Tegavota v Bennett [1983] SBHC 19; [1983] SILR 34 (16 February 1983)

[1983] SILR 34

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 104 of 1983

TEGAVOTA

v

BENNETT

High Court of Solomon Islands
(Daly C.J.)
Civil Case No. 104 of 1982

16th February 1983

Election - qualification for candidate – “a person ordinarily residing” - sections 7 and 2 of Local Government Act.

Facts:

The respondent was a candidate for election to Honiara Town Council. He used two houses at the time of his nomination and during the period of the election, one inside the Council area one outside. He was elected. The Petitioner challenge the validity of the election on the basis that the Respondent was not qualified as he was not “a person ordinarily residing in the Council area” for the purposes of the Local Government Act sections 7 and 2.

Held:

1. per curiam, the burden of proof was for the Petitioner to prove his case on the balance of probabilities (following In re Moresby North East Parliamentary Election No.2 (1977) PNGLR 448).

2. Solomon Islands concepts of residence should be applied in general.

3. Following Fox v. Stirk (1970) 3 All E.R. 7, the question was, was there at the relevant time a considerable degree of permanence in the stay of the person subject to enquiry at the place where he is said to reside?

4. ‘Ordinarily’ following Levene v. I.R.C. [1928] UKHL 1; (1928) All E.R 746 at page 754 means “according to the way in which a man’s life is usually ordered”.

Applying these tests to the facts the Respondent was “a person ordinarily residing in the Council Area”.

Petition dismissed.

Cases also considered:

Saemala -v- Gatu (1980-1981) SILR 196
A.G. -v- Ziru & Others (Civil Case 73/1982)
Warrington Case (1869) 1 O’M and H 44
Daduwe v. Area (19791 PNGLR 160

Petitioner in person
For Respondent: A. Nori.

Daly CJ: This is an election Petition brought under Part VI of the Local Government (Election) Regulations.

On 19th November 1982 a bye election was held in Honiara for Ward 3 Rove/Lengakiki to elect a member to the Honiara Town Council. The Respondent, Peter Bennett, who had been nominated as a candidate for that ward on 21st October 1982, polled the greatest number of votes and was returned as the member.

The Petitioner was an unsuccessful candidate for the Ward. He now petitions on the basis that at the material time the Respondent was not qualified for election and seeks to have his election declared null and void. As far as the material time is concerned this court has indicated a view in Saemala v. Gatu (1980-1981) SILR 196 at page 207 and in A.G. v. Ziru and Others (Civil Case 73/1982) that the material time for assessment of qualification in the first instance is the time of nomination. Of course, it may be that a court faced with a situation where the nomination was valid at the time it was made might have to decide whether a ground of' disqualification intervening between nomination and election would have the effect of rendering the election of candidate void. But that is not the situation we have in this case as it is accepted that the same factual situation obtained at both the date of nomination and the date of election. I shall call the period between 19^th November 1982 and 21st October 1982, both dates inclusive, the election period.

The Petitioner submits that the Respondent was not during the election period within the requirements of section 9 of the Local Government Act (“the Act”). This provides: -

“Subject to the provision of section 10, a person shall be qualified for election as a member of council if he is entitled to be registered as a voter and has attained the age of twenty one years.”

Section 7 of the Act establishes the qualifications for registration as a voter for the purposes of council elections. The Petitioner relies upon (c) which restricts registration to a person who ‘is a person resident within the council area.’ Section 2 provides an interpretation of the words “person resident” as “in relation to the area of authority of a council, a person ordinarily residing in such area”.

The present Honiara Town Council was established by the Honiara Town Council Warrant 1982 (Legal Notice 44/1982) In that warrant the area of authority of the Council is said in clause 4 to “comprise all that area of land shown on plan number 1981 held in the office of the Commissioner of Lands.”

The Petitioner seeks to establish that during the election period the Respondent did not have the necessary residential qualification. Therefore the issue is, was the Respondent “a person ordinarily residing” in the area set out on plan number 1981 within that period?

The Petitioner having raised the matter it is for him to prove that the Respondent was not qualified to stand. The extent of that burden of proof was discussed in the Papua New Guinea case of In re Moresby North Parliamentary Election No.2 (1977) PNGLR 448 “the Moresby Case”. In that case the National Court of Justice was considering an election petition which claimed that the successful candidate of an election did not have the specified residential qualification. After reviewing authorities on the onus of proof Frost C.J. said at p. 450: -

“Accordingly, in a case such as the present where the issues are of real gravity, the Court should require clear and cogent proof so as to induce, on the balance of probabilities, an actual persuasion of the mind that the candidate did in fact lack the required qualifications.”

However that test was decided without reference to the words of Martin B. in the Warrington case (1869) 1 O’M and H 44 (as referred to in Schofield on Parliamentary Elections Edition at page 309). These words were:-

“I adhere to what Mr. Justice Willies said at Litchfield that a judge to upset an election ought to be satisfied beyond all doubt that the election was void and that the return of a member is a serious matter and not lightly to be set aside.”

However I have heard no argument on burden of proof and for this Petition I accept the test set out by Frost C.J in the Moresby Case.

Before returning to the words of the statute, I must, consider the facts which I find established. Clearly when one is dealing with questions of residence each case must in the final analysis depend on its own facts. When statutes words of wide import such as “ordinarily residing” then it an unwise court which seeks to give a definition of such applicable to all situations were it, indeed, possible to so.

