respondent.

(c) Whether the corrupt or illegal practice was so extensively prevail.

(d) Whether the extensiveness of the practice was that they may reasonably supposed to have affected the result.

22. Should the court find the evidence in support of the allegations are sufficiently clear, and upon applying the standard required, the consequential effect of a corrupt practice will render two results

(a) an election be held invalid under section 66(1) of the Act, and

(b) a person guilty under section 70 of the Act.

23. Before I asses the evidence may I point out that it is a public knowledge, and I expect all would agree that there was a National General Election held on 5th April 2006, after a proclamation was made by the Governor-General on 22nd February 2006, in accordance with Section 24 of the Act.

24. The Act was silent about the period of campaign. As such it was open to any intended candidate, agents, or representative or supporter to campaign even before the proclamation was made.

25. The prohibition Sections of the Act is quite clear by making references which c over wider scope of persons whether it be an intended candidate, agent, supporter or representative involved in bribery treating, or undue influence for the purpose of inducing an elector not to vote or refrain from voting is guilty under section 70 of the Act.

26. The Evidence

In assessing the evidence I intend to deal with each ground, bearing in mind the issues for determination. Noted from the final submissions filed by the Petitioner’s Counsel, it is apparent that there were no submissions in respect of ground (a), (d), (e), (g), (i) (k), (l) and (o). No reason was given for omitting them probably they were abandoned. Submissions only cover incident at Nopoli, Ngamubulou and Otelo respectively. However, I will deal with the grounds in sequence following the order in the amended election petition.

Ground (a)

Although there was no submission by the Petitioner’s Counsel to encompasses this ground; since evidence had been led by both parties I am obliged to deal with it accordingly.

This ground contain an allegation that on an unknown date in March 2006, at Ngamanie village, Reef Islands, the First Respondent gave $100.00 to Ngamanie Community and uttered words to induce registered voters to vote for him at the April 5 2006 Elections.

27. To substantiate this ground the petitioner called one witness Mr. Francis Satu (PW5). Mr. Satu told the Court that he was at Ngamanie village attending Ngamanie village Community fundraising. It was on Sunday two weeks prior to the election date. It was 9am or going towards 10 am when the First Respondent and about twenty of his campaigners arrived. They were on their way to Otambe village to campaign.

28. Mr. Satu said he was at one of the stalls when the First Respondent came and dropped two $50.00 notes into a basket and collected one green coconut. He was about 30cm away. Mr. Bonagi then announced that Magga was their man for the election. This witness denied hearing the First Respondent uttered anything at the fundraising.

29. To rebut that evidence the respondent calls three witnesses. The Fist Respondent (RW1) was the first witness. He told the court that he arrived at Ngamanie village with his campaign party at about 9:30 am or 10am. They were on their way to Otambe village to campaign. His party comprised of about twenty people.

30. On arrival at Ngamanie village there was a fundraising by the village Community. The First Respondent then said he put or paid one $50.00 note on a tray and told his followers to get some coconut and some cooked food. All his followers had a coconut to drink each and something to eat. They also got some uncooked food for the money.

31. The First Respondent could not recall seeing PW5 Mr. Satu at Ngamanie village that morning but he recognised Mr. Bonagi was there.

32. The First Respondent denied passing Ngamanie village on Sunday but on Saturday. He also stated that he did not normally conduct his campaign on Sundays. He denied that whilst at the fundraising told anyone about the election and denied any of his followers mentioned anything in relation to election, and denied anyone else talked about election including those from Ngamanie village. He denied hearing anyone saying he was the one to vote for.

33. He also informed the court that fundraising were not normally held on Sundays as directed by the Bishop of Diocese of Temotu.

34. Respondent called Mr. Bonagi (RW4) who in evidence strongly disputed seeing Mr. Satu (PW5) at Ngamanie village that day. He was from Ngamanie village and was present and involved in the fundraising drive. He said the fundraising was held on Saturday and not Sunday. He was present and closed by when he saw the First Respondent dropped one $50.00 note into a basket, and not $100.00. And then him and his party got green coconuts, pudding, banana, cabbage and some cooked and uncooked food. He said the price for each green coconut was 50¢ and $10.00 for a heap of potatoes and food. He told the court that the First Respondent’s party comprised of about twenty plus people.

