Saemala v Gatu [1981] SBHC 7; [1980-1981] SILR 196 (7 August 1981)

[1980-1981] SILR 196

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 50 of 1981

SAEMALA

v

GATU

High Court of Solomon Islands
(Daly CJ)
Civil Case No. 50 of 1981

7th August, 1981

Election Petition - qualification for election - Sections 49, 144, and 145 of the Constitution, meaning of public officer - when a "public officer" is "on leave of absence without salary" - date at which qualification to be assessed.

Facts:

A bye-election for the National Parliament took place on 8th May, 1981. The Respondent was elected. The Petitioner brought an election petition claiming that at the date of nomination and election the Respondent was disqualified pursuant to Section 49 as he was holding a public office. On the 2nd April 1981 the Respondent was nominated as a candidate. The period for nomination ended on 10th April 1981. On 9th April the Respondent applied for leave without pay as from 24th April 1981 to the Secretary for Public Service. No reply was received to the application. The Respondent received pay as a public officer up to the end of April.

Held:

1. As the Respondent sought to cease to be a public officer by becoming an officer on leave without salary under S. 144 as read with section 145 of the Constitution it was necessary for him to comply with the appropriate General Orders.

2. The General Orders required that permission be given by the Secretary for the Public Service before an officer became - an officer on leave. As such permission was never given then the Respondent remained a public officer throughout the election process. He was therefore not qualified for election under section 49 of the Constitution.

3. Where a candidate is found to be disqualified the election is void in accordance with the proviso to section 82 (3) of the National Parliament Electoral Provisions Act, 1980. Therefore a new election must be held.

4. Obiter, the relevant date for deciding on qualification or disqualification was the date of nomination (Harford v. Linskey [1899] UKLawRpKQB 72; (1899) 1 QB 852 considered)

Case also referred to:

Hobbs v. Morey [1903] UKLawRpKQB 185; (1904) 1 KB 74.

Petitioner in person
For Respondent: G. Strang

Daly C.J.: On the 8th May 1981 polling took place in a bye - election for West Honiara Electoral District. After the votes were counted Mr Gordon Billy Gatu was declared elected with 681 votes; the next candidate was Francis J. Saemala with 290 votes and a number of other candidates received lesser numbers of votes. On the 26th June 1981 Francis J. Saemala (the Petitioner) filed in the High Court a petition praying that the election of Gordon Billy Gatu (the Respondent) be declared void by the court in exercise of the powers conferred on the court by section 52 (1) (a) of the Constitution and section 80(1) of the National Parliament Electoral Provision Act 1980 ("the Act").

The basis of the petition is that at the relevant time the Respondent was not qualified for election as a member of the National Parliament. It is also submitted that, in addition, (or perhaps in the alternative) the nomination of the Respondent was invalid. The Petitioner who presented his own case, if I might say so, with ability and clarity, and counsel for the Respondent and Attorney General have been of great assistance to me in this case. I record my gratitude.

First, I must examine the facts which give rise to the contentions in this case before considering the interesting and important questions of law which arise from them.

The Respondent was in the early part of 1981 a Senior Social Development Officer in the Ministry of Youth and Cultural Affairs. On the 20th Feb. 1981 as result of due application and approval he went on his fully paid annual leave for the year 1981. He returned to the Ministry from that leave on 13th April 1981, the leave having been extended in circumstances with which I am not concerned. The records of payment would appear to show that the Respondent received pay until the end of April 1981 as an officer of the Ministry; that from 1st to 7th May 1981 he was unpaid and as from 8th May 1981 he received payment as a Member of Parliament. The Respondent says he received pay, so far as he was aware, up to 24th April 1981 but I find that the records produced by the Chief Accountant are to be preferred to the rather vague recollections of the Respondent.

During the course of this paid leave the Respondent formed the intention to complete and present a nomination paper to enter himself as a candidate for the West Honiara Bye election. On 2nd April 1981 the Respondent completed and signed such a paper which is in the form required by the Third Schedule to the Act. Paragraph 2 of the Form reads as follows (so far as is relevant):

"I also hereby state that I am qualified, and not disqualified for election to the National Parliament in accordance with the law now in force in the Solomon Islands, that is to say:

(d) I am not holding, or acting in, any public office,"

On the form the Respondent described himself as "Senior Social Development Officer."

The prescribed period for presentation of nomination papers was from 28th March 1981 to 10th April 1981 at 4.0Op.m. On 3rd April 1981 the Respondent presented his paper to Mr Robert Pongi, the Returning Officer, whose duty it was to received such papers. Mr Pongi asked the Respondent about his status as a public officer and the Respondent replied "I am dealing with that".

