IN THE SUPREME COURT OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Election Petition Case No. 03 of 2012

BETWEEN:

LIVO BANI
Petitioner

AND:

HAVO MOLI
First Respondent

AND:

THE ELECTORAL COMMISSION OF VANUATU
Second Respondent

Coram: Mr Justice Oliver A. Saksak

Counsel: Mr Colin B. Leo for the Petitioner
Mr Wilson Iauma, Agent for Mr Tom R. Kapapa for First Respondent
Ms Florence William for the Second Respondent.

Dates of Hearing and Decision: 17th – 18th May 2013
Date of Judgment: 29th May 2013.

JUDGMENT

Introduction

1.	This judgment provides reasons for the decisions of the Court issued on 18th May 2013 following an oral pronouncement by the Court after hearing summaries of facts and evidence and oral submissions from all Counsel.

2.	The petitioner and the first respondent were amongst the candidates who stood for elections for the Malo/Aore Constituency. Elections were held throughout Vanuatu on 30th October 2012. After the elections the second respondent declared Havo Moli elected as Member of Parliament for the Malo/Aore Constituency. He was voted in with 815 votes. The Petitioner scored only 797 votes. There was a difference of 18 votes.

Petitioner's Complaints and Allegations

3.	The Petitioner filed a petition on 27 November 2012 claiming that – 

(a)	The first respondent was not validly elected because he and his agents had breached sections 45, 46, 47 and 61 (A), 61 (B) and 61 (C) of the Representation of the Peoples Act [Cap 146] (the Act). He alleged that after Parliament was dissolved, the first respondent had given VT10,000 to one Leo Tambu and VT12,000 to one Vevuro Leo. 

(b)	The second respondent had manifestly failed to discharge their electoral duties under the Act and had allowed all registration officers who were members of the first respondent's political party. These were named specifically as Fred Willy, Jingo Babetu, Matahu Vui and Ravo Harry. The petitioner further claimed that Fred Willy had conducted registration of electoral cards on 30 October 2012 and that he had registered electoral cards for one Urina Moli Leona and Jack Molisingi, but he never returned them until polling day.

(c)	On polling day at Nanuku Polling Station, Naomi Rasu as agent for the first respondent had coerced Jacob Valu Tamata not to vote for the petitioner.

(d)	At Avunatari and Nanuku Polling Stations, the agents for first respondent had assembled together and verbally demanded and influenced the general public to vote for the first respondent.

Reliefs Sought
4.	The petitioner sought the following reliefs – 

(a)	A declaration pursuant to Section 60 (1) of the Act that the election of the first respondent Mr Havo Moli was null and void.

(b)	A declaration pursuant to Section 61 (1) and (2) of the Act that the election of Mr Havo Moli was null and void.

(c)	In the alternative -

(i)	A declaration pursuant to Section 60 of the Act that the elections held on 30 October 2012 for the Malo/Aore Constituency was null and void.

(ii)	A declaration pursuant to Section 60 (1) (c) that the petitioner was duly elected to Parliament.

(iii)	An order directing the second respondent to conduct a by-election pursuant to Section 22 of the Act for the Malo/Aore Constituency.

Burden and Standard of Proof

5.	The petitioner had the burden of proof on a higher standard of proof on the balance of probabilities as was so held in the case of Taranban v. Boedoro (2004) VUSC 15 CC 149 of 2004 and endorsed in Lop v. Isaac [2009] VUSC 23.

Evidence By Petitioner

6.	The petitioner Livo Bani gave evidence himself and adduced further evidence in support of his case from 16 other witnesses namely: August Leo, Aka Liu, Leo Tambu, Moli Leo Tambu, Harry Leo Tambu, Votambu Vanua Fred, Esther John, Vanua Fred, Valu Tamata, Remy Pakoro, Maku William, Jole Boevilvil, Leovono Boevilvil, Moli Muemue Livo and Renold Pakoro. All these witnesses confirmed their sworn statements and were cross-examined by Counsel for the first and second respondents. All their statements were tendered in the order as listed from Exhibits P1 – P23 inclusive.

Evidence by the Respondents.

7.	In their defence denying all allegations made against them by the petitioner, the first and second respondents relied on the evidence of Etienne Kombe, Principal Electoral Officer (Exhibit SR2-1) and of Havo Moli, Naomi Rasu, Moli Mamiki, Lucy Molly, Willie Liu, Maxime Sewen, Vui Matahu, Bebeto Jingo, Sana Dehi, Jara Moli, John Solomon, and Moli Tulahi Tahemuele. All these witnesses were cross-examined by Mr Leo and their evidence by sworn statements were tendered as Exhibits SR2-1-13 inclusive.

