Fa'asifoabae v Attorney General [1985] SBHC 10; [1985-1986] SILR 74 (26 June 1985)

1985-1986 SILR 74

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 63 of 1985

FA’ASIFOABAE

v

ATTORNEY GENERAL

High Court of Solomon Islands
(Wood C.J.)
Civil Case No. 63 of 1985

19 June 1985 at Honiara
Judgment: 26 June 1985

Originating Summons for declaration that duly elected and for determination of questions - National Parliament Electoral Provisions Act 1980 - whether candidate deemed elected upon declaration by Returning Officer under s.54(1) - whether election petition only way to challenge validity of election - whether following s.54(1) declaration action as specified in s.56(1) and (2) becomes obligatory - whether election may be deferred under s.64(1).

Facts:

The plaintiff brought this originating summons for a declaration that he was the duly elected National Parliament Member for the East Kwaio Constituency and for the determination of the following questions, inter alia,:-

(1) is a candidate an elected member following a declaration to that effect by the Returning Officer pursuant to s.54(1) of the National Parliament Electoral Provisions Act 1980;

(2) is the only way to challenge the validity of an election by election petition;

(3) following a declaration under s.54(1) of the Act are the Returning Officer and Governor-General obliged to act as specified in s.56(1) and (2) of the Act; and

(4) having deferred the election once did the Electoral Commission have the power to defer it again under s.64(1) of the Act.

The general election was held on 24 October, 1984, but the Electoral Commission deferred the election in the East Kwaio Constituency pursuant to s.64(1) of the Act to 14 November 1984. As a result of threats from the Kwaio Fadanga faction, only five of the eight polling stations in the Constituency opened on 14 November 1984. The plaintiff received a majority of the votes cast and was declared by the Returning Officer pursuant s.54(1) of the Act to have been duly elected. S.56 of the Act, however, was not complied with and the plaintiff was prevented by the Speaker from taking his seat.

The plaintiff argued that once a candidate is declared elected under s.54(1) of the Act he is elected and the Electoral Commission have no power to declare his election void. The result can be questioned only by way of an election petition.

The defendant argued that the declaration under s.54(1) was made in error because there was no election, three polling stations never having been opened, and that the Commission, by their power to defer part of an election under s.64(1), still could hold an election for the three remaining stations.

Held:

1. The power of the Electoral Commission under s.64(1) of the Act to defer part of an election must be exercised within fourteen days of the date originally appointed for the election. Accordingly, it was no longer open to the Commission to hold an election for the three unopened polling stations.

2. There was an election and the Returning Officer had no discretion not to declare the plaintiff to have been elected or to declare the election void.

3. The procedures set forth in s.56 of the Act, that is, to notify the successful candidate and publish the results, are mandatory and procedural.

4. That the procedures set forth in s.56 of the Act were not followed did not invalidate the election. The only way to challenge the validity of an election, however, is by way of an election petition brought under s.80(1) of the Act.

Accordingly, the declaration sought was declined.

No cases considered.

Kenneth Brown for the Plaintiff
Francis Mwanesalua for the Defendant

Wood CJ: This matter before the Court has been brought by the plaintiff by way of originating summons for a declaration that he is the duly elected Member of the National Parliament for the East Kwaio Constituency and for the determination of the following questions:-

(1) is a candidate the elected Member of the National Parliament following a declaration to that effect by the relevant Returning Officer pursuant to s.54(1) of the National Parliament Electoral Provisions Act 1980 (hereinafter called the Act);

(2) if the answer to question 1 is no at what date does a candidate become a duly elected member of the National Parliament;

(3) if the answer to question 1 is yes is the only way that the validity of the election be challenged by election petition to the High Court;

(4) following such a declaration as stated in question 1 hereof are the Returning Officer and His Excellency the Governor-General obliged in law to act as specified in s.56(1) and (2) of the Act;

(5) if the answer to question 1 is no are the Electoral Commission in breach of the provisions of the Act relating to the holding of an election in East Kwaio Constituency by failing to appoint a date for a general election in that constituency and/or by deferring the election in that constituency;

(6) if the answer to question 1 is no have the Electoral Commission, having already deferred the East Kwaio general election on one previous occasion, any power to defer the same again and if so are they at present failing to comply with s.64(1) of the Act by not directing the Returning Officer to appoint a new date for the said election.

The facts in this case are not in issue and may be summarised as follows.

The plaintiff was the United Party candidate for the general election held on October 24, 1984. In the case of the East Kwaio Constituency the Electoral Commission deferred the election in terms of s.64(1) of the National Parliament Electoral Provisions Act 1980 (hereinafter referred to as the “Act”). A new date was prescribed for the election in East Kwaio which was November 14, 1984. It appears to be common knowledge that a certain faction known as the Kwaio Fadanga in East Kwaio were opposed to the elections and had threatened the polling station officials and the electorate. As a result of these threats only five of the eight polling stations opened on November 14, 1984 and at one of these, although the polling station opened, no one cast a vote. At the remaining four polling stations the plaintiff obtained 221 votes and his four rivals polled 29, 11, 3 and 1 votes respectively. The counting of votes was conducted at Atori Sub-station, East Malaita and the Returning Officer made a declaration in terms of s.54(1) of the Act that the plaintiff was duly elected as member for the East Kwaio constituency. However s.56 of the Act was never complied with and the plaintiff was prevented from taking his seat by the Honourable Speaker. Since then no action has been taken by the Attorney General or the plaintiff until now and no election petition has been presented to this Court.

