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Pukakoqoro v Kuma [2024] SBHC 138; HCSI-CC 194 of 2024 (16 October 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 194 o 2024

BETWEEN

ALICK FLEMMING PUKAKOQORO

Petitioner

AND:

HON. HARRY KUMA

First Respondent

AND:

IULAH PITAMAMA
Second Respondent

(As Returning Officer Northwest Choiseul Constituency)

AND:

BLAISE NOQEKESA

Third Respondent

(As a Counting Official for Northwest Choiseul Constituency)

AND:

ATTORNEY GENERAL

Fourth Respondent

(Representing the rest of the Counting Officials for Northwest Choiseul Constituency)

Date of Hearing: 20 September 2024
Date of Ruling: 16 October 2024

Ms L Ramo for the Petitioner
Mr W Rotumana and Ms S Kilua for the First Respondent
Mr H Lapo for the Second and Third and Fourth Respondent

RULING ON APPLICATION TO DISMISS ELECTION PETITION

1. On 17 April 2024 there was a general election. The First Respondent was the successful candidate for the Northwest Choiseul Constituency. The Petitioner was also a candidate for that constituency receiving 553 fewer votes than the First Respondent. The Petitioner has filed a petition seeking a declaration that the election of the First Respondent is null and void.
2. The First Respondent has filed an application to dismiss the election petition. The petition at paragraph 13 contained 8 grounds challenging the validity of the election. The Petitioner after reviewing the material before the Court has elected to pursue only those grounds set out in paragraphs 13(2), 13(5), 13(7) and 13(8). The grounds set out at paragraph 13(8) contain subparagraphs 13(8) (a), 13(8) (b) and 13(8) (c) against the Second, Third and Fourth Respondents respectively.

Ground 13 (2)

3. The petition contains the following at ground 13(2);
   • “(2) That on 9 March 2024, during the election campaign period, the Respondent through his Campaign Manager, one, Ishmael Wore of Malaita Province; at the Barabarakakasa Community Kaikai House, in NWCC, during the Respondent’s election awareness program which election awareness program coincided with a school bazaar for Porana Primary School, did commit the offence of Election Bribery, contrary to section 126(1)(a) and (b)(iii) EA, the particulars of which offence are as follows –
   • (a) by giving a $100 bill to one, Elizabeth Makorore;
   • (b) the said Elizabeth Makorore being a registered voter and resident of Barabarakakasa Community of Taba Ward in NWCC;
   • (c) that at that time, the First Respondent’s campaign team which comprised of Campaign Manager Ishmael Wore, Paul Telovae, Gerard Miruku, David Viloro, Walter (from Polo) and others, was present;
   • (d) prior to giving the $100 bill to the said Elizabeth Makorore, the Respondent’s Campaign Manager, Ishmael Wore had made statements accrediting and or promoting the First Respondent’s suitability as MP for NWCC and urging the community to vote for the First Respondent; and
   • (e) in giving the $100 bill to the said Elizabeth Makorore, the First Respondent, through his Campaign Manager Ishmael Wore had induced the said Elizabeth Makorore to vote for the First Respondent and she did vote for the First Respondent on election date.”
4. The First Respondent submitted that the pleadings failed to disclose how and in what way the gift was corruptly given so as to influence the voters to vote for the First Respondent. The statutory basis for this ground is pleaded as section 126(1) (a) and (b) (iii). That provision provides as follows;
   • “126. Election bribery
   • (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) ...
     • (ii) ..
     • (iii) influence a third person to vote, refrain from voting or vote in a particular way at an election.”
5. For the Petitioner it is argued that a benefit, being $100.00, has been given to Elizabeth Makororo at a school bazaar on 9 March 2024 by the First Respondent’s campaign manager. The school bazaar coincided with the First Respondent’s election awareness program.
6. The Petitioner identified the particulars as being:
   1. The giving of the $100.00; and
   2. The recipient was a registered voter and resident in the Northwest Choiseul Constituency; and
   3. The First Respondent’s campaign manager and other named persons were present; and
   4. Before the giving of the $100.00 the Campaign Manager had promoted the First Respondent as the Member of Parliament and urged the community to vote for the First Respondent ; and
   5. The giving of the $100.00 had induced the recipient to vote for the First Respondent on the date of the election.
7. In the circumstances of this case, in order to succeed on this ground in the petition section 126(1) (a) required the giving of a benefit to another person. The giving of the $100.00 to Elizabeth Makorore would satisfy that requirement if proved. That action must be accompanied with the intention pleaded in section 126(1)(b)(iii), that is, to influence the other person (here Elizabeth Makorore) to influence a third person to do one of three things:
   • “to (i) vote; or
   • (ii) refrain from voting; or
   • (iii) vote in a particular way at the election.”
8. There is nothing in the pleadings to show in what way Elizabeth Makorore might influence a third person to do any of those three things. It is not alleged that she had influenced any third person to do any of those three things nor is it alleged that in giving the $100.00 to Elizabeth Makorore, the intention of the Campaign Manager was for her to influence another person.
9. In Salepuka v Panakitasi [2020] SBHC 72 the Chief Justice said at paragraphs [26] and [27]:
   • “26. If some third person is being bribed, again insufficient particulars are disclosed. No third person is being identified as being the subject of the bribery allegation. By failing to specify sufficient particulars, the Respondent would not have been in a position to know how that allegation amounted to a bribe and for him to be able to defend himself.
   • 27. By failing to do that, the pleadings amounted to nothing more than what can be deducted by necessary implication or inference, and is unacceptable. The function of pleadings is not merely to define the cause of action, which is, that a promise, offer or gift was made or given, but also to show what acts or omissions will be put forward as constituting the specific element of that activity being done with an intention to influence voters to vote for the Respondent. It is necessary to state how and in what way the gift was corruptly given so as to influence the voter to vote for the Respondent. When assessed in that light, the facts pleaded are insufficient and inadequate. This is bad pleadings and should be dismissed.”
10. The pleadings in the present case do not even allege that there was an intention to influence a person other than Elizabeth Makarore. The First Respondent cannot be left to simply guess what is being alleged. The lack of any allegation of influencing Elizabeth Makorore so that she would then influence a third person, makes it plain that the pleadings are deficient. There are therefore insufficient grounds set out in this allegation to warrant the hearing of the petition in relation to ground 13(2).