35. He denied hearing anything said by the First Respondent about election that morning, and denied seeing Mr. Satu (PW5) at the fundraising. In fact he was at his village at Otelo. Respondent also called Frank Polau who also accompanied the group. His evidence is similar to RW4 Mr. Bonagi.

36. What comprise this ground as it appears from the amended petition is that the First Respondent gave $100.00 to Ngamanie Community and himself uttered words to induce voters to vote for him. PW5 whom the petitioner called to support the allegation said in evidence that he was close to the stall and saw the First Respondent gave two $50.00 notes into a basket. But he did not hear him uttered any words. His evidence is that he heard a man from Ngamanie said this is the man we will vote. Upon cross examination PW5 confirmed that in answering Mr. Tigulu’s question that only a man from Ngamanie or a market man uttered those words.

37. This confirms the case for the First Respondent who denied uttering any words to induce people to vote for him. Mr. Bonagi confirms that, that he did not hear Respondent uttered any words of inducement.

38. On the issue of giving of $100 the First Respondent admitted giving $50.00 for purchase of goods at the fundraising for his followers. That is his obligation required by custom to feed his followers.

39. PW5 told the court that $100 given by the First Respondent was for value of just one green coconut. First Respondent told the court that the $50 was for the purchase of green coconuts for each of his followers and for some cooked and uncooked food. RW 3 and RW 4 confirmed that $50.00 given was for green coconuts, potatoes, cabbage, cooked and uncooked food. If the price for each coconut was 50¢ and $10.00 for one heap of potatoes then the $50.00 should be a fair price for all the goods to feed more than twenty people.

40. PW5 also told the court that the fundraising was held on a Sunday. This was denied by RW1, 3 and 4. And their reason was in two fold. That the Bishop of Diocese of Temotu would not allow such activities to be held on Sundays and secondly RW1 was so certain that he had never conducted his campaign on Sundays. I tend to belief the respondent’s witnesses that the fundraising at Ngamanie village was held on Saturday and not Sunday.

41. On the entire evidence I found that PW5 was not a credible and reliable witness. His evidence concerning words uttered were from a man from Ngamanie a direct conflict with the tone of the allegation in this ground. Therefore PW5’s version that $100.00 was given for mere one green coconut cannot be of any truthfulness. I am not impressed by his evidence; he is either over exaggerated or not being there at all according to RW4. I accept the explanation and evidence of RW1, 3 and 4 as to what actually transpired at Ngamanie village that morning. And I accept their reasons for being there on Saturday and not Sunday.

42. Finally I accept the First Respondent’s evidence that he gave $50.00 and not $100.00 and uttered no words to induce anyone to vote for him. This was corroborated by RW3 and Mr. Frank Polau (RW5) who accompanied the First Respondents Group.

43. Even if $100.00 was given, perhaps with the intention that $50.00 was for the food and $50.00 for the fundraising drive as a charity gift, will it amount to bribery and illegal practice? Having said that Halsbury’s Laws of England (4th Edition) Volume 15, at page 422, paragraph 774 state,

"The distribution of charitable gifts to voters has always been allowed. On the other hand what called charitable gifts may be merely a specious and subtle form of bribery. If a gift is charitable it will not become bribery because of the use made of it, even if political capital is made out of the gift; it is not possible by way of subsequent act to make that which is legal at that time illegal and criminal".

44. This passage was quoted with approval by Wood CJ in Thugea v. Paeni.[18]

45. Finally I am not satisfied, on the required standard, to my satisfaction that the evidence in support of this ground has been made out, hence this ground must fail.