The Issues

8.	The issues from the allegations and complaints of the petitioner appeared to the Court to be - 

(a)	Did the first respondent and/or his agents commit breaches of Sections 45, 46, 47, 61 A, 61 B and 61 C of the Act?

(b)	Did the first respondent have any corrupt intention in giving VT10,000 and VT12,000 to Leo Tambu and Vevuro Leo to induce or influence them to vote in his favour?

(c)	Did the second respondent and/or its representatives fail to discharge their duties?

(d)	Did Naomi Rasu have a corrupt intention to coerce Valu Tamata to vote for the first respondent?

(e)	Did the agents of the first respondent assemble at Nanuku and Avunatari polling stations and verbally demanded and influenced voters to vote for the first respondents?

The Relevant Legal Provisions

9.	(a) Section 45 of the Act provides for BRIBERY as follows:-

"(1)A person commits the offence of bribery – 

(a)	If he directly or indirectly by himself or by other person – 

(i)	Gives any money or procures any office to or for any voter or to or for any other person on behalf of any voter or to or for any other person in order to induce any voter to vote or refrain from voting;

(ii)	Corruptly does any such act on account of any voter having voted or refrained from voting; or

(iii)	Makes any such gift or procurement to or for any person in order to induce that person to procure, or endeavour to procure, the election of any candidate or the vote of any voter;

Or if upon or in consequence of any such gift or procurement he procures or engages, promises or endeavours to procure the election of any candidate or the vote of any voter;

(b)	If he advances or pays any money or causes any money to be paid to or to the use of any other person with the intent that such money or any part thereof shall be expended in bribery at any election, or knowingly pays any money or causes any money to be paid to any person in discharge or repayment of any money wholly or in part expended in bribery at any election;

(c)	If before or during an election he directly or indirectly, by himself or by any other person on his behalf, receives, agrees or contracts for any money, gift, loan or valuable consideration or any office, place or employment for himself or for any other person for voting or agreeing to vote or from refraining or agreeing to refrain from voting; 

(d)	If after an election he directly or indirectly by himself or by any other person on his behalf receives any money or valuable consideration on account of any person having voted or refrained from voting or having induced any other person to vote or refrain from voting.

(2)For the purposes of subsection (1) of this section – 

(a)	References to giving money include references to giving, lending, agreeing to give or lend, offering, promising and promising to procure or to endeavour to procure any money or valuable consideration; and

(b)	References to procuring office include references to giving, procuring, agreeing to give or procure, offering, promising and promising to procure or to endeavour to procure any office, place or employment."

(b)Section 46 of the Act provides for TREATING as follows:-

 A person commits the offence of treating – 

"(a)If he corruptly by himself of by any other person either before, during or after an election directly or indirectly gives or provides or pays wholly or in part the expenses of giving or providing any food, drink or entertainment to or for any person – 

(i)	For the purpose of corruptly influencing that person or any other person to vote or refrain from voting; or

(ii)	On account of that person or any other person having voted or refrained from voting or being about to vote or refrain from voting;

(b)If he corruptly accepts or takes food, drink or entertainment offered in the circumstances and for the purpose mentioned in paragraph (a) of this section.

(c)Section 47 of the Act provides for UNDUE INFLUENCE as follows:-

(a) he directly or indirectly by himself or by any other person on his behalf –

(i) makes use of or threatens to make use of any force, violence or restrain; or

 (ii) inflicts or threatens to inflict by himself or by any other person any temporal or spiritual injury, damage, harm or loss upon or against any person, in order to induce or compel that person to vote or refrain from voting, or on account of that person having voted or refrained from voting; or 

( b) by abduction, duress or any fraudulent device or contrivance he impedes or prevents the free exercise of the franchise of a voter, or thereby compels, induces or prevails upon a voter either to vote or to refrain from voting." 

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

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

(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 source 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 subarticle 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."

(e)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."

(f)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 in an area or village for the purposes of holding a campaign in that chiefs or persons village or area; or 

(b)	provide food, drink, 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."

