Supreme Court of Vanuatu

(a) it is satisfied that the election was conducted in accordance with tith the principles laid down in this Act;

and

(b) such failure did not affect the result of the election,

the election of the successful candidate is not to be declared void."

14. Section 61A of the Act (as amended) provides as follows:-

"Cut-off date for using representation allowance, any money or donations in

(1)i>(1) A candidate for election must not spend, allocate or otherwise disburse to the constituency in which he or she is a candidate, any money, whether in the form of:

(a) His or her representation allowance – if the candidate is a member of Parliament; or

(b) Any money obtained from any other sources of funding whether in the form of:

• (i) Cash donations; or
  
• (ii) Donations in kind,
  

from the period commencing at the end of the life of Parliament or at the date of the dissolution of Parliament under sub-article 28(2) or (3) of the Constitution, to and including, the polling day.

(2) For the purposes of this section:

Donation in kind includes, but is not limited to, for or food products, transport, transport fares, machinery, cooking utensils, building materials and furniture."

15. Section 61B of the Act provides for Exceptions on polling day as follows:-

"Despite section 61A and subject to paragraphs 46(a) and (b), a candidate may, without the intention of corruptly influencing any person, provide food, drink, transport and accommodation to any person on the polling day."

16. Section 61C of the Act provides for Exception during the election period as follows:

"(1) Despite section 61A and subject to paragraphs 46(a) and (b), a candidate may during the campaign period;

(a) Present a gift of a custom mat or an amount not exceeding VT1,000 or both, to a chief or any person of similar authority or in an area or village for the purposes of holding a campaign in that chiefs or persons village or area; or

(b) Provide food, during, entertainment, transport or accommodation only to his or her agents; or

(c) Provide entertainment to the public for the purposes of entertaining the public during his or her campaign rally.

(2) For the purposes of this section, an agent of a candidate is a person approved by a candidate as a member of that candidate's campaign team.

(3) To avoid doubt, this section applies only during the campaign period declared by the Electoral Commission for purposes of this Act."

Discussion on Evidence

17. In order to prove his case, the Petitioner called several witnesses to testify. In particular, Michel Bule and Ephraim Veremal's evidence was against the First Respondent with regard to the cooking that was alleged to have been done.

18. In answer to questions put to them under cross examination, both witnesses maintained that baskets of food were cooked and distributed to the polling officers as well as the people who had come to cast their votes. Michel Bule testified that he voted at Ubiku polling station in Central Pentecost and that he had seen Augustine Tabi carrying food wrapped in laplap and that Augustine Tabi had told him that he would get some food if he voted for the First Respondent.

19. The evidence adduced clearly shows that food was cooked and distributed at all the polling stations in the First Respondent's area. Furthermore, according to the evidence of the First Respondent's witnesses, the planning for the preparation and distribution of food was carried out by RMC's Committee in or around June/July 2012. The First Respondent called six witnesses who testified that the cooking was done for the campaign team, the observers and the committee members and that it was not a public feast and it was made in accordance with the provisions of the Act as amended.

20. Section 61B of the Act clearly provides that a candidate may, without the intention of corruptly influencing any person, provide food, drink, transport and accommodation to any person on the polling day. The operative words are without the intention of corruptly influencing any person ( emphasis mine).

21. The crucial question for the Court's determination is whether or not the First Respondent had "corrupt intention" of influencing any person. The word corruptly is not defined in the Act. However, some guidance is to be found in Halsbury 's Laws of England, Fourth Edition at paragraph 768. It reads:

"corruptly" imports intention: it does not mean wickedly, immorally or dishonestly 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. See Salemalo v Tari [1998] VUSC 46.

22. The Petitioner contends that the careful planning of the distribution of food and meat to be consumed by the public shows that the First Respondent and his Agents had corrupt intention to influence voters to cast their votes in favour of the First Respondent.