Ground b

46. This ground contain an allegation that on unknown date in March 2006 at Ngamubulou village, Reef Islands Rudgard Bwekuli who was an agent or campaigner for the First Respondent gave a big cooking pot to Nester Kilei and uttered words to induce her to vote to for the First Respondent on April 5 2006 Elections.

47. The Petitioner called one witness Mr. John Knox. John Knox is an agent or supporter of the Petitioner. Mr. Knox was advised by the Petitioner to investigate corrupt practices alleged to have occurred before and during the election. He interviewed certain named woman and Nester Kilei was one of them.

48. Mr. Knox told the court that Nester Kilei told him that she received a cooking pot from Rudgard Bwekeli. At the time of giving Mr. Rudgard told her that he was the agent of the First Respondent. In exchange for the cooking pot she would vote for the First Respondent.

49. The Respondent on the other hand called Mr. Bwekuli and Nester Kilei to clarify the allegation. Mr. Bwekeli admitted he gave a pot from his shop to Nester Kilei on request from him as a Provincial Member. He denied inducing Nester Kilei to vote for Magga, and he denied giving the pot in March 2006. Nester Kilei was related to him. He said he gave the pot in June 2005, at that time he was not sure who would stand for elections. Nester Kilei admitted in evidence that she received a pot from Mr. Bwekuli and denied meeting and interrogated by Mr. Knox. There was no evidence related to the size of the pot.

50. Both Bwekuli and Kilei concertedly maintained the pot was given in June 2005 and not in March 2006.

51. Mr. Knox asserted himself that he was the Petitioner’s agent or supporter. The interrogation he had with Kilei cannot be seen as impartial. Often in such circumstances agents or supporters have high possibility in framing and concocted evidence to suit their case? Exactly what happened in this case? Why should grave allegations as bribery or treating handed to Police for investigations and lay charges where possible.

52. Mr. Knox can affirm to court that he met or talk to Kilei on such a time, but he cannot persuade the court to belief him as to what was asserted to him by Kilei, that will be hearsay. I regard Mr. Knox evidence as hearsay and inadmissible in this court. See Cross on Evidence 2nd Edition Page 3 paragraph 2, "Hearsay may therefore be defined as a third person’s assertion narrated to the court by a witness for the purpose of establishing the truth of that which was asserted".

I find Mr. Knox’s evidence failed to fall in one of the categories to be admissible as exception of the hearsay rule.

53. I tend to belief what the Respondent’s witnesses said. That the pot was given on request. Knowing that he was a Provincial Member Mr. Bwekuli had an obligation to his people. Such request is common in Solomon Islands. Particularly for items like pots, knives lamp or cash. I accepted that at the time of giving nothing uttered to induce Nester Kilei to vote for Magga. And the giving as confirmed by Mr. Bwekuli and Kilei was in June 2005. Bwekuli said at that time he was not sure who would stand for election and I belief him.

54. I noted that there are certain inconsistencies in the evidence of Mr. Bwekuli and Kilei but they are related to dates, personal marriage life, age of children not related to the core issue of this ground. Concerning this ground both were firm on the date and the purpose of giving.

55. I am not satisfied on the evidence adduced to support this ground hence it must fail.

Ground c and d

56. The allegation in this two grounds were that Mr. Bwekuli sometimes in March 2006 at Ngamubulou village gave a bush knife to Hilda Namona and a lamp to Margaret Naliki, and uttered words to induce both to vote for the First Respondent.

57. The only witness called to substantiate the two grounds is Mr. John Knox. Much has been said about the evidence of John Knox in ground (b). His evidence is absolutely hearsay. Therefore inadmissible and cannot be accepted by this court. Neither Hilda Namona nor Margaret Naliki was called to give evidence, or other witness to affirm the giving.

58. Despite that Mr Bwekuli explained in court admitting giving those items but on request and denied talking about election to both women. As a Provincial Member he was obliged to give to the people in his ward. Request by electors from their Provincial representative is normal and not new, in particular items he did give. He gave the items in June 2005.

I find there is no evidence to prove both grounds, and I virtually accept Mr. Bwekuli’s explanation. Therefore these two grounds must fail.