Discussions And Considerations-

10.1 On the first issue under paragraph 8 (a) of this judgment. The petitioner's complaints and allegations about threats, bribery and double voting were of broad and general nature. The petitioner deposed to a very brief sworn statement on 27 November 2012 with six paragraphs. His sworn statement in response to Havo Moli, John Solomon and Tulahi Moli's evidence dated 2 April 2013 is much shorter with two paragraphs. In neither of these statements has the petitioner shown any actions of the first respondent and/or his agents which amounted to bribery contrary to section 45 of the Act, or actions which amounted to threats. The petitioner had no evidence in those statements showing who had double voted and where. In cross-examination by Ms William the petitioner conceded he had no complaints and allegations and/or evidence to show that the second respondent had failed any of its statutory duties.

10.2 Jole Boevilvil's statement dated 27 November 2012 and his response statement dated 2 April 2013 makes allegations of threats, bribery and double voting but no evidence of how much money or materials were involved. He made mistakes as to dates in his earlier statement and tried to rectify those dates in his second statement. That showed that his recollection was poor. He deposed to sharing of some private moneys to the executive members namely Tulahi Moli, Vui Matahu, Maxime Sewen, Tamata Viale and Bebetu Jingo. However in their evidence in support of the first respondent all these named executive members categorily denied receiving any moneys from the first respondent. The first respondent himself categorily denied giving out any moneys or gifts during 2012 for the purposes of influencing or inducing voters to vote for him. John Solomon and Willie Liu categorily denied this activity in their evidence in support of the first respondent. Sana Dehi denied any threats and Molimuemue Livo confirmed that position in his statement dated 27 November 2012. The Court believed the evidence given by witnesses in support of the first respondent as credible.

10.3 Esther John and Votambu Vanua Fred deposed to statements relating to John Solomon threatening them at the Vanwood House on 26 October 2012 in their statements dated 27 November 2012. John Solomon gave evidence categorily denying threats as alleged and explained what really happened in his evidence by sworn statement dated 25 February 2013. The Court believed his evidence as credible.

10.4. Applying the legal provisions in sections 45, 46 and 47 of the Act to the facts as supported by the evidence as examined above, the petitioner had not discharged the burden of proof that rested on him to show that (a) the first respondent and/or his agents had committed bribery, treating or undue influence and (b) the second respondent and their representatives had failed any or their statutory duties.

11.1. On the second issue at paragraph 8 (b) of this judgment. The petitioner's complaint was that the first respondent had corrupt intention by giving VT10,000 to Leo Tambu and VT12,000 to Vevuro Leo in September 2012. Leo Tambu deposed to a statement that he received these moneys on 17 September 2012 when he attended the first respondent at his office in Luganville. He was accompanied by his wife Vevuro Leo. She did not swear any statement to confirm her husband's evidence. He denied signing any receipt. And he denied being issued with any receipt. Leo Tambu's sons Harry Leo Tambu and Moli Leo Tambu deposed to statements dated 26 and 27 November 2012 stating they received VT1,000 each from their dad on 17 September 2012 and were told this was in return for their contribution to building the community warehouse built in 2009. In his re-examination, Leo Tambu clarified to the Court that the moneys received were in respect to the building of the warehouse.

11.2. Havo Moli, first respondent gave evidence and was cross-examined. He said that Leo Tambu and his wife Vevuro Leo attended his office on 1 September 2012. He agreed to giving VT10,000 to Leo Tambu and VT12,000 to Vevuro Leo. He said that both of them signed receipts dated 1/9/012. Those receipts are annexed as "HM1" and "HM2" to the statement dated 25 February 2013. In the receipt issued to Leo Tambu as "HM1" it states its purpose as "……..being for helping to carry sand for building construction." And in the receipt issued to Vevuro Leo it states "…being for cooking during the construction of the warehouse." He accepted the construction was done in 2009 and that it was well over 3 years. In cross-examination Mr. Leo asked Mr. Moli why he issued a receipt in September and his answer was:

"Mi issuem receipt long Septemba from we tufala istap komplem agensem mi. Neva bifo mi harem komplen ia."

11.3. The purpose for giving the total of VT22,000 to the Tambu's was very clearly stated in the receipts issued. And the date of receipt being 1 September 2012 is also clear. It is also clear that the signature on annexure "HM1" is Leo Tambu's signature. The Court therefore believed the evidence of Mr. Moli as credible. The cut-off date was 4 September 2012 when Parliament was dissolved. Pursuant to Section 61 A of the Act no cash donations or in kind could be made after 4 September 2012. It was clear to the Court that those cash donations were made earlier than the cut-off date. Therefore the Court was satisfied that there was no breach of Section 61 A by the first respondent. Harry Leo Tambu and Moli Leo Tambu's evidences were hearsay and lacked credibility.