The Respondent is a man of 34 years of age. He is married with 2 children. He is employed as a supervisor of stevedores by the Ports Authority and works at Point Cruz on the wharf. His father has purchased land at Kakabona Village and has a house there. It is not disputed that Kakabona Village is outside the area of the Honiara Town Council and that, therefore, if I found that Kakabona was the only place in which the Respondent was “ordinarily residing” during the election period, I must also find that he was not qualified for election.

The Respondent did, in fact, live at Kakabona from a date in 1975 or 1976 at the house of his parents. At that stage he was not married. He married in 1979 and continued thereafter to live with his parents at Kakabona.

In November 1981 the Respondent’s cousin the Hon. Richard Harper H.P. became a Government Minister and as such was allocated a house in Honiara. It is again not disputed that that house is within the area of Honiara Town Council. The Respondent’s evidence was that he moved to the house of the Minister at the end of November 1981 as that house was nearer his work and, further, that it was his intention to stay there until he was allocated a house by his employers, the Ports Authority. There is evidence that the Respondent has actively sought a house from his employer but that a house suitable for a person of his rank at the Ports Authority is not at present available.

The Minister confirmed that the Respondent had a room permanently reserved for him in his, the Minister’s house. The Respondent has put his own possessions in the room. His evidence was not quite as strong as the Respondent’s on the amount of time the Respondent spent in the house but he confirmed that the Respondent occasionally stopped in the house, sometimes with his wife and family, but mainly when his wife and family went to the West. There is also evidence that the Respondent is a constant visitor to his parent’s house in Kakabona. The Respondent accepts that in 1932 he would, indeed, visit his parents at weekends and eat with them in the week. The Hon. Minister and the Respondent both gave evidence that in the election period the Respondent was staying at the Minister’s house in town.

I must apply to those facts the questions of whether the Petitioner has satisfied me that the Respondent was not “ordinarily residing” at the Minister house in the election period.

As I have had the benefit of the submissions on those words, let me say something about them. First, the words are not technical terms and must be given the meaning to be assigned to them in every day English. Second, concepts of residence vary from country to country. In Solomon Islands, people retain ties and often houses in their home village, even though they might be employed and have other property available to them in a main centre in a province or in Honiara. Again there are also people who live more or less permanent at the houses of relatives who may have, in accordance with real property law, extremely flimsy rights to stay but in custom may have very strong entitlement. Clearly I must weigh the evidence 1 hear in this court against concepts such as these, rather than concepts evolved in other countries. Third, many cases (for example, the Moresby Case)involve consideration of legislation which imposes a requirement that a person been resident for a specified period of time in one area, the Act deals with residence over a very short period, in this case, just under one month.

The word “reside” has been considered in a number of cases. In one case an English Judge said: -

“the word “reside” is a familiar English word and is defined in the Oxford English Dictionary as meaning “to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in a particular place””

(Levene v. Inland Revenue Commissioners [1928] UKHL 1; (1928) All E.R. Rep 746 (“Levene”) Per Lord Cave L.C. at p. 749. This starting point has been adopted by courts subsequently (see Fox v. Stirk (1970) 3 All E.R. 7 (“Fox”); the Moresby Case; Daduwe v. Area (1979) PNGLR 160). Some judges have been disposed to go beyond the bare definition. In Fox Lord Denning M.R. evolved (at p. 12c) a test which can be phrased as, was there at the relevant time a considerable degree of permanence in the stay of the person subject to enquiry at the place in which he said to reside? Lord Widgery at page 13 said:-

“Some assumption of permanence, some degree of continuity, some expectation of continuity, is a vital factor which turns occupation into residence.”

Other judges have declined to attempt any definition of the word (Viscount Summer, Lord Warrington in Levene and Karminski L.J. in Fox) but have preferred to let the facts speak for themselves.

As regards the use of epithet “ordinarily” Lord Warrington found it difficult, in common with the other learned law Lords in Levene to give it a meaning which added effect to “resident”. He went on (at p. 754): -

“If it has any definite meaning I should say it means according to the way in which a man’s life is usually ordered.”

Looking at the facts of the present case, I find that the Respondent was in the election period staying in the Minister’s house, that is, that he was factually in residence there. Was there, in the Solomon Islands context, an assumption of permanence about that residence? “Was his residence there according to the way in which his life was usually ordered” The room he used was permanently allotted to him and he had his possessions there. He shared in the expenses of the house. The house was more convenient to his work which was in Honiara. He had before the election period used the room for a year both with his family and without. I find that his intention at that time was to find a house for himself in Honiara and that, until he did, he would continue to use the room provided by the Minister as his base although he might spend weekends and other periods elsewhere. These facts in themselves are, in my judgment, sufficient to establish that the residence of the Respondent in Honiara during the election period was sufficient for him to be described as “a person resident within the council area” for the purposes of section 7 of the Act and that therefore he was qualified to stand for election.

In deference to counsel’s argument let me add one word about constructive residence. As I find that the Respondent was factually resident in Honiara in the election period it is unnecessary for me to consider the doctrine in detail in this case. It can only be material when a person claims that he is resident in law at a relevant time in a place in which he is not factually in residence at the relevant time. However it could well be found to be a most useful doctrine in Solomon Islands as it was found to be in Papua New Guinea (see the Moresby Case at p. 454). But consideration of the doctrine must wait for another case.

I therefore dismiss the Petition and certify to the Hon. Minister for Home Affairs and National Development that the Respondent Peter Bennett was duly elected member of the Honiara Town Council for the Rove/Lengakiki Ward (Ward 3) at an election held on 19th November, 1982.

Certificate accordingly.