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Manetoali v Mahaga [2024] SBHC 166; HCSI-CC 179 of 2024 (5 December 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 179 of 2024

BETWEEN:

SAMUEL MANETOALI
Petitioner

AND:

TREVOR HEDLEY MAHAGA
First Petitioner

AND:

ATTORNEY GENERAL
(Representing the Electoral Commission, the Chief Electoral Officer, the Electoral Manager for Isabel Province and the Returning Officer for the Gao Bugotu Constituency)
Second Respondent

Date of Hearing: 5 December 2024
Date of Ruling: 5 December 2024

Ms. R. Danitofea for the Petitioner
Ms. S. Kilua for the First Respondent
Mr. N. Ofanakwai for the Second Respondent

RULING

AULANGA; PJ:

1. This is a second round of application by the First Respondent to strike out the Amended Election Petition (“AEP”) filed by the Petitioner on 24^th September 2024. Only three grounds itemised as “3.2, 4.3 and 4.4” remained in the AEP following the first interlocutory application and the Court’s ruling delivered on 17^th September 2024. All these remaining grounds are the subject of this application.
2. As stated in the first application, the Petitioner and the First Respondent were candidates for the Gao Bugotu constituency in the general election in April 2024. The First Respondent was the successful candidate. He polled 2861 votes while the Petitioner polled 2848 votes. This is a close margin of 13 votes, cast in favour of the First Respondent.
3. The application was amended on 2^nd December 2024. It was brought pursuant to section 111 (b) (c) of the Electoral Act 2018, rule 25 (4) (a) (ii) and rule 50 of the Electoral Act Petition Rules 2019 and the inherent jurisdiction of the Court. The First Respondent sought orders for entire dismissal of the AEP and for costs. This was supported by the Second Respondent.
4. An election petition case is not new in this jurisdiction. There is a copious body of decisions from this Court that makes it plain clear that to bring a proceeding against an elected candidate who was voted by the majority of the people, is a serious thing. Given the standard of proof of an election petition case is higher than an ordinary civil case, this has indicated that a party bringing the matter to the Court must have a reasonable cause of action before any challenge can be made. This is a due diligence exercise as stated in Salopuka v Panakitasi [2020] SBHC 72 and more recently in Maneka v Bosawai [2024] SBHC 73; Rex v Agovaka [2024] SBHC 137 and Kopu v Bonuga [2024] SBHC 146. This is a sacred right that the legislature has laid down strict requirements to follow when dealing with the election petition case. Any short of will render the petition untenable and a nullity. I think this should now be a rule of thumb for practising lawyers in this jurisdiction.
5. Ground 3.2 relates to the illegal act of engaging in campaign activity outside the campaign period by the First Respondent. Accordingly, the particulars of the allegation are set put as follows “On 17^th April 2024 at Ole village, the 1^st Respondent engaged in campaign activities by greeting, welcoming and feeding persons going to the Ole polling station to cast their vote or coming out of the polling station after having cast their votes with the intent of influencing the said persons or other persons within the Ole village vicinity to vote for the 1^st Respondent contrary to section 124 of the Electoral Act 2018.”
6. Section 5 (1) of the Electoral Act 2018 defines what is a campaign activity. Significantly, section 5 (1) continues to state that in order for it to be considered an electoral illegal act, it must be capable of proving that the campaign activity is intended or calculated to affect the result of an election or to influence a voter in his or her decision in voting. Any of these two requirements must be pleaded in the allegation. Hence, it is incumbent on the Petitioner to demonstrate this requirement in the pleadings for it to be actionable in Court. Mere assertion is not enough.
7. The crux of the First Respondent submission to dismiss this ground is the failure of the Petitioner to amend this ground by pleading section 5 (1) (b) of the Electoral Act 2018 and the insufficiency of the pleadings to sustain this ground for trial.
8. In contrast, the Petitioner submits that it is inappropriate to plead this section in the allegation and even if that is not pleaded, it is a matter that should be investigated by calling of the witnesses at the trial.
9. I think what the First Respondent meant was the omission to plead the facts of the said campaign activity was likely to affect the result of the election or to influence a voter on his or her decision on the voting that took place for the said Gao Bugotu Constituency and not a direct quoting of section 5 (1) (b) of the Electoral Act 2018.