11.4. Okis Leo deposed to receiving VT2,000 from Tamata Viale on behalf of his wife Naomi Leo. And Aka Liu deposed to receiving VT1,000 from the first respondent. Naomi Leo did not give any evidence to confirm that she received that VT2,000. Tamata Viale categorily denied giving this money to Okis Leo. Jole Boevilvil referred to this money in his statement dated 2 April 2013 at paragraph 5. But that statement is hearsay evidence and is therefore inadmissible. In relation to the VT1,000 given to Aka Liu, the first respondent accepted that he gave that money to Aka Liu but denied it was in October as alleged. Mr. Moli explained in cross-examination why he did so as follows:-

 "Q: Yu bin givim vt1,000 longhem (Aka Liu) long Oktoba 2012?
 A: Date ia hemi no true. Mi givim long gudfala heart long saed blong family from hemi lukaot long mi long Vila."

11.5. Mr. Leo for the Petitioner submitted orally to the Court to consider the term "intention of corruptly influencing….." used in Section 61 B of the Act. He argued that the vt1,000 given to Aka Liu by the first respondent fell outside the exceptions allowed on polling day in Section 61 B and during the campaign period in section 61 C. Mr. Leo omitted to include the words "without the" before "intention of corruptly influencing." The Court was satisfied that the giving of VT1,000 by the first respondent to Aka Liu fell within the exception in Section 61 B of the Act. It is abundantly clear that he gave VT1,000 "without the intention of corruptly influencing" Mr. Aka.

11.6. The terms "corruptly" and "corruptly influencing" are only used in section 45 (i)(a)(ii) and section 46 of the Act which provides for bribery and threatening. It is not used in section 47 of the Act however section 48(1) states that –

"The offences of personation, bribery, treating and undue influence are corrupt practices of the purposes of this Act."

11.7. These terms were correctly analysed and discussed by the learned Chief Justice in the Case of Peter Salemalo v. Paul Ren Tari and Electoral Commission Election Petition No. 30 1998 at pp 6-8 of the judgment. I endorse the views expressed by the Chief Justice. And I would reiterate that the term "corruptly" imports intentions. The term "corruptly" was defined in the Wallingford Case (1869) "does not mean wickedly, or 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."

11.8. The test therefore is whether Havo Moli by giving VT1,000 to Aka Liu knew it was wrong to do so but he did it anyway. From the explanation he gave during questioning in cross-examination by Mr. Leo, he gave with a good heart because Aka Liu helped him in his past and because Aka Liu is a very close family member or relative. As such, it could not be inferred that Havo Moli had corruptly influenced Aka Liu to vote in a certain way. His action therefore did not amount to bribery under section 45 (1)(a)(ii) or to treating under section 46 (a) (i) of the Act. The petitioner had the onus to show corrupt intention on the part of Havo Moli but did not discharge that burden. The first respondent had rebutted the inference that he gave Vt1,000 to Aka Liu with a corrupt intention therefore applying the ruling of the Chief Justice in Salemalo's Case the petitioner could not success in his allegations of breaches of sections 45, 46 and 61 B of the Act against Havo Moli.

12. On the third issue under paragraph 8(c) of this judgment, the petitioner complained that the second respondent and/or its representatives had failed to discharge their statutory duties during elections for the Malo/Aore constituency. This issue has been covered in discussions under paragraph 10.1 of this judgment. The petitioner conceded he had no allegations and/or evidence by himself or any other witnesses he called in his support. He did named Fred Willy, Urina Moli Leona and Jack Molisingi in paragraph 4 of his petition but failed to produce any evidence from them in order to discharge the burden of proof that rested on him. This issue therefore could not be proven and therefore failed.

13.1. The fourth issue under paragraph 8 (d) was whether Naomi Rasu had corrupt intention in coercing Valu Tamata to vote for the first respondent.

 The petitioner relied on the evidence of Valu Tamata and Maku William to prove this allegation. Valu Tamata's evidence is contained in his sworn statement dated 27 November 2012. He states that whilst in the polling room, Naomi Rasu stood at the Window and told him not to vote for Livo Bani but to vote for Havo Moli. He states that it was his first time voting and that he was frighten. He states that Maku William was his witness.