23. In his submissions, the Petitioner's counsel, Mr. Leo, argued that the food (rice and meat) was intended to be consumed by the general public so as to induce them to vote for the First Respondent. That the food was cooked in 4 - 6 large pots called "macocot" and that, given the large quantity in the supply of food in every polling station in which the First Respondent had control over, it was manifestly evident that the First Respondent had corrupt intention to gain support for his RMC party which was a new political party in his locality and in Vanuatu.

24. It is trite that he who asserts must prove. The burden of proving the allegations remains on the Petitioner and it is on a higher standard of proof on the balance of probabilities. The Petitioner has the burden of proof necessary to establish whether the First Respondent had corrupt intention to influence voters to cast their votes in his favour. As I mentioned earlier, it is in evidence that food was cooked and distributed. I accept that piece of evidence. However, the question is as to the extent of the cooking and the distribution. The Petitioner has referred to the size of the pots as large and to the quantity as around 4 - 6 pots called "macocot."

25. Be that as it may, however, this Court has not been afforded the opportunity to verify the size of the pots so as to assess the quantity of the food that was cooked. Regrettably, such evidence has not been placed before me and it is not my duty to speculate about the sizes and appearance of "macocot" pots. The witnesses did not produce the cooking pots for the Court to see the sizes to support the allegation that the cooking was done on a very large scale with corrupt intention to influence the voters. At the very least, the Petitioner could have tendered photographs of the pots to bolster the evidence adduced by his witnesses. There is also no proof as to the number of peoplewho partook of the food. On the balance of probabilities, I find that it could well have been the First Respondent's campaign team, the party's observers and committee members, who partook of the food. The Petitioner's evidence was grossly insufficient in this regard.

26. I find that the two witnesses called by the Petitioner have failed to show that the First Respondent had evinced corrupt intention to influence voters. Ephraim Veremal testified that he was among the first ten people to vote in the morning. He also confirmed under cross examination that by then the food had not been cooked. He said that he later partook of the food. I find it difficult to reconcile this piece of evidence with the fact that Ephraim had testified that Augustine Tabi had told him that he would get some food if he voted for the First Respondent. It is clear to me that he had already voted before he held the alleged discussion with Augustine Tabi. Moreover, he had already voted before he ate so it is difficult to phantom how his voting was dependent on the food he was offered. Obviously, he must have exercised his right to vote for the candidate of his choice when he got to the polling station. I do not believe his testimony and he did not come across as a reliable witness. I also find no proof of the Petitioner's allegation that the Agents of Mr. Chariot Salwai had announced verbally that "Yufala igo vote from Charlot from kakai blong yufala istap long nakamal."

27. On the balance of probabilities, the Court rejects the version of facts given by the Petitioner's witnesses regarding the allegations against the First Respondent.

28. In respect of the allegations in the Petition against the Second Respondent, I find that the Petitioner has not produced any evidence to confirm the allegation that the Second Respondent and his agents had offered rice and tin fish to the general public after every campaign meetings.

29. The Petitioner had also alleged that on polling day the agents of the Second Respondent, David Tosul, had distributed his ID cards to the general public at the polling station. The Petitioner relied on the evidence of Donald Webak who was not called to be cross-examined. In any event, his sworn statement is mainly hearsay and therefore treated as unreliable and inadmissible evidence.

30. The issues arising from the allegations levied against the Fourth Respondent are:

Whether there was lack of compliance by the Fourth Respondent or its agent in the conduct of Elections in so far as it relates to the registration of electoral lists and the proper compilation of the electoral rolls and the issuance of electoral cards in Pentecost Constituency?

31. The Petitioner filed 16 witness statements of which around 9 sworn statements were made against the Fourth Respondent. All of the 9 statements were either hearsay or false statements or based on opinion evidence.

32. Didier Tabisalsal's statement contained no evidence at all as it was all hearsay. He stated he was a VP supporter and residing in Port Vila. All he said was what he heard from his VP counterpart in Pentecost. Accordingly his statement was disregarded on that basis.