Ground (e)

59. On this ground there was no evidence, even from John Knox that Bwekuli gave a small knife to Hilda Nawagadeli. There was also nothing in submissions from the Petitioner’s Counsel in regards to this ground.

60. The only evidence is from Mr. Bwekuli. He said Hilda Nawagadeli is the same as Hilda Namona, the same person. Since I have dealt with the case of Hilda Namona in ground (c) I must therefore abandoned this ground.

Ground (f) and (g)

61. The allegation in this two grounds is that on an unknown date in March 2006 at Nopali village, Reefs, John Mark Paleure being an agent and campaigner for First Respondent gave a block of tobacco to John Itoa and uttered words to induce Mr. Itoa to vote for the First Respondent and also promised J. Itoa that he would receive $200.00 if he voted for First Respondent, after election. The only evidence for the petitioner comes from John Itoa. He told the court that whilst himself and other men were in the custom house John Mark came. He said John Mark introduced the issue of election, and told them about the need to change current leadership and that they must vote for Magga.

62. At that meeting John Mark told John Itoa that he had a stick of tobacco for him in his house and that he will give it to him in the evening.

63. In the evening John Mark went to his house and gave him his stick of tobacco, and told him that the stick of tobacco came from Magga and told him to vote for Magga.

64. Mr. Itoa also stated that John Mark told him, if he voted for Magga he would receive $200.00 after the election.

65. John Mark was called as a witness for the Respondent. He said his son told him that his uncle John Itoa wanted tobacco. This was in the first week of January 2006. He denied giving a block of tobacco to John Itoa. He denied telling John Itoa to vote for anyone. He also denied promising $200.00 to John Itoa to induce him to vote for the First Respondent. He admitted he was a follower of First Respondent.

66. Upon this request he gave a stick of tobacco to John Itoa because he was related to his wife. He gave the stick of tobacco near a tank close to the boys’ house. He denied saying anything to him at that time.

67. He also said Mr. Itoa use to join them when they talk about election. At the last minute he switched to support the petitioner.

68. On ground (f) the allegation was the giving of a block of tobacco. There was no application to amend the words a "block of tobacco" and substituted it to the words" one stick tobacco".

69. In evidence Mr. Itoa was talking about one stick tobacco. And Mr. John Mark agreed that he gave one stick tobacco to John Itoa upon his request as a relative of his wife. It is a custom obligation and this was done in January 2006. And he denied inducing Mr. Itoa to vote for the First Respondent.

70. According to John Mark’s knowledge Mr. Itoa was a supporter of First Respondent and switched to support the Petitioner at the last minute.

71. In the villages people gather and talk about elections and they know which candidate they support. Two things may have been in John Mark s mind at the time he gave one stick tobacco. Firstly, that he knew Mr. Itoa was a supporter of First Respondent, he only switched to support the Petitioner at the last minute. If the gift was within supporters of one candidate how would it be termed as bribery, would inducement be possible, there is no logic in it. Secondly the gift in my view was a custom obligation. Mr. Itoa was related to John Marks wife, and upon request he gave the stick of tobacco. Giving under custom obligation is accepted, see Haomae v Bartlett[19].

72. One very significant matter in this ground is the allegation of giving of one block of tobacco. There was no amendment to that specific allegation. The petitioner is here to prove that one block of tobacco was actually given. Only in evidence that the issue of one stick tobacco was raised.

73. Changing in evidence from one block of tobacco to one stick tobacco, without any amendment, to the number, goes to show how credible and reliable a witness is.

74. The final amendment to the petition confirms one block of tobacco was given, and that stood as an allegation to prove in this court. That has never been proved. Goes to show that Mr. Itoa was not a credible and reliable witness. His evidence of receiving one stick of tobacco does not change what was alleged and pleaded in this ground. He is not a truthful witness at all. Even in relation to $200.00 alleged promised by John Mark. I could not accept Mr. Itoa’s version.

75. I must therefore accept John Marks version and I am satisfied on his evidence. These two grounds must therefore fail.

