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Lenga v Vokia [2025] SBHC 10; HCSI-CC 197 of 2024 (18 February 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 197 of 2024

BETWEEN

BRADLEY LENGA
Petitioner

AND:

JAMIE LENCY VOKIA
Respondent

Date Hearing: 28 January 2025
Date of Ruling: 18 February 2025

Mr G Suri for the Petitioner
Ms J Soaika for the Respondent

RULING

AULANGA, PJ:

1. The Petitioner, Bradley Lenga, applies to withdraw the Amended Election Petition (“AEP”), filed on 3^rd July 2024. Following the court’s ruling on 2^nd September 2024, the AEP contains only two grounds of election bribery, itemised as “4 (A)” and “4 (B)”, as grounds preserved for trial.
2. In this application, the Petitioner seeks the leave of the court to withdraw the AEP on the sole ground of interference with witnesses. If leave is granted, the Petitioner also seeks the costs of and incidental to the proceeding be paid by the Respondent on an indemnity or increased basis.
3. The application is partially contested.

Leave to withdraw the AEP

4. The application is made pursuant to Rule 36 of the Electoral Act Petition Rules 2019. The Petitioner has complied with all the prerequisite undertakings to enable the grant of the leave for withdrawal of the proceeding as required under Rules 36 to 39 of the Electoral Act Petition Rules 2019. At paragraph 13 of the Respondent’s written submission and further confirmed by counsel Soaika during the hearing in court, except for the issue on costs, the Respondent does not have any objection to the withdrawal of the AEP. The Respondent agrees that the Petitioner has complied with all the process for the withdrawal of the AEP as required under the Electoral Act Petition Rules 2019 and hence, the AEP can be withdrawn without objection.
5. I have considered the first limb of the application for leave to withdraw the AEP. This is an unopposed application. Given the uncontentious nature of the application and having satisfied that the Petitioner has duly complied with the process for leave to withdraw the petition as required under Rules 36 to 39 of the Electoral Act Petition Rules 2019, I therefore grant leave to withdraw the AEP. Having reached that decision, I order that the AEP filed on 3^rd July 2024 is hereby withdrawn.

Whether or not the Petitioner is entitled for costs

6. The next issue is whether the Petitioner is entitled for costs as a result of his decision to withdraw the AEP. In this case, the proceeding was brought by the Petitioner and now, he decides to withdraw it prematurely before proceeding to trial. In such an instance, should the Petitioner be entitled for costs?
7. It is trite law in this jurisdiction that the court has a discretion as to whether costs are payable by one party to another, the amount of those costs and when they are to be paid as explained in Interreligious and International Federation of World Peace v Hocking Construction and Joinery Ltd [2012] SBHC 164. Where costs are in the discretion of the court, a party has no right to costs unless and until such costs are awarded. This discretion must be exercised judicially in accordance with reason and justice.
8. If the court decides to make an order about costs, the general rules is that the unsuccessful party will be ordered to pay costs of the successful party. However, the court can make a different order to suit the circumstances of the case at hand. In deciding what costs to be made, the court must consider (1) the conduct of the parties, (2) whether the party has partially succeeded on the part of the case and (3) any payment done to the court or an offer for settlement which is drawn to the court’s attention. In Halsbury’s Laws of England Fourth Ed, Vol 10 (at pages 17-18), its states that the conduct of the parties includes:
   • “(a) the conduct before, as well as during the proceedings and in particular the extent to which the partis followed any pre-action protocol;
   • (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
   • (c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and
   • (d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim”
9. In BP v London Borough of Harrow (Costs) [2019] EWCOP 20 (14 June 2019) (at page 5), referred to by counsel for the Petitioner, the court stated that “any failure by the party to comply with a rule, practice direction or court order” is also a pertinent consideration for the award of costs in a proceeding.
10. In relation to the present proceeding, that is, for withdrawal of an election petition, the court, as the starting point, must consider Rule 36 (5) of the Electoral Act Petition Rules 2019 which states:
    • “5. Subject to sub-rule (3) hereof, the Court may grant leave to withdraw a petition upon such terms as to costs or otherwise as it considers just. Provided that a respondent to a petition shall be entitled to costs incurred prior to the grant of leave to withdraw the petition, unless the Court orders otherwise.” (underlined mine).
11. The above rule makes it plain clear that the Respondent is entitled for costs incurred in the proceeding prior to the grant of the leave for withdrawal of the petition. However, that is not automatic and can be waived in appropriate circumstances as denoted by the words “unless the Court orders otherwise”.
12. Rule 48 (1) and (2) of the Electoral Act Petition Rules 2019 then provides for fees and costs of a petition case, as follows:
    • “48. (1) All costs of and incidental to the presentation of a petition and to the proceedings consequent thereon shall be defrayed by the parties to the petition in such manner and in such proportions as the Court may determine; and in particular any costs which in the opinion of the Court have been caused by vexatious conduct, unfounded allegations or unfounded objections on the part either of the petitioner or of the respondent, and any needless expense incurred or caused on the part of the petitioner or respondent, may be ordered to be defrayed by the parties by whom it has been incurred or caused, whether or not they are on the whole successful.
    • (2) Costs shall be assessed in the same manner as they are assessed in the High Court and may be recovered in the same manner as costs in civil proceedings.”
13. Pertinent to this issue, Rule 48 (1) bears the core words that “All costs of and incidental to the presentation of a petition and to the proceedings consequent thereon shall be defrayed by the parties to the petition in such manner and in such proportions as the Court may determine”. The word “defrayed” in its ordinary and plain meaning in The New Shorter Oxford English Dictionary means “paid for or reimbursed”. And the verb “defray” means “Pay the expenses of (a person), reimburse". And for completion purposes, the said Rule requires that all costs of and incidental to the presentation of a petition and to the proceedings consequent thereon shall be defrayed by the parties to the petition in such manner and in such proportions as the Court may determine. In the ordinary circumstances, such as in Darcy v Piasi [1994] SBHC 23, a case involving withdrawal of an election petition before trial, the Respondent is usually entitled to costs. In awarding costs against the Petitioner, Muria C.J (as he then was) stated (at page 2):