Ground 13(5):

11. The petition contains the following at ground 13(5):
    • “(5) That on 3 April 2024, during the election campaign period, the First Respondent through his agent, one Goldie Zoveke of Nukiki village in Vuruvachu Ward of NWCC; within the vicinity of the Barabarakakasa Community Kaikai House area prior to the commencement of the First Respondent’s campaign program that day, did commit the offence of Election Bribery, contrary to section 126(1)(a) and (b)(iii) EA the particulars of which offence are as follows –
    • (a) by giving a $50 bill to one, Letrina Naio;
    • (b) the said Letrina Naio being a registered voter and a resident of Barabarakakasa Community of Taba Ward in NWCC;
    • (c) that Goldie Zoveke is a cousin brother of the First Respondent and has worked with the First Respondent’s Community Agent, during the Respondent’s last term in Parliament, arranging meetings and carrying the First Respondent’s luggage, travelling with the First Respondent to the communities whenever the First Respondent goes to Choiseul to visit the communities in NWCC;
    • (d) that the First Respondent was physically present with his campaign team, which included the said Goldie Zoveke who accompanied and was part of the First Respondent’s campaign team at the material time;
    • (e) prior to giving the $50 bill to the said Letrina Naio, the First Respondent through his Community Agent, Goldie Zoveke had asked the said Letrina Naio if she (Letrina Naio) was a registered voter;
    • (f) that when the said Letrina Naio confirmed she was a registered voter, the First Respondent through the said Community Agent, Goldie Zoveke, gave the $50 bill to the said Letrina Naio, asking her to vote for the First Respondent; and
    • (g) in giving the $50 bill to the said Letrina Naio, the First Respondent through his Community Agent, Goldie Zoveke had induced the said Letrina Naio to vote for the First Respondent on election date.”
12. The same issues that arose with ground 13(2) arise in relation to ground 13(5). There is nothing in the pleadings to indicate who, other than the recipient of the $50.00, should be induced to vote, refrain from voting or vote in a particular way. There is nothing to show that there was an intention on the part of the giver of the $50.00 to show how Letrina Naio might induce a third person to vote, refrain from voting or to vote in a particular way.
13. There is a further problem for the Petitioner. The $50.00 is paid to have been given by the cousin brother of the recipient. That is not an unusual thing to do, and there is no pleading that the $50.00 was given in return for voting in a particular way, let alone that it was given so she might influence an unknown third person.
14. For the same reasons as for ground 13(2). Ground 13(5) must be dismissed.