The Returning Officer then accepted the nomination paper and marked it as valid.

On the 9th April 1981 the Respondent prepared a letter. As it is important I shall set it out in full:

Social Development Division
Ministry of Youth & Cultural Affairs.

HONIARA

9/4/81

Secretary to Public Service

HONIARA

Thru: Permanent Secretary

Ministry of Youth & Cultural Affairs HONIARA

Dear Sir,

BYE ELECTION 1981

I wish to inform that I am standing for the above coming election and would like to inform that I wish to apply for leave without pay as from the 24/4/81 to 8/5/81.

Should I loose in the election, I would like to resume duties on the 11/5/81.

Yours faithfully

(G B Gatu)

On the same day the Respondent took this letter to his Ministry. He put the original on the desk of his Permanent Secretary for endorsement and a copy was handed to the Personnel officer of the Ministry for his records. The Permanent Secretary initial - led the original as having been seen by him. Later the same day in the presence of the Permanent Secretary the original letter was taken back by the Respondent. The Respondent then took the letter to the office of the Secretary for the Public Service where, on being told that the Secretary for the Public Service was busy, the Respondent left the original with the Personal Secretary to the Secretary for the Public Service. The Respondent told her that the letter was urgent. All this happened on the 9th April, 1981. Closing time for nominations was 10th April 1981. Mr Gatu said in cross - examination that the urgency, as he saw it, was because he had to obtain permission from the Secretary for Public Service by the close of nominations.

No reply was received to that letter. The evidence of the Secretary for the Public Service was that he was not aware of that letter until after the election and, indeed, received the original only on the 28th May, 1981. His evidence was that at no time in 1981 was the Respondent given permission to take leave of absence without pay.

As I have said, on 8th May 1981 the polling took place. On 11th May 1981 the Respondent wrote to the Secretary for the Public Service tendering his resignation following his election. On 14th May the Secretary replied pointing out that as far as he was aware the Respondent had not obtained leave of absence without pay and invited him to forward the documents granting such leave should they exist. No reply was made by the Respondent to that invitation.

Those being the facts I now turn to the law which applies to them. First the supreme law of Solomon Islands, the Constitution. This provides in section 49 certain disqualification from election as a Member of Parliament and it reads (again so far as is relevant) as follows: -

"49 (1) No person shall be qualified for election as a Member of Parliament who ......

(b) holds, or is acting in, any public office;"

It will be observed that the form of words used is similar to the words used on the nomination paper although there is one point at which there is said to be an important divergence which I must consider later in this judgment.

The Constitution defines the word "public office" in section 144(1) as follows: -

""Public office" means, subject to the provision of the next following section, an office of emolument in the public service;"

Section 145 (2) (a) provides: -

"For the purposes of this Constitution a person shall not be treated as holding, or acting in, a public office by reason only that he -

(a) is on leave of absence without salary from a public office;"

Pausing there, it is not disputed that, as Senior Social Development Officer, the Respondent held a public office for the purposes of section 49 and 144 (1) of the Constitution and that he held such public office upon the day on which he signed his nomination paper (that is 2nd April 1981) and on the day upon which he presented it (3rd April 1981). What is submitted on his behalf is that at some subsequent stage before polling day on 8th May 1981 he became entitled to rely upon the words of section 145(2) (a) quoted above; in short, that at that stage, whenever it was, he went on leave of absence without salary from his public office.

The submission is of fundamental importance to this Petition because if the Respondent did not at any stage become a person on leave of absence without salary from a public office then he must have remained throughout a holder of a public office which would mean, whatever may be the date for assessing qualification or disqualification, he was on any view disqualified for election under section 49(1) (b) of the Constitution.

First then I must consider how a public officer becomes a person on leave of absence without salary from a public office. The relationship between the Solomon Islands Government and its employees is governed by General Orders. Chapter J section 1 deals with the general principles relating to leave and makes it clear that leave "unless otherwise stated will be granted by the Government at its discretion." Chapter C section 5 paragraph 504 deals with leave for the purpose of standing for election to the National Legislature. Sub paragraph 2 reads:

"an officer wishing to stand for election to (the National Parliament) is required to apply for permission to do so in writing to the Secretary for the Public Service through his Responsible officer."

(The subparagraph then sets out certain duties of the Responsible officer).

Sub paragraph 3 provides: -

"If an officer.... is given permission to stand, he will....be granted leave of absence without salary from office with effect from the day that his nomination paper is signed to the day prior to the date of the declaration of the results of the election."