33. Arthur Toa's statement contained largely hearsay and assumptions. He stated that a number of voters' names, including himself, were not on the roll. however during cross examination he admitted casting his vote. In his statement he stated that about 146 people could not vote because their names were not in the roll. However, during cross examination when asked who they are he said he did not know. When asked whether he knew whether or not the alleged number of voters inspected the electoral roll during the inspection period he said "no". He admitted that the problems for the names not being on the roll was due to the voters own fault for not inspecting the roll during the inspection period to ensure their names were included on the roll. He admitted not knowing the alleged 146 voters. When it was put to him that he had made that statement up he agreed.

34. In respect to his evidence about the under aged voters the witness stated he did not know how old they were but that they were under aged as one of them was his niece. When asked if he had attached their birth certificates to confirm their ages he said he do not know and did not attach same. During cross examination he was shown the electoral roll for Nazereth polling station and he was asked to show the Court the names of the under aged voters. Arthur Toa confirmed he did not find their names. When it was put to him that he had made up the story about the under aged voters he replied in the affirmative.

35. Accordingly this witness cannot be believed or relied on as not only did his statement contain hearsay evidence, it was also based on assumptions and false information.

36. Basil Tabi made two statements, one filed on 14 May 2012 and another on 21 November 2012. The one filed on 14 May 2012 was objected to on the basis of hearsay and the Court so ruled in respect of paragraph 3 thereof. The balance of the statement is only his opinion. It proves nothing and it goes to no issue.

37. In the statement filed on 21 November 2012, the witness stated that he took a list of names to the Electoral Office to register but then he was told to see Thomas Doro. Thomas Doro did not register the names on the list. Under cross examination when it was put to him that "Thomas Doro cannot register the names based on a list?" He said "yes."

Evidence of the Fourth Respondent

38. Martin Tete, Acting Principal Electoral Officer filed two statements in support of the Fourth Respondent's Defence. The first statement was filed on 4 June 2013 while the second was filed on 10 June 2013. The statements enclose the electoral roll of Nazareth polling station, marked as annexure "MT1" to the statement filed on 4 June 2012, the polling station which was specifically referred to by Arthur Toa who stated that some under aged persons had voted.

39. The Electoral Roll shows that the names stated by Arthur Toa, namely, Tania Bulu, Grensley Bolenga and Annee Liliu, alleged as under aged who had cast their votes were not on the roll for Nazareth polling station. The statement further explained the roll and the responsibilities and obligations of a registration officer. and an assistant registration officer and how one becomes a registration officers and the updating of the electoral roll and inspection of the roll.

40. The further statement of Mr. Tete filed on 10 June 2013, was made in response to the sworn statement of Basil Tabi and Winston Bule. Paragraph 3 stated that Basil Tabi attended the office of the electoral officer with a list of names to be registered. Mr Tete told him that registration does not happen that way but for him to see Thomas Doro to verify the names and to ensure the persons reside on the location they alleged so they can then be registered. He further stated that problems would arise if registration was done based on a list, and that there would be double registration, uncertainty of named persons and where they reside which would lead to mistakes on the roll.

41. In light of the analysis of the evidence relied on by the Fourth Respondent, it is clear that there was insufficient evidence to prove, on the balance of probabilities, that there was lack of compliance by the Fourth Respondent or its Agents in the conduct of Elections in so far as it relates to the registration of electoral lists and the proper compilation of the electoral rolls and the issuance of electoral cards in Pentecost Constituency.

42. Judging from the results before the Court, it is clear that the Petitioner must obtain another 113 votes in order to secure the fourth seat and 405 votes in order to secure the second seat in the Pentecost Constituency.

43. Furthermore, the Petitioner has not in any way established that the non-compliance with the Act, the cooking and provision of food or such like, have had an effect on the outcome of the election.

44. On the whole, I find that the Petitioner has failed to prove any of the breaches alleged in his Petition against all the Respondents.

45. For these reasons, the petition is hereby dismissed.

46. The Respondents are entitled to costs on a standard basis to be agreed or taxed.

DATED at Port Vila, this 16th day of August, 2013.

BY THE COURT

M.M.SEY
Judge