HIGH COURT OF SOLOMON ISLANDS

Case name: 	Garu v Veke	
		
Citation:		
		
Date of decision: 	20 May 2020	
		
Parties: 	Moses Garu v Anthony Veke	
		
Date of hearing: 	10, 11, 12, 14, 18 February 2020	
		
Court file number(s): 	274 of 2019	
		
Jurisdiction: 	Civil	
		
Place of delivery: 		
		
Judge(s): 	Mwanesalua; DCJ	
		
On appeal from:		
		
Order:	1 Dismiss the Election Petition filed on the 16th of May, 2019.
2 The First Respondent is to have his costs, to be taxed if not agreed.
3 Direct that a certificate be issued to the Governor-General, Speaker of the National Parliament and the Electoral Commission, confirming the validity of the election of the Hon. Mr. Anthony Veke as the duly elected candidate for the West Guadalcanal Constituency.	
		
Representation: 	Mr. J. To’ofilu for the Petitioner
Mr. L. Kwaiga for the Respondent 

Catchwords: 		
		
Words and phrases:		
		
Legislation cited:	Electoral Act 2018, S.126	
		
Cases cited:	Maetia v Dausabea[1993] SBHC 29, Sasako v Sofu 	

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 274 of 2019

BETWEEN

MOSES GARU 
Petitioner

AND:

ANTHONY VEKE
First Respondent 

Hearing: 10, 11, 12, 14, 18 February 2020
Judgment: 20 May 2020

Mr. J. To’ofilu for the Petitioner
Mr. L. Kwaiga for the Respondent 
JUDGMENT
The Petitioner in this case is Moses Garu and the Respondent is Anthony Veke. They were candidates standing for National Election in 2019 for the West Guadalcanal Constituency Seat in the National Parliament.
The General Elections were held on 3rd of April 2019. After the voting was completed, the ballot paper boxes counted and Anthony K Veke received 4,407 votes and Moses Garu received 2,564 votes.
On the 16th of May 2019, Moses Garu lodged his election petition in the High Court of Solomon Islands.
The Petitioner proceed with nine grounds. Four grounds of Election Bribery and Five grounds of Campaigning outside Campaign Period.
During the trial, the Petitioner called seventeen witnesses and the Respondent called Thirty fives witnesses.
The Particulars of the offences are as follows:
Particulars of the alleged offences
Count 4.1. Bribery
Sometime in November 2018, at Sumate Village, West Guadalcanal Constituency, Guadalcanal Province. The Respondent by his agent, Mrs Matea showed a form that recorded 10 names of every vote in their family, and ask Maria Matea and her husband Mr. Nicholas Chavusara to vote for the Respondent. Mrs Amelea Matea promised that the Respondent will give $10,000.00 to ten people after the Election Day he wins the election.
Count 4.7. Election Bribery
It was alleged that sometime in November 2018, at the Fairway Car Park in Honiara, the Respondent paid the sum of $700.00 to Mrs. Honex Tavake of Sumate village, West Guadalcanal Constituency Guadalcanal Province. This sum of money was paid to Mrs. Honex Taveke so that she would vote for the Respondent.
Count 4.9. Election Bribery
It was alleged that on unknown date in December 2018 at Naro Village, West Guadalcanal Constituency, Guadalcanal Province at Peter Vende’s residence, the Respondent by Agent, Mr Peter Vende of Naro village paid the sum $500 to Fred Vende so that he votes for the Respondent.
Count 4.10. Campaign outside campaign Period at Honiara Hotel
On an unknown date in November 2018, at the Honiara Hotel, the Respondent paid $10,000 to Eliseo Bechana of Manganakao Village, West Guadalcanal Constituency, Guadalcanal Province. This sum of money was paid to Eliseo Bechana so that he voted the Respondent. There is no evidence before this court he voted the Respondent.
Count 5.2. Campaign out of campaign period at Qoiqio Village
On April 2nd 2019, at about 9.00am, at Qoiqio village, West Guadalcanal Constituency, Guadalcanal Province, the Respondent rallied his agents and supporters and the whole of Qoiqio village, a closing campaign Mass Prayer was done within the 24 hours which is not allowed for any campaign activity.
On 2nd of April 2019, at about 11.00am, at Qoiqio Village, West Guadalcanal Constituency, Guadalcanal Province, the Respondent hosted a feast for his agents, Supporters and the whole of Qoiqio village who were attending the campaign. These may have influenced the voters to vote for the Respondent.
Count 5.3 Campaign out of campaign period at Qoiqio Village.
On December 2nd December 2018, at about 10.30am, at Qoiqio village, West Guadalcanal Constituency, Guadalcanal Province, the Respondent rallied on his agents and supporters and campaigned outside of the campaign period. This is to influence registered voters who were present during that time to vote for the Respondent.
Count 5.5. Campaign outside the Campaign Period at Kobuale
On November 24th 2018, at about 9.30am, at Kobuale, West Guadalcanal Constituency, Guadalcanal Province, the Respondent rallied his agents and supporters and campaign outside of the campaign period. This is to influence registered voters who were present during that time to vote for the Respondent.
Count 5.6 Campaign of campaign period at Kobuale at Tulagi Tasi.
On December 1st 2018. About 9.30am, at Tulagi Tasi, West Guadalcanal Constituency, Guadalcanal Province, the Respondent rallied his agents and supporters and campaigned outside of the Campaign period. This is to influence registered voters who were present during that time to vote for the Respondent. 
5.8 Campaign outside the Campaign Period at Tiaro Village.
It was alleged that on November 10, 2018 at about 9:30am at Tiaro West Guadalcanal, the Respondent rallied his agents and supporters and campaign outside of the campaign period. This is to influence registered voters who present during that time to vote for the Respondent.
Analysis of Bribery Grounds 4.1, 4.4, 4.7 and 4.10
I will now discuss the grounds in relations to the evidence provided to the court. Before considering the evidence I will firstly looked at what bribery is according to the Electoral Act (2018).
The offence of bribery is set out in section 126 of the Electoral Act as follows:
•	“(1) A person commits an offence if:
•	(a) the person directly or indirectly promises, offers or gives a benefit to another person; and
•	(b) the person does so with the intention of influencing the other person to:
•	(i) vote or refrain from voting at an election; or
•	(ii) vote in a particular way at an election; or
•	(iii) Influence a third person to vote, refrain from voting or vote in a particular way at an election.”
The Court reminds itself that the burden of proof lies with the Petitioner. The standard of proof in petition cases was discussed in a number of cases by this court, see Maetia v Dausabea. In analysing the evidence before this court for the Bribery allegation, In his Judgment of CC 277 of 2019 Election Petition - Sasako vs Sofu, the Learned Chief Justice said that “there are ……mandatory elements for proof in the allegation of bribery. Not only is it necessary to prove the existence of a promise, offer or gift, but also to establish that the money was given with the intention to influence that other person, in this case, to vote for the Respondent”.