It has been suggested that these provisions are confusing; I do not agree. What stands out clearly is that permission must be sought and must be granted before a person becomes entitled to say that he is on leave of absence without salary from his office. Such a provision accords with common sense in that a person can only cease to attend to his undertaken employment as a person on leave with the consent of his employer. The very words "leave of absence" to my mind makes it obvious that the consent or "leave" of the employer is essential to the process.

In this case application was made on the 9th April 1981 to the Secretary for Public Service through the responsible officer, the Permanent Secretary, Ministry of Youth and Cultural Affairs. But the application was never granted. How that came about is not a matter upon which I have heard sufficient evidence to form a view. Nor for present purposes is it necessary for me to do so. Counsel sought to submit that the fact that the Respondent had done all that was required of him combined with the absence of a reply and the fact that at some stage prior to election, payments to him in his public office appeared to have ceased, gives rise to an implication that the appropriate permission had been granted. On this basis it is submitted that as from the 24th April (the date referred to in the letter) the Respondent should be regarded as being on leave of absence without salary. With all respect to counsel, I find the submission unconvincing.

In the first place it would import into the relationship between the Government and its employees a concept that has met with disapproval in the general law relating to contractual relationships, that is, that silence can be taken to be consent (see Chitty on Contracts General Principles 24th Edition para.77 et seq.). Generally I consider that the relationship between Government and its employees should be regarded as on an analogous footing basis to that of employers and employees else where and that, in the absence of express agreement, the general contractual incidents of the law relating to employer and employee should apply. In this case, however, in view of the terms of Chapter C Section 5 paragraph 504.3 of General Orders which refers to "If an officer....is given permission to stand" there seems to me good ground for saying on that basis alone that express permission must be given.

In the second place were I to accept counsel’s point that consent may be implied in certain circumstances, the court would be left with the awkward if not impossible task of deciding (a) whether such consent could be implied and (b) the moment at which such consent should be taken to have existed. For example in this case could the consent be taken to have existed as at 10th April, 1981? Presumably not as payment continued thereafter. The same would apply to the date April 24th. As at 30th April, 1981? If so can the conduct of the paying authority be said to be binding on the employing authority? These and other questions of fact would arise. To decide such an important matter as constitutional status on such considerations would be unsatisfactory to say the least. This state of affairs reinforces my view that it is only an express permission that can have the effect of changing that status. I should add one more word in view of the evidence given by the Respondent and the argument touched upon by counsel. That is that the view which a candidate himself takes of the requirements cannot be of much help in determining whether the law has been complied with. Mr Gatu may have been in ignorance of, or mistaken about, the requirements of the law. In the circumstances this may have been regrettable. But on the view I take of the case it is not a matter which can assist the Respondent.

Thus I must find that in the absence of express permission from the Secretary for the Public Service as required by Chapter C section 5 paragraph 504 of General Orders, the Respondent did not at any stage in April and May 1981 become a person on leave of absence without salary from a public office. He therefore remained a public officer throughout the election process thus find that he was a person who was not qualified for election by virtue of section 49(1)(a) of the Constitution and I must set aside his election as member of the National Parliament for the West Honiara Electoral District.

This in itself is enough to dispose of the Petition, leaving aside for one moment the form which the certificate of this court should take. Another matter has, however been argued before me and I have been invited to say something about it for the guidance of those concerned in future elections. As matters of some practical importance do arise from the point, I am prepared to offer my views upon it on the basis that, as what I am now about to say is unnecessary to the decision I make, it is of persuasive authority only.

The matter can be expressed in this way: In considering questions of whether a person is qualified or disqualified for election to the National Parliament is the vital time for assessment of qualification or disqualification the date of nomination or the date when votes are cast? To turn again to the facts of this case the Respondent was nominated on 3rd April 1981 when on any view he was a public officer. What would have been the position if he had applied for, and been granted leave of absence without salary between that date and before the day upon which votes were recorded that is 8th May, 1981? Would he have been qualified for election? The Petitioner has argued that he would not be so qualified. The Respondent argues that he would be qualified.

I have already referred to section 49 of the Constitution which provides for certain disqualifications. In addition section 48 provides the basic qualifications. I should also refer to section 47(1) which provides:

"Parliament shall consist of persons elected in accordance with the provision of this Constitution and, subject thereto, in such manner as may be prescribed"

"Prescribed" mean prescribed by a law and in this case the law is the National Parliament Electoral Provisions Act, 1980.

There are a number of sections in that Act which deal with the election process. Section 25 deals with nomination papers. Subsection (1) of that section requires the paper to be in the form set out in the Third Schedule (from which I have already quoted) and expressly requires "a certification by the candidate that he is willing and qualified to stand for election" (para. (c)).