“Election petitions are meant to be a process whereby genuine questions arising from any election as to the right of any person to be or remain an elected member are brought before the court to be determined. It is not a process whereby a defeated candidate can simply swim the court with allegations in the hope that those allegations may be established in the process.

The course of action now taken by the Petitioner in this case is clearly one that must be met with costs.”

14. In the current proceeding, the Petitioner has provided unchallenged evidence, showing how the Petitioner’s two witnesses namely, David Tome and Solomon Paeni had been interfered with by agents of the Respondent in that they were bribed with various amounts of money given on various dates in September 2024.
15. The Petitioner, at page 2 of his written submission on costs, describes the purported giving and receiving of money as follows:
    • “[a] Witness David Tome said in his Sworn Statement that David Rex gave him $1,000 in the afternoon of 10^th September 2024 and told him to go down to Honiara City to see Lency Vokia. This payment of $1,000 is admitted by David Rex in paragraph 7b. of his Sworn Statement.
    • [b] Witness David Tome also said in his Sworn Statement that the wife of the Respondent, Ethel Vokia, gave him $2,000 cash at the Solomon Kitano Mendana Hotel car park on Wednesday 11^th September 2024. This payment of $2,000 is admitted by Jamie Lency Vokia in paragraph 8b. of his Sworn Statement.
    • [c] Witness Solomon Paeni stated that the CDO lady gave him $1,500 cash at the Hyundai Mall. This occurred on Thursday 19^th September 2024. This payment of $1,500 is admitted by Jamie Lency Vokia in paragraph 9f. of his Sworn Statement. He admitted that this occurred on Thursday 19^th September 2024.”
16. I have perused the sworn statements of David Tome and Solomon Paeni, together with the sworn statements of David Rex and Jamie Lency Vokia, filed for this hearing. It is clear that the entirety of the evidence has established the following pertinent matters; first, David Tome and Solomon Paeni are the only two primary witnesses for this proceeding; second, David Rex, Ethel Vokia and the CDO lady have given money to Tome and Paeni on various dates in September 2024; third, the giving of the money occurred while this proceeding is still before the court; fourth, Tome and Paeni willingly received and used the money; and finally, the purpose of giving the money was to frustrate this proceeding.
17. Counsel Suri argues that as a result of the interference, it has affected the attitude and credibility of the Petitioner’s witnesses to give evidence at the trial. Counsel further says that the Petitioner was not involved in what he described as “collusion” or “collaboration” with the other party and therefore, the Court is entitled to depart from the general rule for costs against the unsuccessful party as explained in BP v London Borough of Harrow (Costs) [2019] EWCOP 20 (14 June 2019) and Ritter v Godfrey [1920] 2 KB 47 and order costs against the Respondent for the withdrawal of the proceeding.
18. I have read the two cases referred to by counsel Suri. In BP v London Borough of Harrow (Costs) (supra), the court was dealing with an application by applicant, BP, on the issue of whether it was appropriate for the court to depart from the usual costs rule and order costs against the respondent, London Borough of Harrow. The applicant submitted that this is a case where it is appropriate to depart from the usual costs rule and to order the costs of the hearing be paid by the respondent, because of the respondent's consistent failure to offer a trial period at home before the commencement of and for the duration of the proceedings, and its decision to do so only after the hearing had commenced. The court dismissed the application on the basis that the circumstances of the case did not show the respondent’s conduct had warranted the court to depart from the general or usual costs rule.
19. In Ritter v Godfrey (supra), an eminent common law case on deprivation of costs, the plaintiff sued the defendant, a medical practitioner for damages in negligence when attending to his wife at natal delivery of their child. The defendant upon realising the proceeding was brought against him, wrote a letter to the plaintiff with insolent terms. The claim was dismissed; however, the court did not award costs against the defendant based on his own acrimonious conduct to the plaintiff. In justifying the refusal to award costs, Atkin Lord (at page 60) states:
    • “It is not easy to deduce from these authorities what the precise principles are that are to guide a judge in exercising his discretion over costs. And yet as the discretion is only to be exercised where there are materials upon which to exercise it, it seems important to ascertain the principles upon which a judge is to discern whether the necessary materials exist. In the case of a wholly successful defendant, in my opinion the judge must give the defendant costs unless there is evidence that the defendant (1) brought the litigation, or (2) has done something connected with the institution or conduct of the suit calculated to occasion unnecessary litigation and expense, or (3) has done some wrongful act in the course of the transaction of which the plaintiff complains.”
20. From my reading of those cases, their facts are somewhat different to the nature of the present proceeding. Further, I have noted that despite the court may depart from the general rule in awarding costs against the unsuccessful party, they did not state that for a case involving withdrawal of a proceeding due to inference with the witnesses by the Respondent or his agents, the Petitioner is automatically entitled to costs. What seemed to be deduced from those cases in terms of costs is that the party entitled to costs in the proceeding would be deprived or denied of the costs as a result of its own offensive or improper conduct. But whether that costs should be shifted or in other words, the other party is entitled to benefit from the costs as a result of the improper conduct of the successful party in the proceeding, remains unknown.
21. In the present proceeding, on overall consideration of the evidence before me, I accept that the Petitioner’s primary witnesses were given money by David Rex, Ethel Vokia and the female CDO working for the Respondent. I also accept that the giving of the money to these witnesses constitutes a serious interference with the proceeding that somehow resulted in the Petitioner making a firm decision to withdraw the proceeding. Be it from the Respondent or his agents, there is a vested interest, as demonstrated by David Rex, Ethel Vokia and the female CDO that they have tampered or meddled with the two witnesses who will be giving material evidence against the Respondent at the trial. Based on those reasons, it is my view that the Respondent shall not be entitled to costs which otherwise should be granted if no interference has been occasioned.
22. On the question of whether the Petitioner is entitled for costs, it is also my view that it would be improper and injudicious in the circumstances of this case for the court to allow the Petitioner to benefit from the withdrawal of the proceeding since the fault resulting in the withdrawal of the petition should also be apportioned to the two witnesses. I have reached this finding on the basis that they knew they are the witnesses for the Petitioner and will be giving material evidence against the Respondent at the trial. They have all the means at their disposals to avoid or even evade giving into the offer or the bribery made to them at those occasions. Unfortunately, they did not protest, but willingly accepted the money offered to them. Moreover, they did not return the money but used it for their own benefits.
23. These are serious allegations with punitive consequences should the matter enters the criminal prosecution. Based on the evidence, it appears that both parties seem to be having more or less the same share of the apple, that is, they willingly participated in the illicit transaction regarding the giving and the receiving of the money. To shift the costs to the Petitioner in view of the circumstance of this case would be erroneous for the obvious reason that it will set a wrong precedent by indirectly encouraging likeminded litigants to embark on similar litigations for financial gains in the event of a withdrawal of the matter. Premised on the above reasons, it is my view, that the costs of this proceeding will be that the parties to bear their own costs.

Orders of the Court

1. The application for leave to withdraw the Amended Election Petition is granted.
2. Consequently, the Amended Election Petition, filed by the Petitioner on 3^rd July 2024, is hereby withdrawn accordingly.
3. I certify to his Excellency the Governor General, the Speaker of the National Parliament of Solomon Islands and the Electoral Commission that Jamie Lency Vokia was the duly elected candidate of the North East Guadalcanal Constituency on the National General Election held on 17^th April 2024.
4. Parties to bear their own costs.

THE COURT
Hon. Justice Augustine S. Aulanga
PUISNE JUDGE