Ground (h)

76. This ground alleged that John Mark Palaure gave a block of tobacco to Thomas Tamou on a date in March 2006, at Napoli village, and uttered words to induce Thomas Tamou to vote for the First Respondent.

77. The Petitioner called Mr. Thomas Tamou who gave evidence that towards end of March 2006 John Mark gave him one stick tobacco at his house and told him that change is needed in the upcoming election and that they should vote for Magga.

78. Respondent call Mr. John Mark Paluere who denied giving one block of tobacco. He only gave one stick tobacco to Thomas Tamou when he was on his way to paddle out to Tuo. On passing Thomas Tamou and friends who were drinking Kaleve he gave him one stick tobacco. And that he gave the stick of tobacco in January 2006 and not in March 2006. He also said he used to give him before.

79. Again there was no application to amend giving of one block tobacco as alleged in this ground, to one stick tobacco. The Petitioner is obliged to prove giving of a block of tobacco as it stands.

80. As I have said in ground (f) that Mr. Tamou has deviated in evidence significantly. He only received one stick tobacco and not one block of tobacco as alleged in the amended petition. This deviation has affected his credibility and reliability. I must therefore accept John Mark’s version and not Thomas Tamou. Under this ground First Respondent denied giving tobacco to anyone to distribute. This ground has not been proved to my satisfaction therefore must fail.

Ground (i)

81. This ground alleges that Eric Peniopu and John Mark Palaure, sometimes in March 2006, at Napoli village holding themselves as agents and campaigners for the First Respondent promised to give Elizabeth Siopulo a kerosene lamp and $200.00 if she votes for First Respondent.

82. The Petitioner calls the only witness Mrs. Elizabeth Siopulo to prove this ground. She said that in March 2006 before the election Eric Peniopu and John Mark Paleuru came to her house to see her and husband, and had a meeting during the election period. Three men knew she was supporting the Petitioner.

83. At one of these meetings in her house in March, Eric Peniopu told her if she voted for Magga she would be given a kerosene lamp by Magga. Eric Penioupu also promised if Magga won she would receive $200.00.

84. After election she said she received a lamp, a bottle of kerosene and the sum of $200.00; the $200.00 was given to her by her husband.

85. About May 2006, after election she was responsible to distribute the lamps to persons who voted for Magga. She said she decided to vote for Magga in 2006 elections because she wanted a lamp and money.

86. She also said on the day prior to the distribution of lamps she went to Eric Penioupu’s house. Her husband was there. She saw Eric Peniopu, John Mark Palaure and her husband and in front of them were the lamps for distribution. It was in May when she went around distributing the lamps. Perhaps in May that she received her lamp and money too.

87. She also told the court that Magga never visited Nopali in June 2006 but lamps were distributed by her in May 2006, prior to Church festival in September 2006.

88. The Respondent called three witnesses to rebut this allegation. They are Eric Penioupu, John Mark Paluere and Daniel Sewia.

89. Eric Penioupu told the court denying promising any lamp and $200.00 to Elizabeth. He admitted he was one of the nominators of the First Respondent.

90. He said after election in June the First Respondent returned to the Reefs and called leaders to his village at Tuo. The First Respondent told them to give him their urgent needs. Eric Penioupu was also present.

91. On his return to his village at Nopali he told leaders what the First Respondent had told them.

92. He admitted giving a lamp to Elizabeth and some widow women and some old men in September 2006. He denied talking to Elizabeth about anything which he will provide or give her.

93. He said the lamps arrived in September on MV Chanella. No lamps arrived before that. As a supporter they often meet at John Mark’s house.

94. John Mark Paluere told the court denying promising Elizabeth a lamp and $200.00. He admitted going to Elizabeth’s house and sometimes talk about election, knowing that Elizabeth and husband were supporters of Magga.

95. Daniel Sewia is the third witness who gave evidence for the Respondent to rebut the allegation. He was the husband of Elizabeth. He admitted receiving the lamp from Eric Penioupu according to his request after the election. He received the lamp in September 2006. It was brought to his house. He denied anyone promised him money. He also said before election himself and wife Elizabeth supported the First Respondent.