13.2. Maku William's evidence is contained in her sworn statement dated 27 November 2012. She states that she heard Naomi Rasu tell Valu Tamata not to put in the yellow photo but to put in the blue photo. She states that following that conversation, she saw Valu Tamata put the blue photo into the ballot box.

13.3. Naomi Rasu gave evidence. Her evidence is contained in her sworn statement dated 1st March 2013 which was tendered as exhibit SR1-2. She was cross-examined in relation to her statement. She categorically denied the allegations made by Valu Tamata. Her evidence was that it was Valu Tamata who asked her from the polling room as to how to vote. In response she said "just pick up any paper and drop it in the box." She said her father Moli Mamiki intervened and told her to move away from the window and she did. She said it was also her first time to vote.

13.4. Moli Mamiki gave evidence to deny that his daughter Naomi Rasu had told Valu Tamata to vote for Havo Moli. His evidence is contained in his statement dated 6 March 2013 tendered as exhibit SR1-3. In cross-examination, he was questioned about the polling room and he described the window as being high that it is impossible for people standing outside to even look to see what was happening inside the polling room.

13.5. Lucy Molly is Moli Mamiki's wife and Naomi Rasu's mother. Her evidence is contained in her statement dated 7 March 2013 tendered as exhibit SR 1-4. Her evidence was tendered without objection by Mr. Leo. She confirmed hearing Naomi Rasu speaking to Valu Tamata in response to his question to her. She confirmed hearing Naomi Rasu telling Valu to simply pick up any paper and drop it into the box. She confirmed that Moli Mamiki had intervened after hearing his daughter speaking to Valu by telling them to move away from where they were standing.

13.6. Naomi Rasu was firm in her position that she responded only to the question posed to her by Valu Tamata from inside the polling room. She was not swayed by Mr. Leo in cross-examination. The Court believed her version of the facts as the truth. The Court disbelieved Maku William's evidence that she saw from the outside that Valu Tamata voted for the first respondent by putting the blue photo into the ballot box. The Court believed Mr. Moli Mamiki's evidence that because the window was high, it was impossible to see what Valu Tamata was doing inside the polling room.

13.7. From the evidence as considered and analysed, the Court had reached the conclusion that the petitioner had not discharged the burden of proof that rested on him to show that Naomi Rasu had committed any act which amounted to undue influence under section 47 of the Act. 

 His petition therefore failed on that issue.

14.1. The fifth issue under paragraph 8(e) of the judgment is whether the agents of the first respondent assembled at Nanuku and Avunatari polling stations and verbally demanded and influenced voters to vote for the first respondent. The petitioner relied on the evidence of Renold Pakoro by sworn statement dated 2 April 2013, and of Molimuemue Livo by sworn statement dated 27 November 2012. 
 Both witnesses mentioned the names of Sana Dehi and Willie Liu and alleged that Sana Dehi had caused fear in voters lives on polling day and that Willie Liu had caused disturbances by speaking through the window with Sana Dehi.

14.2. Both Sana Dehi and Willie Liu deposed to sworn statements dated 25 February 2013 which were tendered as exhibits SR1-10 and SR1-5. Both witnesses categorically denied the allegations made against them. Willie Liu explained why he spoke with Sana Dehi and San Dehi confirmed that in his statement.

14.3. From the analysis of those evidences, the Court found no evidence of assembling together by the agents of the first respondent. Further, the Court found no evidence of demanding or influencing voters by the agents of the first respondent. As such, the Court reached the conclusion that the petitioner had not discharged his duty of proof to show that the first respondent and/or his agents had committed any acts which amounted to undue influence under section 47 of the Act. His petition therefore failed on this issue.

15.1. The petitioner adduced no evidence by himself or through witnesses showing that the first respondent had committed any breaches against sections 61 A and 61 C of the Act (as amended).

15.2. All the other evidence given by witnesses in support of the petitioner not referred to by the Court were either hearsay or irrelevant to the issues and therefore were inadmissible.

Conclusion
16.1. From the preceding discussions, considerations, findings and rulings, the Court reached the ultimate conclusion that the petition of the petitioner should fail and that he was not entitled to any reliefs sought in the petition.

16.2. Accordingly, the Court issued the Decision and Orders dated 18th May 2013. The Court hereby re-confirms those decisions, declarations and orders.

DATED at Luganville this 29th day of May 2013.

BY THE COURT

OLIVER A. SAKSAK
Judge