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Auga v Folotalu [2011] SBHC 41; HCSI-CC 308 of 2010 (17 June 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)
Civil Claim No. 308 of 2010

BETWEEN

AUGUSTINE AUGA
Petitioner

And

WALTER FOLOTALU
First Respondent

And

ATTORNEY GENERAL
Second Respondent

Ms Tongarutu for the Petitioner
Mr Nori for the First Respondent
Ms Folaumoetui and Mr Kii for the Second Respondent

Date of Hearing: 7th June 2011
Date of Judgment: 17th June 2011

Decision on preliminary issue

1. A National Election was held in Solomon Islands in August 2010. The Petitioner was a candidate for the Lau/Baelelea Constituency. The First Respondent was elected as MP for the Constituency. The Petitioner polled the next largest number of votes and came second. An Election Petition was filed on 26th August 2010. It is not necessary, at this stage, to deal will all that is set out in the Petition. I am asked to consider a preliminary issue.

2. One of the grounds for setting aside the election result put forward by the Petitioner is the burning of a ballot box, ballot papers and associated documents. There is no dispute that it happened. The event was caught on camera by a television crew. The preliminary issue is whether the burning of the ballot papers should render the result of the election in the Lau/Baelelea void.

3. The details are set out in a sworn statement by Eric George filed on 6th June 2011. He describes how vote counting commenced on 5th August in the Malaita Provincial Government offices. On 6th August at about six in the evening rocks were thrown at the building. Mr George heard shouting. He and his colleagues were very worried about their safety and so they hid. The situation seemed to be deteriorating and Mr George spoke to Mr Kaua (Election Manager) and eventually by telephone to Mr Haununu the Chief Election Officer. As a result of the fears expressed by Mr George it was agreed that counting should be suspended. Mr George then went out to inform the crowd that counting was to be suspended. Just after this he learnt that a ballot box had been thrown to the crowd and the contents burnt. The ballot box and contents were from the Faufanea 1 polling station. The ballot box and contents were destroyed before the votes were counted.

4. Rather surprisingly, despite the incident being filmed and despite the number of witnesses around at the time, no one appears to have been interviewed, arrested, charged or otherwise prosecuted for the undoubted offence of burning the ballot papers. Section 68 of the National Parliament (Electoral Provisions) Act [Cap.87] ("the Act") clearly sets out the offence of destroying a ballot box or ballot papers. The perpetrators of the offence have not been identified. Why that is so is obviously a matter for the Police, but it is still rather disturbing.

5. There is absolutely no suggestion that the destruction of the ballot box and contents was carried out on the instructions or at the behest of the First Respondent or indeed, of any other candidate.

6. From records compiled by Mr George and other election officers for the whole of the Lau/Baelelea Constituency it is known that there were 634 registered voters who could have voted at the Faufanea 1 polling station. They would have come from the five villages of Sulufoloa (88 voters), Faufanea (268 voters), Bibisu (128 voters), Vilamaria (26 voters) and Eden (124 voters). That is the maximum number of votes that could have been cast and, logically, the total number of votes that could have been destroyed. There is a sworn statement from Mr Kirio who was the Presiding Officer at Faufanea 1 polling station. His recollection is that 507 votes were actually cast.

7. It is also known that of the 16,728 voters eligible to vote in the Lau/Baelelea Constituency a total of 9,164 cast their vote. There were 60 rejected ballot papers and so the total of counted votes was 9,135. Of those votes the First Respondent polled 2,370 and the Petitioner 1,482.There was a difference of 888 votes between them. Simple mathematics establishes that if every possible vote at Faufanea 1 had gone to the Petitioner he would still have been 254 votes short of the First Respondents total. (If Mr Kirio is correct in his recollection of the total votes cast the difference would have been more but it seems safer to rely on the total possible number of votes.)

8. There is no specific provision in the Act as to what should happen if a ballot box and its contents are lost or destroyed. This is not a case falling under section 66(1) of the Act. As stated earlier, there is absolutely no suggestion that any of the candidates were responsible for the burning of the ballot box. Sections 66(2) and 9 provide some guidance.

Section 66(2) reads:

Where on an election petition it is shown that corrupt or illegal practices or illegal payments, employments or hirings committed in reference to the election for the purpose of promoting or procuring the election of any person thereat have so extensively prevailed that they may be reasonably supposed to have affected the result, his election if he has been elected, shall be void and he shall be disqualified for election as a member of the National Parliament for a period commencing on the date of judgment by the Court to the date of dissolution of the National Parliament following that judgment.