96. Here I am confronted with a conflict of evidence between a husband and wife. However for one thing in certain, the lamp was received. The wife Elizabeth said she received the lamp in May, whilst the husband Mr. Sewia said he received the lamp in September upon request. There was no evidence that there were two lamps received by this family.

97. A similar evidence is noted in regards to $200.00. Elizabeth said she received $200.00 through her husband Mr. Sewia. Mr Sewia denied receiving any money and denied anyone promising him money.

98. The First Respondent in evidence said after meeting his people in the Reefs in June 2006, he returned to Honiara with their request. In July and August he prepared and purchased the goods needed. Towards end of August or first week of September the cargoes were transported to Reefs. He sent Michael Menubo and Frank Polau with the ship.

99. Mr. Frank Polau (RW3) told the court that two ships were sent, the MV Chanella and MV Tremax.

100. Upon cross examination by the Petitioner’s Solicitor and on passing, suggest that MV Tremax was sunk at Lata wharf in May, 2006. An implication that it would not be possible to travel to Lata in August or September. This suggestion was in line with John Knox’s affidavit para. 3 which suggested MV Trimax was sunk at Lata around May 2006. I have the privilege to check Marine Department. I was informed by Stephen Lulu who was in charge of Survey Section in the Marine Department and he confirmed the MV Tremax was sank at Lata wharf on 25th August 2006, perhaps that was her last trip to Temotu.

101. On balancing the scale it seem to tilt towards respondents witnesses. That the goods probably arrived in the Reefs at the end of August and distribution in September according to list of request. Clearly Mr Eric Penioupu must be telling the truth. That he gave the lamp to Elizabeth, some widow women, and old men in September 2006. No distribution of any items was done in May or earlier than September. I must accept his evidence on this point.

102. If Elizabeth cannot be truthful as to when she received the lamp she cannot be truthful too as to the alleged $200.00 she received. Her own husband Mr. Sewia (RW16) whom she claimed gave her $200.00 denied receiving any money from anyone and denied giving $200.00 to Elizabeth. Both Eric Peniopu and Frank Polau denied promising Elizabeth the sum of $200.00 and induced her to vote for the First Respondent. I must accept their versions. This ground has not been proved on the standard required and therefore must fail.

Ground (i)

103. There is no witness and evidence from the Petitioner to prove this ground. The only evidence available is from two Respondent’s witnesses, Mr. Frank Polau and Geoffrey Kobero. Therefore I must accept there evidence. The ground must fail.

Ground (k)

104. There is no witness and evidence from the Petitioner to prove this ground. The only evidence is from the Respondent through John Vane. I must accept his version. This ground must also fail.

Ground (l)

105. There is no evidence from the Petitioner to prove the allegation in this ground. Mr. Fox Tolei, the recipient of the bush knife as alleged was not called to give evidence. The only evidence available is from the Respondent through Johnson Tawopi. I therefore accept his version. This ground must fail too.

Ground (m)

106. This ground alleges that on a date in March 2006, at Otelo village, Reef Islands, Henry Vagi holding himself as agent and campaigner for the First Respondent gave a lamp to Mary Panave and uttered words to induce Mary Panave to vote for the First Respondent at the Election in April 5, 2006.

107. The Petitioner calls the only witness John Knox and gave evidence. He said he deposed an affidavit that he caught up with Mary Panave at Lata. This was in May 2006. Upon enquiries Mary admitted that Vagi was an agent and supporter of Magga and gave her a lamp in March 2006 during election campaign at Otelo village. He said Mary told him that knowing Mr. Vagi was acting for Magga, she felt guilty not to vote for Magga as she had already taken the lamp. Mr. Knox also stated that Mary told him that she was always a supporter of Mr. Maina because her husband was a relative of Maina. Mr. Knox deposed that Mary was a relative of Maina. Mr. Knox deposed that Mary was questioned by Police, later and tendered what appears to be a Police statement, exhibit 1.