Ground 13(7)

15. The petition contains the following at Ground 13(7):
    • “(7) That on 16 April 2024 at about 1.30pm, after the close of the election campaign period, the Respondent through one of his agents, namely; Hon. Billy Saeve, MPA for Vuruvachu Ward of Northwest Choiseul Constituency in Choiseul Province, at the Northern end of the Taro soccer field, did commit the offence of Election Bribery, contrary to section 126(1)(a) and (b)(iii) EA, the particular of which offence are as follows –
    • (a) by giving a $100 bill to one, Emily Pitakaka;
    • (b) the said Emily Pitakaka being a registered voter and resident of Nukiki village in Vuruvachu Ward of NWCC;
    • (c) that Hon. Billy Saeve MPA is at material times a very strong supporter of the First Respondent – he and the First Respondent have a common interest dating back a few years over the ownership and chieftaincy over Bakele tribal land in Nukiki, NWCC;
    • (d) that during the recent election campaign period the said Hon, Billy Saeve MPA travelled together with the First Respondent and his election campaign team to communities in NWCC to campaign for the First Respondent.
    • (e) in handling the $100 bill to the said Emily Pitakaka, the First Respondent’s agent Hon. Billy Saeve, MPA uttered words urging the said Emily Pitakaka to vote for the First Respondent; and
    • (f) in doing so, the First Respondent through his agent Hon. Billy Saeve MPA had induced the said Emily Pitakaka to vote for the First Respondent and she did vote for the First Respondent on election date.”
16. It is alleged in the particulars that:
    • (1) The Hon Billy Saeve MPA gave $100.00 to Emily Pitakaka, and
    • (2) The recipient is a registered voter and resident in Northwest Choiseul Constituency;
    • (3) The Hon Billy Saeve MPA is a strong supporter of the First Respondent.
    • (4) The giver of the $100 travelled with the First Respondent during the election campaign.
    • (5) That in giving the $100 he said words urging the recipient to vote for the First Respondent.
    • (6) This had induced the recipient to vote for the First Respondent.
17. It is noted that in the pleadings the Hon Billy Saeve MPA has also been referred to as the agent for the First Respondent. In the sworn statement of Emily Pitakaka filed on 28 June 2024 in support of this ground, it is alleged that a person named Billy Savevai is the cousin brother of the recipient and it was Billy Savevai who gave her the $100.00 and said to her words meaning “you my sister must vote for the former Honourable Kuma as I too vote for Harry Kuma.”
18. The recipient confirmed that she voted for the First Respondent but whether she was induced to do so as a result of receiving $100.00 from her cousin brother is not stated. The recipient’s husband deposed that Billy Savevai is the same person as Hon Billy Saeve.
19. There remains the same issue as there is in grounds 13(2) and 13(5). There is no indication as to who Emily Pitakaka is to influence in one of the three ways set out in section 126(1) (b) (iii). For that reason the pleadings are inadequate so far as ground 13(7) is concerned.