Section 9 reads:

No election shall be invalid by reason of non-compliance with this Act if it appears that the election was conducted in accordance with the principles of this Act and that the non-compliance did not affect the result of the election.

9. In relation to section 66(2), an offence has been committed under section 68. There is evidence of an illegal practice. As we do not know who burnt the ballot box or the motives for doing so, there is no evidence to suggest the offence was committed for the purpose of promoting or procuring the election of any person. The better guidance is found in section 9. So far as that section is concerned, the Act has not been complied with because not all the votes cast at Faufanea 1 were counted. In fact none of the votes from that polling station were counted. Apart from that lacuna there is no suggestion the election was not conducted in accordance with the principles of the Act. In any event the question in both cases is whether the result of the election has been affected.

10. Section 55 of the Act states;

55.—(1) When the result of the election has been ascertained, the Returning Officer shall forthwith declare to be elected the candidate for whom the majority of votes has been cast, and such declaration shall be made in the following terms

"I hereby declare that is elected".

(2) The number of votes cast for each candidate shall not be finalised by the Returning Officer when he makes the declaration referred to in subsection (1).

The result is the determination of the candidate with the majority of votes. It has long been held in a number of English cases that result means the success of one candidate over another, not the particular number of votes for a candidate. That is clear from the reasoning in the more recent case of Gough v. London Sunday Newspapers (North) Ltd and Another [1] . That was an appeal in a libel matter but was concerned in the main with the effect of election law.

11. There do not seem to be any previous cases decided in this jurisdiction where similar circumstances prevail. There do not seem to be any cases where ballot boxes or ballot papers have been lost or destroyed through accident or inadvertence. There are English cases on the point. The most recent is Fitch v. Stephenson and Others [2]. In that case, which dealt with similar provisions in the Representation of The People Act it was said,

"It is submitted that the purpose of s.48 is to preserve an election, notwithstanding acts or omissions by the Returning Officer or other persons in breach of their official duties or in breach of election rules, providing that, when looking at the conduct of the process as a whole, the election was substantially in accordance with the law as to elections (s.48(1)(a)) and the act or omission did not affect its result (s.48(1)(b)).

The decided cases, including those which Lord Denning considered in Morgan v Simpson, establish that the Courts will strive to preserve an election as being in accordance with the law, even where there have been significant breaches of official duties and election rules, providing the result of the election was unaffected by those breaches: see Woodward v Sarsons (1875) [1875] UKLawRpCP 68; LR 10 CP 733; Islington 5 O'M & H 120; Marshall v Gibson, Divisional Court, Judgment of 14th December 1995; Harris v Gilmour, Divisional Court, Judgment of 11th December 2000. This is because, wherever possible, the Courts seek to give effect to the will of the electorate." The court went on to say, "...the first and foremost duty of the Court in election cases is to give effect, wherever possible, to the will of the electorate. That principle would be undermined if inadvertent breaches of the election rules could invalidate a whole election even where the result had not been affected. This election represented the will of the electorate of Abbey Ward. It was substantially in accordance with the law as to elections under s.48(1)(a) RPA; and section 46 of the 2006 Act does not affect the clear statutory provisions of section 48 and the decided cases."

12. Whilst the disenfranchisement of possibly 634 voters by the acts of a few hooligans is not to be treated lightly it is a plain fact that if all the possible votes that could have been cast at Faufanea 1 had been counted they would not have affected the result of the election. On the preliminary issue I find that the burning of the ballot box and its contents did not invalidate the election.

13. The proper order for costs in this application is for costs to be in the cause.

14. Counsel all agreed that this ruling could be delivered by "post". Because the court diary is rapidly filling I suggested to Counsel that a date for trial be pencilled in. I suggested the two weeks beginning 26th September 2011. This was on the basis that if the preliminary issue had disposed of the whole petition then those dates could be vacated. As the balance of the Petition needs to be dealt with the trial date is now fixed. I will also sit on Friday 2nd September at 13:30 in the afternoon to deal with any further directions to enable the petition to be heard. I will also say that there the parties have liberty to apply on 3 days notice to cover any other eventuality.

Chetwynd J

^[1] Michael Gough v. London Sunday Newspapers (North) Ltd and Another [2003] EWCA Civ 297
^[2] Fitch v. Stephenson and Others [2008] EWHC 501 (QB)