This court is mindful that the Petitioner must to the evidence that will prove Bribery under Section 126 of the Electoral Act 2018.
Ground 4.1 – Election Bribery
I will now deal with grounds 4.1 – Election Bribery. There are two witnesses to give evidence on this charge, Mrs Maria Matea (PW1) and Nicholas Chavursaru (PW2). 
In examination in Chief Mrs Matea confirm to the court when Counsel for the Petitioner asked her. Alright, Time showem you form yah, you holem form yah too? You Holem then u look inside? You Touchim form yah too? You holem?
She answers and said, “Me no holem. Me leavim. Hem Putim osem nomoa then me stay lo side then me lukluk go lo hem nomoa”
The Counsel continue to ask her another question. Time hem showem u form yah what na hem talem lo you?
She answered by saying “O mitufala bae no vote together yah. Bae mitufala vote separately. Bae wife blo me hem votim Garu, then bae me votim Veke. Osem nao plan blong mitufala”.
However, Mr Nicholas Chavursaru (PW2) confirmed that he sighted a white piece of paper presented by Ms Amelia. It is noted by the Court that the evidence Mr Chavursaru given is not convincing to the Court wholly. The court take into account the submissions from the Respondent’s Counsel that there was no plan between him and his wife to vote for specific persons. He did not produce the forms which the Petitioner is referring to. In his evidence he did not say he voted for the Respondent and did not confirm in court that he received any money that was promised by Mrs Amelia Matea. There is no evidence to this ground and accordingly dismissed.
Ground 4.7 – Election Bribery
I am now deal with grounds 4.7 – Election Bribery. For this ground, the Petitioner called one witness, Mr Onex Tavake. The Court agrees with Respondent’s Submissions that there was no National General Election (NGE) in November in 2018. In his Submissions, Counsel for the Respondent confirmed that Ms Onex Tavake (PW3) confirm to the court that the Respondent never knew any arrangements with meeting Mrs Tavake on that alleged time in November. The evidence by Mrs Tavake does not corroborate Mrs Abelyn Mary (PW3 and Unice Evaster (PW4) ‘s evidence. The Courts therefore dismiss this ground.
Grounds 4.9 – Election Bribery
Ground 4.9 Election Bribery. The Petitioner called two Witnesses Mr Fred Vende (PW4) and Mary Obeline Vina (PW5) to give evidence on this ground. The allegation was alleged that Mr Peter Vende was the Agent for the Respondent. He gave him $500.00 to vote for the Respondent. This is was confirmed during the re-examination when Mr Vende confirm when counsel for the Respondent asked Mr Vende “So bae you agree wetem me that if no any Election lo December, 2018, no any one vote too that time. Hem Stret? Mr Vende answered, “Yes”. The Court agree with the Respondents Counsel’s submissions that if there were no Election at that time, there would have been any agent there and was no candidates nominated to contest an election. Therefore Mr Vendes evidence is not truthful. The Court therefore dismiss this ground.
Ground 4.10 – Election Bribery
The Petitioner called three witnesses, Eliseo Bechana (PW 8), Peter Maria Saheli (PW9) and Philip Labikode (PW 10). For the Respondent’ case. Counsel for the Respondent called four witnesses. After considering evidence in court. The Courts finds that the evidence present in court does not corroborate the evidence provided in sworn statement of Eliseo Bechana. Therefor this ground should be dismissed.
There is no evidence to prove that the respondent influenced the voters to vote for the Respondent.
In considering the submissions made by Counsel for the Petitioner and for the Respondent. The Petitioner’s Counsel did not established any evidence that can wholly produce any element of influence that resulting in affecting the outcome of the Election result. Counsel for the Petitioner in arguing his case he has failed to establish any evidence from the witnesses that can satisfy the court that they have voted for the Respondent. This creates doubt in court’s mind. Therefore, the court have concluded that there is no evidence to prove the Respondent had Influence a person to vote or vote in a particular way at the election. Having consider all the evidence and Counsel’s submissions. I am satisfied that the four grounds of Election Bribery should be dismissed. The alleged four grounds of Election Bribery against the Respondent are therefore dismissed. Order accordingly.
Analysis of Campaign outside Campaign Period for Grounds 5.2, 5.3, 5.5, 5.6 and 5.8
Grounds 5.2 – Campaign outside Campaign Period
The court will deal with Grounds 5.2. First the allegation is that the Respondent rallied his agents and supporters and the whole of Qoiqio village using mass prayer. The Electoral Act 2018 states that “The campaign period for an election begins on the date of publication of the election date and ends 24 hours before the election date”
One witness was called by Petitioner for ground 5.2. He is Mr Peter Dei. The evidence brought before this court that is there are two activities that occurred on the 2nd of April, 2019 that Petitioner is complaining of a Mass Prayer and a Feast thereafter.