Ground 13(8)

20. The Petitioner, at ground 13(8)(a) submitted that the Second, Third and Fourth Respondents each breached a duty contrary to section 112(1)(d) of the Electoral Act. Section 112 provides as follows:
    • “122 Non-compliance with this Act
    • (1) This section applies if it is established during a hearing of an election petition that, in relation the election concerned, there was:
    • (a) a failure to comply with the time required for doing anything under this Act; or
    • (b) an omission or irregularity in filling out a form required under this Act; or
    • (c) a lack of or defect in the appointment of an electoral official or polling or counting agent; or
    • (d) an absence of, or mistake or omission or breach of duty by, an electoral official before, during, or after polling.
    • (2) The Court must not declare the election invalid only because of the matter mentioned in subsection (1) if the Court is satisfied that:
      • (a) The registration of elections and the conduct of the election substantially complied with the Constitution, this Act and any other written law; and
      • (b) The matter mentioned in subsection (1) did not affect the result of the election.”
21. If the Court is satisfied that there has been a breach of duty by an election official before during or after polling subsection (2) requires the Court to consider whether the conduct of the election substantially complied with the Constitution, the Electoral Act and any other written law. If there has been substantial compliance then, if the breach of duty by the election official did not affect the result of the election, the Court cannot declare the election invalid because of the alleged breach.

Second Respondent - Ground 13(8) (a)(i)

22. The alleged breaches of duty by the Second Respondent are set out at paragraph 13(8)(a) of the Petition:
    • “(a) In respect of the Second Respondent –
    1. Ordering movement of NWCC ballot boxes from the Taro Police station, to new PS residence where electoral officials were using as their office and Provincial Assembly between 17 and 19 April 2024, contrary to section 98 EA. Whereas the counting centre appointed for NWCC pursuant to section 98 EA is the Provincial Assembly Chamber;
    2. Failure to take action and or perform her duty under section 104(1) and (2) EA, when counting agents namely, Raphael Singer and Augustine Morris, raised complaints against the Third Respondent who was seen to be tampering with ballot papers during the counting process;
    3. Ordering counting to stop at 9pm of Thursday 18 April 2024, without any practical reasons for doing so, contrary to section 102(2) EA;
    4. Immediately replacing counting official, Calinta with another counting official, when Calinta discovered and brought to the attention of all counting officials and agents that five (5) ballot papers picked by the Third Respondent and placed in the First Respondent’s heap of ballots belonged to other candidates.”
23. The first alleged breach of duty in the petition at paragraph 13(8) (a) (i) is that the Second Respondent ordered the ballot boxes to be moved from the Taro Police Station to the new residence of the Provincial Secretary. The electoral officers were using that house as an office as well as using the Provincial Assembly for counting purposes. The Petitioner relies on section 98 of the Electoral Act. Section 98 provides as follows:
    • “The Commission must fix a place, date and time for the counting of votes for each constituency.”
24. There is no suggestion that the Commission failed to fix the place, date and time as required. There is no suggestion that counting occurred anywhere else but at the Provincial Assembly. If boxes were moved to the Provincial Secretary’s house for safe keeping, while those who counted the votes rested for the night, that would not constitute a breach of any duty identified in section 98.
25. The second allegation of a breach by the Second Respondent is said to be a breach of duty under section 104(1) and (2) of the Act. The alleged breach was: “failing to take action or perform her duty when two named counting agents raised complaints against the Third Responded alleging he had tampered with ballot papers during the counting process.” The allegation does not set out in what way the Third Respondent had tampered with the ballot papers. In written submissions the Petitioner’s submission was limited to: “This is not a mere allegation. The sworn evidence of Augustine Morris (a counting agent) is already before the Court.”
26. Section 104 of the Electoral Act provides:

“104 Complaints during counting process

(1) A counting agent may complain to the returning officer during the counting process about:
(a) an alleged breach of any counting procedure; or
(b) alleged interference with the rights of the candidate or counting agent; or
(c) another alleged irregularity at the counting centre.
(d) The returning officer must:
(e) record the complaint in the approved form; and
(f) immediately decide the complaint; and
(g) record the decision, including the reasons for the decision; and
(h) if the officer is satisfied that the complaint is substantiated – immediately take appropriate action to remedy the cause of the complaint.”

27. Counsel for the First Respondent submitted that what is alleged in the petition are mere assumptions and speculation and are not grounds to invalidate the election. The principal argument was left for Counsel Mr Lapo for the Second, Third and Fourth Respondents to argue.
28. Mr Lapo correctly submitted that the movement of the ballot boxes for safe keeping has not been said to have caused an effect to the results of the election. The Petitioner has relied on section 98 of the Act when complaining about the movement of the ballot boxes, Section 98 places no duty on the Second Respondent. It requires the Commission to fix a place, date and time for the counting of votes. Ground 13(8) (a) (i) must therefore fail.