108. To rebut that allegation Mary gave evidence for the Respondent admitting receiving a lamp from Vagi, in December 2005. Her reason was that Vagi was asked by her late husband before he died to look after her and children. Mary agreed being interviewed by Police but denied signing the statement.

109. Next Respondent witness was Henry Vagi also denied giving any lamp to Mary in March 2006 but he gave a lamp to her in December 2005 and denied the lamp given was for the purpose of the election, but an obligation vested on him by late husband of Mary to look after Mary and the children after he died.

110. Mr. Vagi also stated he came to Honiara and sold his pigs for $700.00 and work for Mr. Magga on Neptune Gale for one week. He was paid $450.00 for his work.

111. Firstly let me deal with the Affidavit deposed by Mr. Knox. I do not seem to see any significant importance on the affidavit. Mr. Knox was called and gave sworn evidence in court and then cross examined. All that he deposed in the affidavit is the same as his sworn evidence in court in regards to this point. What is the difference between the affidavit and sworn evidence in court. I think in fact when a witness is called and give sworn evidence in court, on the same facts, as deposed in the affidavit, there is no difference. The very important difference is that after sworn evidence the witness is cross examined. In such circumstances, and often, we forget about the affidavit as they contain the same facts. I think giving sworn evidence in court and thereafter cross examined takes precedent than deposed affidavits when they contain the same facts as in this case. I therefore rely on sworn evidence of Mr. Knox in court.

112. Secondly I must deal with the Police Statement tendered in court by Mr. Knox. Importantly, it is understood that Mr. Knox is not the maker of the statement or recording officer who recorded the statement. Only the maker of a statement and recording officer can tender such documentary evidence in court. The First Respondent’s Solicitor lodge no objection on the manner in which the statement was tendered. But this court must finally determine whether such tendering of such documentary evidence is within the bounds of law. I must say it is not.

113. I noted at paragraph 4 page one and continued next page, which the recording officer wrote Vagi went on to say to me that the lamp was given to him. (Vagi) by Mr. Martin Magga when he (Vagi) works for him.

114. Here the story started with Vagi. Then Mary told the story to Police Officer who recorded it. Then Knox tendered the statement recorded by Police Officer to Court and persuaded the court to belief it. The story has gone through three persons and the fourth is Knox. Is that not hearsay? It is absolutely hearsay as therefore inadmissible in court.

115. In assessing the evidence available in this ground, I had said much about Mr. Knox earlier. He is not a reliable and credible witness at all.

116. However, I accepted the respondent’s witnesses. Mr. Vagi admitted giving lamp to Mary in December 2005 under custom-obligation. This was confirmed by Mary herself. Custom gift and obligation under custom was discussed in Haomae v. Bartlett[20]. Mr Vagi according to his evidence had worked for Magga and was paid $450.00. He sold his pig and got $700.00. He worked hard to get the money. He came all the way from Temotu to Honiara to sell his pigs. After receiving money he fulfilled this custom obligation. No evidence that the lamp was a free handout from Mr. Magga.

117. The evidence is clear, the balance for sure tilt to the respondent. I am satisfied there is no evidence to support this ground, therefore must fail.

Ground (n)

118. This ground alleges that in March 2006, at Otelo village Henry Vagi holding himself as an agent and campaigner for the First Respondent gave a lamp to Rachel Onaki and uttered words to induce her to vote for the First Respondent at April 5, 2006 elections.

119. The petitioner offers no evidence to prove the allegation in this ground. The Respondent call two witnesses, Henry Vagi and Rachel Onaki, the alleged recipient of the lamp. Henry Vagi denied giving any lamp to Rachel Onaki and induced her to vote for Magga. And Rachel Onaki denied receiving any lamp from Mr. Vagi in March 2006. The lamp she got was bought by herself from a shop at Otelo village in December 2005.