10. The starting point to consider is to look at the pleadings in order to ascertain whether it discloses a cause of action to warrant a trial. I have looked at the pleadings for this ground. Unfortunately, the Petitioner fails to set out the material facts of the campaign activity to satisfy the statutory requirement of section 5 (1) of the Electoral Act 2018. Shortly put, the pleadings and the evidence relied upon by the Petitioner for this ground have failed to establish these two important requirements critical for disclosure of a cause of action under section 124 of the Electoral Act 2018 against the First Respondent. First, the pleadings failed to disclose the names of the persons said to be present or subjected to the illegal campaign done by First Respondent at the material time. In the absence of specifying the names of the people, it is difficult to ascertain how that campaign activity will affect the result of the election or its influence on the decision on their voting. Second and finally, in the absence of naming those persons and the failure to plead any of the requirements under section 5 (1) of the Electoral Act 2018, how this Court will know that the said campaign activity will affect the result of the election or its influence on the decision on their voting on the polling day. If the Court is to allow this ground for trial, it will end up in a realm of receiving evidence based on guesswork and assumptions which is unacceptable. Based on those reasons, this ground is one that is clothed with assumption and speculation. The material facts to show the requirements under section 5 (1) have not been pleaded and it must follow that the illegal act under section 124 of the Electoral Act 2018 is not made out to preserve this ground for trial.
11. The last two remaining allegations itemised as 4.3 and 4.4 pertain the alleged improper conduct of the Returning Officer regarding the pre-poll ballots at the counting venue in Buala. These two grounds can be conveniently addressed together.
12. Allegation 4.3 states “On 19^th April 2024 at the purportedly fixed counting place at Buala Education Office, the Returning Officer failed to give to the Counting Agents of the Petitioner and other candidates the statement of ballot papers pursuant to section 100 (4) of the Electoral Act 2018.” While the particulars in allegation 4.4 are as follows “19^th April 2024 at the purportedly fixed counting place at Buala Education Office, the Returning Officer failed to verify all ballot papers cast together with the sealed packet containing pre-poll ballots contrary to section 100 (1) of the Electoral Act 2018.”
13. The allegations in these two grounds relate to the failure of the Returning Officer to comply with section 100 (1) and (4) of the Electoral Act 2018.
14. Apart from the failure to plead whether there was a request made by the Counting Agent to the Returning Officer for allegation 4.3, and the material facts to show which subparagraph of section 100 (1) of the Electoral Act 2018 had been breached, it is important to note that any allegations regarding noncompliance with the Electoral Act 2018 has to be considered under section 112 of the Electoral Act 2018.
15. Section 112 of the Electoral Act 2018 states:
    • “112. 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 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.”
16. Section 112 (2) above is crystal clear that the Court must not declare the election result invalid because of the noncompliance with the Act unless the conduct of the election has breached the Constitution and any other written law, and that the alleged noncompliance has affected the result of the election. The onus is on the Petitioner to demonstrate in the pleadings that, in this case, the alleged improper conducts of the Returning Officer has affected the result of the election for the Gao Bugotu constituency.
17. During the course of the hearing, counsel for the Second Respondent informed the Court that thirteen (13) pre poll ballot papers were not counted. The difference of the votes between the First Respondent and the Petitioner was 13 and if those 13 pre polls votes were casted in favour of the Petitioner and counted, the result would be a tie between the First Respondent and the Petitioner.
18. Only three (3) persons who worked as police officers, namely, Ronald Joshua Devele, Richard Bisset and Moffat Tei, gave statements that they in fact voted at the pre poll. None of them said that they voted for the Petitioner. The other ten (10) persons remain unknown.
19. There is no absolute guarantee that all these 13 pre poll ballots were casted for the Petitioner. As stated earlier, not all the 13 persons have provided evidence by way of sworn statements. Only 3 persons did, however, they did not state that they voted for the Petitioner.
20. The Petitioner bears the onus to set out the material facts in the pleadings for these two allegations that the conduct of the election or the Returning Officer is in contempt of section 112 (2) of the Electoral Act 2018. Unfortunately, the pleadings and the evidence in support of these two grounds are deficient to show how and in what way the election and the alleged improper conduct of the Returning Officer had breached the Electoral Act 2018 and how this has affected the result of the election which would warrant these grounds to proceed for trial. None of these matters has been pleaded which is fatal to the case against the Second Respondent. These are important requirements resonated by case laws from petition cases that need to be established in the pleadings for these grounds and for these reasons, these two allegations must be dismissed accordingly.

Orders of the Court

1. The application by the First Respondent to strike out the Amended Election Petition filed by the Petitioner on 24^th September 2024 is granted.
2. Consequently, the entire Amended Election Petition is struck out and dismissed accordingly under rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007.
3. A Certificate confirming the validity of the election of Honourable Trevor Hedley Mahaga as duly elected candidate for Gao Bugotu Constituency is to be issued to (i) the Governor General; (ii) the Speaker of the National Parliament and (iii) the Electoral Commission.
4. Cost of this proceeding shall be paid by the Petitioner to the First and Second Respondents, to be taxed if not agreed.

THE COURT
Augustine S. Aulanga
PUISNE JUDGE