Ground 13(8) (a) (ii)

29. The Petitioner has claimed the Second Respondent failed to take action or perform her duty under section 104(1) and (2) of the Act when counting agents raised complaints against the Third Respondent. It was alleged the Third Respondent has tampered with ballot papers during the counting process.
30. Section 104(1) places no duty on the Second Respondent. Section 104(2) places several duties on her. The only duty identified in the petition is a failure to take action. Although not specifically pleaded I take that to be a reference to section 104(2) (d). That only places a duty on the Second Respondent to take appropriate action in the event the officer is satisfied that the complaint is substantiated. Counsel for the Petitioner asked the Court to take into account the evidence tendered. The evidence filed by the petitioner does not establish that the Third Respondent tampered with the ballot papers. It seems that ballot papers were put in piles which is entirely appropriate for counting purposes. When an issue was raised, even on the evidence of the named counting agents the Second Respondent took action. If the Court considers there has been non-compliance with the Act the Court is required to consider section 112 of the Act which provides:
    • “112 Non-compliance with the Act
    • (1) This section applies if it is established during a hearing of an election petition that, in relation the election concerned, there was:
      • (a) A failure to comply with the time required for doing anything under this Act; or
      • (b) An omission or irregularity in filling out a form required under this Act: or
      • (c) A lack of or defect in the appointment of an electoral official or polling or counting agent; or
      • (d) An absence of, or mistake or omission or breach of duty by, an electoral official before, during, or after polling.
    • (2) The Court must not declare the election invalid only because of the matter mentioned in subsection (1) if the Court is satisfied that:
      • (a) The registration of electors and the conduct of the election substantially complied with the Constitution, this Act and any other written law; and
      • (b) The matter mentioned in subsection (1) did not affect the result of the election.
31. Therefore it is only if the Court is satisfied that there had been a breach of an identified duty of the Second Respondent that falls within section 112(1)(d) that the Court is required to consider both paragraphs (a) and (b) of section 112(2). Mr Lapo submitted that there was no breach, but submitted that if the Court considered there had been a breach, the Petitioner had not pleaded nor placed sufficient evidence before the Court to overcome the mandatory direction set out in section 112(2)(a) and (b). On the material placed before me the grounds set out in ground 13(8)(a)(ii) and the lack of particularity in the pleading persuades me that if there had been a breach there had been substantial compliance with the Act and that any such breach did not affect the result of the election. In terms of section 111(1) (b) (ii), there are insufficient grounds to warrant the hearing of the petition in respect of this ground.

Ground 13(8) (a) (iii)

32. Section 102(2) of the Act requires the counting of votes to proceed continuously as far as is practical. The allegation is that the counting stopped at 9.00pm on Thursday 18 April 2024 without any practical reason. It is not disputed that counting did stop at that time and a very practical reason was given. Counting was said to have continued for 8 hours without any provision of refreshment. It is not alleged that stopping when those counting were hungry and tired has affected the result in any way. Indeed it is likely the counting would be more accurate following a refreshing break. I find that the decision to stop and resume the next day was both sensible and substantially complied with the law. It certainly could not be said to have affected the election.

Ground 13(8) (a) (iv)

33. The Petitioner pleads that the Second Respondent was in breach of her duty by replacing a counting official named Calinta. Nowhere in the pleadings does the Petitioner identify what duty was alleged to have been breached. Significantly the counting official Calinta is not further identified and on the sworn and published material before me there was no one named Calinta who was a counting official in the constituency. This ground is clearly frivolous.

Third Respondent - Grounds 13(8) (b) (i) – 13(8) (b) (v)

34. The Petitioner has pleaded that the Third Respondent was not impartial and breached a duty contrary to section 112(1) (d). There has been no duty identified as having been breached. The Respondents are entitled to know what duty is alleged to have been breached. While the petition makes allegations under each of the subparagraphs when a petitioner alleges that an official is in breach of a duty it is incumbent on the petitioner to identify the duty and set out in what way that duty has been breached and what the consequence of that breach is alleged to be. The petition does none of those things. Applying the requirements of section 112(2) of the Act I cannot declare the election invalid on the basis of the matters put forward in grounds 13(8)(b)(i) – (v).