The learned Attorney-General’s submission is that although the Returning Officer’s declaration was made in terms of s.54(1) of the Act the declaration was made in error because there was in fact no election. There was no election because three polling stations did not open on polling day. Mr Brown’s case is that once the Returning Officer made the declaration that the plaintiff was elected he became the member for the East Kwaio Constituency and that although it is obvious that the election were not conducted fully in accordance with the law any question as to the validity of the election can only be heard by this Court by way of petition in terms of ss.80-84 inclusive of the Act. The Electoral Commission has no power to declare an election null and void. The learned Attorney-General’s reply to that was that the Electoral Commission had power to defer part of an election and that it was still open to the Commission to hold an election for the three polling stations which did not open on November 14, 1984.

I will deal with this point first. S. 64(1) of the Act reads as follows:-

“(1) Notwithstanding anything to the contrary contained in this Act, where the Commission is satisfied that by reason of flood or storm or any other cause whatsoever, whether of the like nature or otherwise, it has not been or will not be possible to carry out any part of an election or to comply with any of the provisions of this Act relating to time, throughout the electoral constituency or any ward thereof, it may within fourteen days of the date originally appointed for that part of the election by notice, appoint or direct the Returning Officer to appoint a new date for such part and for any subsequent part of the election as may be necessary.”

In terms of s.74 of the Constitution and s.23 of the Act the Governor-General appointed October 24, 1984 as the date for holding the election. This date was deferred by the Electoral Commission to November 14, 1984 under s.64(1) of the Act quoted above. The power contained in s.64(1) is limited to fourteen days with reference to the date appointed by the Governor-General and I would therefore agree with Mr Brown that the Commission has no power now to invoke the provisions of this section.

I will now attempt to state what I think should have happened in this case. Leaving aside for the moment the grounds for avoiding the election there can be no doubt there was an election. Five of the polling stations opened and at four of them 265 registered voters cast their votes. After the polls were closed the ballot papers were counted and the Returning Officer declared the plaintiff to have been elected. The Returning Officer had no discretion not to do so or to challenge the validity of the election. The provisions of s.56 of the Act are mandatory and procedural.

The fact that these procedures were not followed in no way invalidated the election. S. 80(1) of the Act provides:-

“All questions which may arise from any election as to the right of any person to be or remain an elected member of the National Parliament shall be referred to and determined by the Court on a petition presented by the Attorney-General or by an elector, in accordance with the procedure prescribed by Rules made under section 83 of this Act for the presentation and hearing of an election petition and the decision of the Court on any such petition shall be final and shall not be questioned in any other proceedings.”

S. 81(1) of the Act provides that a petition may be presented within one month from the date of the publication of the result of the election in the Gazette in terms of s.56(2)(b) of the Act. The results of the general election held on October 24, 1984 in the case of 37 constituencies were published in Gazette No. 44 on December 21, 1984. The result of the election held at East Kwaio on November 14, 1984 was not included and has never been gazetted. It is arguable that the omission was in effect notice to the plaintiff that the authorities did not consider him to be an elected member and it was then open to him to file a petition to this Court to establish his position in terms of s.81 of the Act. Whatever his proper course may have been there can be little doubt that the matter should have been referred to the Attorney-General to file a petition in this Court to have the election at East Kwaio declared null and void. In the event neither the Attorney-General nor the plaintiff has filed any petition under the Act although it would still appear to be open to them to do so.

Mr Brown has conceded that if an election petition had been filed by the Attorney-General or an interested party that this Court would have had to declare that the election was void with the result that a new election would have to be held. However in view of the express wording of s.80 of the Act that “all questions which may arise from any election as to the right of any person to be or remain an elected member of the National Parliament shall be referred to and determined by the Court on a petition ... in accordance with the procedure prescribed by Rules made under section 83 of this Act .....”. I find that I have some difficulty in answering the questions posed by the plaintiff on his originating summons seeking declaration as they are not properly before me.

I would however answer question 3 in the affirmative and declare that the only way the validity of an election can be challenged is by election petition to the High Court. I am also prepared to declare in answer to question 6 that the provisions of s.64(1) in so far as they relate to the October 1984 general election cannot at this stage be invoked by the Electoral Commission.

In my opinion, but I am not prepared to make a declaration in these proceedings, the plaintiff was elected the member for East Kwaio constituency when the result was declared by the Returning Officer at Atori Sub-station East Malaita but that on an election petition being presented to this Court and on the facts as given to me by Counsel in the present case I would have to hold that the said election was void. My opinion is of course obiter dicta and not binding on the parties.

I make no order as to costs.