Section 27 deals with the validity of nominations and gives power to the Returning Officer to hold a nomination paper invalid. Two grounds upon which he may do so are:

(a) that the candidate is not qualified for election under section 48 of the Constitution; or

(b) that the candidate is disqualified for election under section 49 of the Constitution. (Section 7(2)).

The decision of the Returning Officer as to whether the nomination is valid is final and may only be questioned on an election Petition. (Section 27(3)).

All these requirements are couched in the present tense in that the candidate declares "I am not holding any office" "and the Returning Officer deals with whether a candidate is not qualified". While one must accept that there are practical limitations on the extent to which a Returning Officer can be expected to investigate the details on a nomination paper, it seem obvious that he must in so doing deal with the circumstances that obtain at the moment of presentation of the paper. Otherwise he is dealing in some cases, such as the present, with matters which amount to speculation.

It is argued by counsel for respondent on the other hand that the Constitution speaks of qualification "for election" which would appear to refer to the date when election takes place. For this purpose counsel says that "election" takes place upon the day when votes are recorded. He also refers to the proviso to section 82(3) of the Act which refers to a candidate who "was not qualified or was disqualified at the time of his election". If the contention of counsel is correct, that is, that the Constitution makes the vital date when votes are cast then it would, of course, be necessary to construe the Act accordingly as any law must be "subject to the provisions of (the) Constitution" (section 59 (1) of the Constitution).

I do not however consider the terms of the Constitution are of sufficient clarity to make the interpretation urged by counsel the correct one. The words "for election" in my view can be read as dealing with the election process as prescribed in accordance with section 47(1) of the Constitution. I see no good reason for present purposes to fix upon one moment in the election process and say that it is at that moment election takes place. Indeed why pick the day upon which votes are recorded in preference to the day upon which votes are counted or the day upon which the result is declared? It seems to me that the only proper course insofar as qualification or disqualification is concerned is to look at the intent of the Constitution and the Act and to give effect to it. The intent of those provisions is, in my judgment, to provide that a person who enters upon the election process is at that stage qualified and not disqualified for election by that process. A candidate enters upon this process upon his delivery of the nomination paper whereby he submits himself for election (see section 25(1)). To hold otherwise would be to say that a candidate may make a declaration which was wrong at the time he made it and thus mislead the Returning Officer (and in due course the electorate) into accepting him as a proper candidate with the necessary qualifications despite the fact that something more remains to be done to complete those qualifications. If, what remains to be done, never is done then the Returning Officer, the voters, and the nation would be left with a situation in which, as here, a re-election must held. If matters are completed the fact remains that the process of election was commenced by the successful candidate making, an untrue declaration. I cannot accept that it is intended that elections should proceed on this kind of uncertain basis.

It is suggested to me that the situation where an untrue declaration becomes true subsequently and prior to voting day could be cured by the operation of section 9 of the Act. This provides: -

"No election shall be invalid by reason of non - compliance with this Act if it appears that the election was conducted in accordance with the principles of this Act and that the non - compliance did not affect the result of the election."

I do not, however, consider that that section can be applied to cure what amounts to a failure by a candidate to make a true declaration as required by the Act.

As I have indicated the question of qualification and disqualification is a matter which the Act expressly ties in with the nomination paper and therefore this connection between nomination and qualification becomes a "principle" of the Act. I am not, therefore, in a position to say that a non - compliance that involves an untrue declaration as to qualification enables election to be conducted "in accordance with the principles of (the) Act". I prefer, in the absence of evidence, not to say anything about the question of whether it would "affect the result of election."

Of the authorities to which I have been referred as precedents only one has been of assistance to me on this point. This is Harford v. Linskey [1899] UKLawRpKQB 72; (1899) 1 QB 852. In that case Harford was duly nominated on Oct. 24 for election as a councillor. At that date Harford had an interest in a contract with the Council which would disqualify him. However on Oct 23 or Oct 24 prior to nomination Harford had attempted to get rid of the contract. But he could only do so successfully with the consent of the Clerk to the Council which had not been given. On Oct 25 the Lord Mayor (as, as it were, Returning Officer) held the nomination of Harford to be invalid on the basis of the contract. Thus we have a situation similar to the present case in that at the date of nomination Harford was disqualified but that he had done everything he could to get rid of the disqualification. There was no reason to think he would not, succeed in doing so before polling day (1st November).