Grounds 13(8) (c) (i) – (v)

35. The grounds set out in grounds 13(8) (c) (i) – (iv) do not set out what duty is said to have been breached. Those grounds are recorded as follows:
    • “(c) In respect of the Fourth Respondent –
    1. The Fourth Respondents also demonstrated lack of impartiality;
    2. The Fourth Respondents did not check the tick and candidate name on the ballot;
    3. The Fourth Respondents flipped the ballot papers as they continue counting, making it impossible for counting agents to see the tick and names on the ballot; and
    4. They positioned counting agents at a distance where the counting agents cannot properly see the tick and marks on the ballot paper.”
36. It is not pleaded in what way the counting officials for Northwest Choiseul constituency demonstrated a lack of impartiality. The second allegation is totally inconsistent with all the evidence available. How could votes be counted without the candidates name and the tick on the paper being checked? The Third and Fourth allegations are that the Fourth Respondents in their manner of counting made it impossible for the counting agents to see the tick and the names on the ballot and by positioning themselves at a distance where counting agents cannot properly see the tick and marks on the ballot paper.
37. Section 68 (4) of the Act provides:
    • “The function of a counting agent is to observe the counting of votes in the candidate’s constituency.”
38. As Higgins PJ said in Lusibaea v Filualeu [2020] SBHC 28 when discussing section 68(4) of the Act:
    • “Neither this provision nor s102 mandates that the counting agent actually sees each vote cast and counted. It is implicit that the agent be afforded a reasonable opportunity to carry out his or her function.
    • The Returning Officer also has a duty to ensure that no agent is able to touch or interfere with the count or any voting paper. Two metres would be the minimum distance to keep agents way from a ballot paper: Four metres does not seem unreasonable. Indeed in Holosivi v Vahoe [2008] SBHC 101, 5 metres was held to be reasonable.
    • In any event, in the absence of some other matter, it is noteworthy that no complaints appear to be recorded concerning these alleged difficulties.
    • Further, s.112 of the Act has the effect that even it was proved that the Returning Officer had been over-zealous in keeping agents away from the ballot papers, it is not possible to infer that the distancing measures, if they occurred with the result alleged, affected the result of the election (see s.112 (2) (b) of the Electoral Act 2018 “the Act”).”
39. It is not alleged how far the agents were from those counting the votes. But if five metres has been held to be reasonable, such a distance would not permit an accurate identification of ticks and names of candidates. As Higgins PJ observed, the allegations even if they occurred do not demonstrate how the election result was affected in terms of section 112 (2) (a) and (b) of the Act. With no breach of duty being identified I cannot conclude that any of the grounds pleaded under ground 13(8) (c) (i) – (iv) would permit me to find that the election was invalid. Accordingly section 111(1) (b) (ii) applies equally to these grounds as those previously mentioned.
40. At paragraph 14 of the Petitioner’s submissions, counsel submitted that as a result of the unlawful conduct of the Respondents, described in paragraphs 12 (1) – (8) herein the Petitioner has been –
    • (1) Denied his right to a free and fair election; and
    • (2) Denied his right to be returned as the duly elected MP for NWCC.
41. The reference to paragraphs 12(1) – (8) is presumably a reference to paragraph 13(1) – (8) as paragraph 12 had no subparagraphs and pleaded that the First Respondent was appointed and sworn in as Minister responsible for Commerce, Industries, Labour and Immigration in the Government. It contains no reference to unlawful conduct. Paragraphs 13(8) (b), (c) and (d) make no allegation of unlawful conduct. For the reasons set out in this decision, ground 13(8) (a) (iv) of the petition is dismissed as it is frivolous. All the remaining grounds set out in the petition are dismissed pursuant to section 111(1) (b) as insufficient grounds are provided to warrant the hearing of the petition.

By the Court
Hon. Justice Howard Lawry
Puisne Judge