120. The petitioner’s counsel seemed to rely on Mr. Knox’s evidence. However Mr. Knox stated in court that he questioned Rachel Onaki and that’s all, about what, the evidence does not reveal. Mr. Knox only stated he interrogated Onaki but on what topic no body knows.

121. Counsel for the petitioner pointed out some inconsistencies in Onaki’s evidence referring to not knowing the shop in her own village she bought the lamp from. He also refers to her demeanour, evasiveness .and credibility.

122. In some villages the shops have no named at all. One can mention the owner’s name but not the name of the shop. Court cannot be expected to accept no evidence to substantiate a point and reject the only evidence available. In this case Onaki may be swayed in evidence, but what evidence did the petitioner offer for consideration, nothing. The evidence of Mr. Vagi is unmoved.

123. Much has been said about Mr. Knox’s evidence. His evidence is wholly hearsay and cannot be accepted.

124. I must therefore accept the evidence of Mr. Vagi and Onaki as the only evidence available in regards to this ground. Again this ground must fail.

Ground (o)

125. There was no evidence led by the petitioner to substantiate this ground. The only evidence is from the First Respondent. He denied promised to give money to Lapoe, Issac, Doreen and Hilda Nuosilaki and uttered words to induce them to vote for him. None of those alleged recipients were called as witness. I must therefore accept the First Respondent’s evidence as the only evidence available. This ground must also fail.

126. It now seems apparent that all the allegations in all the grounds have not been proved on the standard required. Therefore those whom the grounds alleged to have involved including the First Respondent were not guilty of corrupt practices of procuring the commission of the offence of bribery and treating before and during the election contrary to sections 71, 72(1) and 73 and 66 of the Act. I accepted those persons named either supporter or agent of First Respondent but had done nothing of which the Act forbids, including the First Respondent.

127. I felt that I have dealt with each ground sufficiently, although the final submissions by the petitioner’s counsel only encompass incidents at Napoli village, Ngamubulon village and Otelo village. He left out any submissions in regards to incidences at Ngamunie village, New Place village, Tanga village, Laro village and Nibenga Nende village.

128 Having said that I am not satisfied on the standard of proof required that evidence in support of all the allegations in the petition are proved, and no one had committed corrupt or illegal practice. Having determined the first issue for determination I need not determine issues (b) – (d) as they merely based and founded on the finding in issue (a).

129 I therefore dismissed the petition with costs, and I shall certify to the Governor-General that Martin Magga was lawfully elected Member of Parliament for Temotu Pele Constituency.

THE COURT

^[1] National Parliament (Electoral Provisions) Act, Cap. 87.
^[2] National Parliament (Electoral Provisions) Act, Cap. 87.
^[3] National Parliament (Electoral Provisions) Act, Cap. 87.
^[4] National Parliament (Electoral Provisions) Act, Cap. 87.
^[5] National Parliament (Electoral Provisions) Act, Cap. 87.
^[6] National Parliament (Electoral Provisions) Act, Cap. 87.
^[7] National Parliament (Electoral Provisions) Act, Cap. 87.
^[8] . National Parliament (Electoral Provisions) Act, Cap. 87.
^[9] . National Parliament (Electoral Provisions) Act, Cap. 87.
^[10] . National Parliament (Electoral Provisions) Act, Cap. 87
^[11]. Halsbury’s Laws, Vol. 15, Page 419-see foot notes.
^[12]. [1985-1986] SILR 3, at Page 37.
^[13] [1993] SBHC 31; HC-CC 204 of 1993 (10 December 19930 Page 10 para 5
^[14] . National Parliament (Electoral Provisions) Act, Cap. 87.
^[15] . National Parliament (Electoral Provisions) Act, Cap. 87.
^[16] [1993] SBHC 29; HC-CC 266 of 1993 (23 November 2003) Page 4 paragraph3.
^[17] [2002] SBHC 36; HC-CC 9 of 2002 (6 June 2002)
^[18] [1985-1986] SILR 22, or Page 25, paragraph 4.
^[19] [1988-1989] SILR 35.
^[20]