The election court was subsequently asked if the decision of the Lord Mayor that Harford was disqualified was correct. Wright J. said on this question at page 858: -

"In the absence of any guide, we think it safest to hold that in cases of elections under the Municipal Corporations Acts a person, who at the time of nomination is disqualified for election in the manner in which this petitioner was disqualified, is disqualified also for nomination. The nomination is for this purpose an essential part of the election, and if there are no competitors it of itself constitutes the election by virtue of the express words of s. 56. A different construction might produce much confusion. On the nomination day no one could know whether the persons nominated will at the poll be effective candidates or not. It is true that in the case put the disqualification may be removed before the election is completed; but what is to be the effect if the disqualification continues until the poll begins, or until the middle of the polling day, or until the close of the poll? Will votes given before the removal of the disqualification be valid? If not, how is the number of them to be ascertained? It seems to us unreasonable to hold that the Act means to leave the matter in such a state of uncertainty, and for these reasons we think that this petitioner was disqualified for nomination or election. It is not necessary to say whether the same conclusion would follow if the disqualification was such as must necessarily cease at a time between nomination and poll, as for instance, if a person were nominated on the last day of his minority for a poll to take place on a future day."

Of course this is a case on a different Act but it seems to me that the reasoning of the learned judge is entirely apt to the present situation. Indeed the express wording of the Solomon Islands Act, and the declaration made under it, strengthen the view that, in our case, the Act clearly contemplates that disqualification at the time of nomination means that the nomination is invalid and the candidate in respect of whom the nomination paper is delivered cannot take part in the election process in such a way as to lead to his valid election.

In my judgment, then qualification and disqualification must be adjudged at the date of nomination of the candidate and, if a candidate is not qualified or is disqualified at that date, he cannot take part in the election process in such a way as to enable his election to stand should he be declared elected.

The only question which remains is the nature of the certificate this court should deliver to His Excellency the Governor - General in accordance with section 82(3) of the Act. At first the Petitioner sought to claim the seat. He argued that, as the Respondent was disqualified and he had the next highest number of votes, the Petitioner was entitled to be declared elected. He based his argument upon the wording of Form 2 to the Election Petition Rules 1976 although the terms of that Form seemed not to be supported by the terms of the Rules themselves. These Rules are also subject to the modification, adaptation, qualifications and exceptions as may be necessary to bring them into conformity with the Act by virtue of section 85(2) of that Act.

Thus unless the Petitioner could point to some support from the Act, his argument based upon a Form in the Rules was not a strong one. The Act however would appear to be against such an argument. The proviso to section 82(3) is as follows: -

"Provided that where the Court finds that any candidate who has been declared to be elected was not qualified or was disqualified at the time of his election, the court shall determine the election to be void."

The English Law, upon which the Act is based, enables a candidate who came second to claim a seat of a disqualified candidate if votes for the latter are "thrown away;" that is if the electors have notice of the disqualification of the candidate and nevertheless choose to vote for him (see Hobbs v. Morey [1903] UKLawRpKQB 185; (1904) 1 KB 74). However the proviso to section 82(3) would seem to me to restrict the power of this court to award the seat to a candidate other than the candidate who polled the most votes even further by providing that, whether votes could be taken as thrown away or not, election of a disqualified candidate obliges the court to declare the election as void. This proviso, in my judgment, requires this court to declare the whole election void and not just the election of the disqualified candidate. The result of so doing is that a new election must be held.

As indicated during the course of argument there is no prayer in the Petition for this court to disqualify the Respondent from that election. I should also make it clear that, on the basis of what has been established in this court, there is no ground upon which this court has power to declare that the Respondent shall be automatically disqualified for election. It is, if he chooses to seek nomination, for the Respondent to bring himself within the terms of the law in order to be qualified or to be not disqualified. Whether he does so or not is a matter for him.

This Court will certify in the following terms to His Excellency the Governor - General:

To His Excellency the Governor - General of Solomon Islands Certificate by the High Court of Solomon Islands under section 82(3) of the National Parliament Electoral Provision Act 1980

WHEREAS this Honourable Court having on the 29th and 30th days July 1981 and 7th day of August 1981 heard and determined the Petition of Francis J. Saemala praying that the election of Gordon Billy Gatu as member of the National Parliament for the West Honiara Electoral District on the 8th day of May 1981 be declared void.

NOW THEREFORE it is hereby CERTIFIED that the determination of this Honourable Court is that the said election, was, void and that a new election be held to elect a member of the National Parliament for the said West Honiara Electoral District. Costs: The Respondent must pay the Petitioners costs of this Petition.

Given this 7th day of August under my hand and the seal of the High Court of Solomon Islands.