Aihunu v Attorney General [1985] SBHC 20; [1985-1986] SILR 108 (15 November 1985)

1985-1986 SILR 108

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 89 of 1985

AIHUNU

v

ATTORNEY GENERAL

High Court of Solomon Islands
(Wood C.J.)
Civil Case No. 89 of 1985

7 November 1985 at Honiara
Judgment 15 November 1985

Breach of statutory duty - election - failure to make official mark - whether action in law for - damages - assessment of - anticipatory salary

Facts:

The plaintiff claimed damages as a result of breach of statutory duty and/or negligence of the defendant at the general election for Parliament in which the plaintiff was a candidate. The plaintiff came in second in the poll, but would have won by one vote if 109 ballot papers that were not marked with the official mark in accordance with s.37(b)(i) of the National Parliament Electoral Provisions Act 1980, had been counted.

The defendant admitted the facts, but maintained that those facts were not sufficient to support an action at law, citing the rule that where the remedy for a breach of statutory duty is supplied in the statute, in this case, to bring an election petition, the aggrieved party cannot seek any other remedy.

Held:

1. The failure of the polling assistant to mark the ballot papers with the official mark was a breach of his statutory duty in terms of s.37(b)(i) of the Act and negligent in consequence of which the defendant was liable to the plaintiff for damages. (Pickering v. James (1873) 8 LRCP 489 followed).

2. The statutory remedy, to bring an election petition, is not a remedy for damages.

3. In assessing damages, anticipatory salary must be discounted. Moreover, the life of the Parliament was uncertain and salary is for work done and the plaintiff had done no work as a Member of Parliament.

Accordingly, the plaintiff was granted $500 for his appointment and $2,500 for the balance of his claim for a total judgment of $3,000.

Cases considered

Pickering v. James (1873) 8 LRCP 489

Andrew Radclyffe for the Plaintiff
Reginald Teutao for the Defendant

Wood CJ: The plaintiff’s claim is for damages losses and expenses incurred as a result of the negligence and/or breach of a statutory duty of the defendant his servants or agents at the General Election held on October 24, 1984 for the West Are Are constituency. The defendant’s case is that whilst the facts in support of the claim are admitted that those facts are not sufficient in law to sustain the action.

The admitted facts which are set out in the plaintiff’s statement of claim are as follows. The plaintiff was a candidate for the West Are Are electoral constituency at the general election held on October 24, 1984. The result of this election was that David Kausimae was declared duly elected having polled 428 votes and the plaintiff came second in the poll with 394 votes. The plaintiff subsequently brought an election petition before the High Court (Civil Case No. 103 of 1984) on the ground that 109 ballot papers were not marked with an official mark as required by s.37(b)(i) of the National Parliament Electoral Provisions Act 1980 (hereinafter referred to as “the Act”) with the result that, in accordance with s.49(a) of the Act, the votes tendered were not counted. Had those 109 votes been included the plaintiff would have polled one vote more than Mr Kausimae and would have been declared the duly elected member for the said constituency. The High Court declared that the election was void and at the new election held in April 1985 the plaintiff was an unsuccessful candidate. As an elected member of the National Parliament the plaintiff would have been entitled to receive a salary and other emoluments specified in the claim. It was a result of the negligence and/or breach of a statutory duty of the defendant his servants or agents that the plaintiff was not declared the elected member of the National Parliament for the West Are Are electoral constituency after the general election on October 24 1984 and in the circumstances the plaintiff has suffered loss and damages. The particulars of the said negligence and/or breach of a statutory duty are the failure to ensure that the said 109 ballot papers bore the official mark as required by s.37(b)(i) of the Act and secondly failure to instruct or supervise or adequately instruct or supervise the Returning Officer and/or the other electoral staff for the said constituency.

As I have indicated all this is admitted by the defendant and the sole issue before me is whether or not the plaintiff has an action in law against the defendant for his servant's or agent's negligence and/or breach of statutory duty in the circumstances of this case.

In Pickering v. James (1873) 8 LRCP 489 the head note reads that “the Ballot Act 1873, by implication, imposes a duty prima facie on the presiding officer at a polling station during an election to deliver to the voters voting papers bearing the official mark..... For breach of these duties, being merely ministerial, an action will lie by a party aggrieved e.g. who has thereby lost the election through votes given to him being void for want of the official mark, without malice or want of reasonable care on the part of the defendant”. It will be seen that the facts of this case are on all fours with the instant case. Mr Aihunu lost the election at West Are Are in October 1984 because votes given to him were void for want of the official mark. S.37(b)(i) of the Act reads as follows:-

“The voting at an election shall be conducted in the following manner-

(b) immediately before the polling assistant delivers a ballot paper to an elector-

(i) the ballot paper shall be marked with an official mark.”

The right of action pronounced in Pickering's case has been removed by legislation in the United Kingdom under s.50 of the Representation of the People Act 1949 but both Mr Radclyffe and Mr Teutao agreed that this section had no application in Solomon Islands. The law in Solomon Islands is to be found in the Act and the Act has no similar provisions as those contained in s.50 of the United Kingdom Act. Pickering’s case would therefore seem to be still good law in Solomon Islands.

Mr Teutao has submitted however that the rule is that where a remedy for a breach in a statute is provided for in the statute an aggrieved party cannot seek redress by use of some other remedy. Such a remedy is provided for by s.81(1) of the Act by way of an election petition. An election petition lies to redress an undue return or election of a member of the National Parliament. The plaintiff in this case did bring a successful election petition in this Court which resulted in the election of Mr Kausimae being declared void. This form of redress has no application to the present issue before me and cannot be any sort of remedy for damages.

There seems to me to be no doubt that the failure of the polling assistant to mark the ballot papers with the official mark was a breach of his statutory duty in terms of s.37(b)(i) of the Act and negligent in consequence of which the defendant is liable in damages to the plaintiff following the judgment of Pickering v. James op. cit.

The plaintiff has claimed his salary as a Member of Parliament from October 24, 1984, his appointment grant of $500 and terminal grant or NPF contributions. Mr Radclyffe has conceded that a discount would have to be made for anticipation of salary but further difficulties are that no one knows how long the life of this Parliament will be and I have to remember that any salary is for work done and that the Plaintiff has done no work whatsoever as a member of Parliament.

I would accordingly grant him his $500 appointment grant and award him $2,500 damages in respect of the balance of his claim. That is to say a total of $3,000 with the costs of this cause.