Taika v Premier Central Province [1990] SBHC 75; [1990] SILR 30 (16 March 1990)

[1990] SILR 30

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 190 of 1989

JEFFREY TAIKA

v

PREMIER OF CENTRAL PROVINCE AND JOHN TAY PRIVATE

High Court of Solomon Islands
Ward CJ
Civil Case No. 190 of 1989

Hearing: 28 February 1990
Judgment: 16 March 1990

Originating summons - provincial government - area council - validity of election of President.

Facts:

The applicant was elected a member of the Bellona Area Council in November, 1988. An election for the office of President was conducted by the Assistant Administrative Officer for Gela and Savo Islands Area Councils in December 1988. At the election, two of the three appointed members were present but were not allowed to vote due to an error made by the Assistant Administrative Officer concerned. The Premier of Central Province (the First Respondent) declared the election invalid on this basis. On 27 July 1989, a fresh election for the office of President was conducted and the Second Respondent was elected.

The Appellant sought a declaration from the court regarding the invalidity of the First Respondent’s direction to set aside the first election, a declaration that he was validly elected to the office of President of Bellona Area Council, and a declaration that the Second Respondent’s election was invalid. In response the Respondents applied for a declaration that the Appellant’s election was invalid.

Held:

The election had been conducted in accordance with the Act under which it was held and with the Constitution. However, there was a breach of the applicable rules.

1. (Obiter) If an election was conducted in accordance with the principles of the Act and the Constitution, it was not vitiated by a breach of the rules or a mistake at the polls, unless that breach or mistake affected the result of the election. As this breach affected the result of the election, the election was invalid.

(Obiter) If an election was not conducted in accordance with the principles of the Act or the Constitution the election was vitiated, irrespective of whether the result was affected or not.

Cases referred to:

Evo v Supa and the Returning Officer [1985-86] SILR 1
Morgan & Others v Simpson & Others [1974] 3 All ER 722

Legislation referred to:

None

J. Muria for the Applicant
Miss Weber for the Respondents

WARD CJ: By originating summons the applicant seeks three declarations, a fourth having not been pursued at the hearing.

1. A declaration that the direction given by the 1st Respondent to the Assistant Administrative Office Bellona as contained in a letter dated 4/1/89 in which the 1st Respondent directed that the elections of the Presidents of Bellona and West Rennell Area Councils were invalid and had no legal basis and therefore invalid and ineffective.

2. A declaration that the Applicant was validly and properly elected to the Office of President of Bellona Area Council.

3. A declaration that the subsequent election of the 2nd Respondent on 26/7/89 as President of Bellona Area Council was invalid and of no effect.

The respondent also seek a declaration –

... that the election of the Applicant Jeffrey Taika to the office of President of Bellona Area Council was illegal and invalid.

In November 1988, the applicant was elected a member of the Bellona Area Council. By Standing Order 2 there must be an election for President at the first meeting of the Council after the Area Council election. An election was held on 21st December 1988 and was conducted by the Assistant Administrative Officer for the Gela and Savo Islands Area Councils. The Bellona Area Council at that time consisted of nine elected members and three appointed members two of whom are appointed by the Chiefs and one of whom is appointed by reason of being the Provincial Assembly member for Bellona. The latter is the first respondent and was the Premier of Central Province. At the election for President, he was absent from the Council meeting but the remaining two appointed members were present. However as a result of a mistake by the Assistant Administrative Officer, they were not permitted to vote and the applicant was elected by five votes to four.

It is agreed by both parties that the exclusion of the two appointed members was wrong.

Neither the Area Council Ordinance, 1984, nor the Standing Orders provided any machinery to challenge such a mistake. However on 4th January 1989 the first respondent purported, as Premier, to declare the election invalid and direct a fresh election to be held. It is agreed by both parties that he had no power to do this but it appears that, as a result of this extraordinary action, the Area Council ceased to sit.

On 12th June 1989 a letter was sent from the Assistant Administrative Officer, Rennell and Bellona, saying that the issue was awaiting a High Court ruling. Had such a step been taken, it would have provided an opportunity to have the matter resolved but, despite the letter, no such action was commenced.

On 27th July 1989 a fresh election was held for President at which the second respondent was elected after the applicant and one other member had walked out in protest.

Both parties agree the applicant's first declaration and I make it as prayed.

The remaining matters relate to the validity of the two elections.

All agree the Assistant Administrative Officer made a mistake in excluding the two appointed member who were present at the time. The effect of such conduct on an election to the National Parliament was dealt with by White ACJ in the case of Evo v Supa and the Returning Officer (1985-86) SILR 1 where he adopted the test laid down by Lord Denning in Morgan & Others v. Simpson & Others (1974) 3 All ER:

1. If the election is conducted so badly that it was not in accordance with the principles of the Act and the Constitution the election is vitiated, irrespective of whether the result was affected or not.

2. If the facts did not lead to the election being vitiated under (1) it is not vitiated by a breach of the rules or a mistake at the polls - provided that it did not affect the result of the election.

3. Even though the election was conducted in accordance with the principles of the Act and the Constitution, nevertheless if there was a breach of the rules or a mistake at the polls - and it did affect the result - then the election is vitiated.

The same principles apply here and this case falls within the third category. Although the election was conducted in accordance with Standing Orders, the mistake by the Assistant Administrative Officer was such that the result could have been affected.

Thus I refuse the second declaration sought by the applicant and make the declaration sought by the respondents.

In dealing with the subsequent election, Miss Weber tells the Court that, in view of the mistake that was made, the Premier called the members together to hold an election. She suggests that would be the most fair and efficient way to proceed so that the Council could organise itself and get on with the business of governing. I can sympathise with such sentiments but he had no power so to act.

If it was felt the earlier election was invalid, it should have been challenged in the Court as was suggested had been done and as the applicant here has done. It is not up to an individual member of the Council or a member of the Provincial Executive simply to declare the election invalid. Until it is declared invalid by the courts it must stand.

However anxious the Premier was to get the Council functioning, the second election was invalid and should not have been held.

I make the third declaration sought by the applicants.

This whole case was brought about by the Premier’s action and I see no reason why he should not pay the costs of the plaintiff and the Second Respondent.