Before looking into Mr Peter Dei’s Evidence, the court needs to define “Campaign Activity”, Campaign activity is any activity that is intended, calculated or likely to; affect the result of an election; or influence an elector in relation to the casting of his or her vote at an election.
The Petitioner’s witness is Mr Peter Dei who provided evidence in Court confirming that the Village in which the Mass prayer occurred is the Respondent’s Village. There is no evidence before the court to establish that the Respondent is conducting a Campaign. There is no evidence provided to the court to prove that this Mass prayer influenced voters to vote for the Respondent or to refrain from voting. Therefore the Court will accordingly dismiss this ground.
Grounds 5.3 – Campaign outside Campaign Period
Ground 5.3, the Petitioner alleges that on December, 2018 the Respondent rallied his agents and supporters and campaigned outside of the campaign period.
There were two witnesses called by the Petitioner. Mr Peter Dei (PW6) and Mr David Tafea (PW7). The Respondent called 5 witnesses. Darold Gua (RW 9), Chrisma Laubua (RW 10), Lonsdale Tohothengna (RW11), Jack Tangi (RW 12) and Desmond Valena (RW16).
The court into consideration the inconsistences of the programmes exhibited in Sworn statement of Mr Peter Dei and Respondent’s witness Mr Chrisma Labua’s Sworn statement. Mr Laubua the Author of the Pamphlets confirm to the court when giving evidence that the right program that was used during that time was the one annexed to his statement. This leaves court to wonder whether the program the Petitioner’s witness used was credible. Therefore, the court will rely on Mr Laubua’a evidence and will dismissed this ground.
Grounds 5.5 – Campaign outside Campaign Period
The Petitioner’s case is that on 24th November, 2018 the Respondent rallied his agents and supporters and campaigned outside the Campaign Period.
The Petitioner called two witnesses for this ground, Mr Dominic Mauli (PW12) and Mr Paul Magu (PW13). The Respondent for their case called 5 witnesses and consented Mr Patrick Finau’s statement.
I will not dwell much on this ground, the evidence before the court is that there is inconsistency of the evidence by the two Petitioner’s witnesses. The inconsistency of the evidence clearly showed the court that these two witnesses never attended such meeting if there is any. The Court therefore finds these two witnesses not credible. I will dismiss this ground accordingly.
Grounds 5.6 – Campaign outside Campaign Period
The Petitioner’s case is that on 1st December, 2018 the Respondent conducted campaign activities at Tulagi Tasi.
The Petitioner called 3 witnesses in support of their case and the Respondent called 5 witnesses.
The evidence before the court is that there is no election Period during this time. At that time the Respondent was the Provincial Member for the Tangarare Ward of which Tulagi Tasi is part and also he is the Premier of the Guadalcanal Province. This was confirm by all the witnesses that came before this court and gave evidence.
The evidence regarding the programs exhibited to the witness’s Sworn Statements. The Court finds that there is inconsistency. The court is mindful of those inconsistences and therefore dismissed this ground accordingly.
Grounds 5.8 – Campaign outside Campaign Period
The Petitioner’s case is that on 10th November, 2018 the Respondent conducted campaign activities at Tiaro.
The Petitioner called 3 witnesses John Ligo (PW14), Primo Longastikai (PW15) and Josephine Longastikai (PW19). The Respondent in support of his case called 6 witnesses, Chrisma Labua (RW 10), Lonsdale Tohothenhna (RW 11), Jack Tangi (RW12), Patrick Wale (RW14) and Emmanuel Silvario (RW 17).
Both Counsel did not dispute the fact that the Respondent was at that time the ward member of the Tangarare Ward which Tiaro is part. This also confirm through witnesses in court that the Respondent was then the member and the Premier of the Guadalcanal Province.
The main issues in contention are;
i.	The Respondent declared his intention to contest the 2019 National General Election;
ii.	The Respondent promised that he would do a proper housing scheme if he was elected;
iii.	The Respondent will give out boats plus engines and freezes if he was elected;
iv.	The Respondent distributed campaign pamphlet.
The Petitioner failed to established and convince the court through the evidences presented in court that this have happened and will therefore leads to or amounts to the Respondents winning the National General Election 2019. There is no evidence before this court to proof that.
The Court take into take into account the Respondent’s witness Mr Chrisma Labua (RW 10) to be credible for this ground. He clarified what the program is about, who were the people that attended and invited.
The inconsistence of the exhibits from the Petitioner also gave court doubt whether the exhibits provided by the Petitioner are credible enough for the court to use in this case.
The Court find that the Petitioner has failed to prove all allegations against the Respondent to the required standard of proof therefor the court will dismissed the Election Petition filed by the Petitioner on the 16th of May, 2019.
ORDERS OF THE COURT:
1 	Dismiss the Election Petition filed on the 16th of May, 2019.
2 	The First Respondent is to have his costs, to be taxed if not agreed.
3 	Direct that a certificate be issued to the Governor-General, Speaker of the National Parliament and the Electoral Commission, confirming the validity of the election of the Hon. Mr. Anthony Veke as the duly elected candidate for the West Guadalcanal Constituency.
THE COURT
Hon. Justice Francis Mwanesalua
Deputy Chief Justice
High Court of Solomon Islands