Sogabule v Maezama [1996] SBHC 36; HC-CC 383 of 1995 (19 July 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 383 of 1995

ter">JOHN SOGABULE

-v-

SONNY MAEZAMA and S.C. TAHILI

e: Muria, ria, CJ

Hearing: 17 July 1996 at Gizo - Judgment: 19 July 1996

Counsel: A. Radclyffe for the Petitioner; Respondents in Persons

trong>MURIA CJ:

This is an election petition brought by the petitioner challenging the decision made by the second respondent who was the Returning Officer disqualifying him from standing as a candidate at the last Western Provincial Election. The second respondent's power in this regard is provided under regulation 14(1)(a) of the Provincial Assemblies Election Regulations 1986.

Before turning to the relevant provisions of the law on provincial elections, let us first of all see what the facts are in this case. Happily the facts are not in dispute here.

The last Provincial election was held on 11 December 1995. The petitioner was nominated to stand as a candidate for Ward 16, Dunde, Nusa Roviana. At the close of the nomination the petitioner, nominated by three nominees, was disqualified by the second respondent from being a candidate at the election. This decision was communicated to the petitioner by the second respondent in a letter dated 20 November 1995 which is in the following term:

"Dear Sir,

Under the power, conferred upon me by Regulation 14(1)(a) Provincial Assembly Election Regulation 1986, I regret to advise that your nomination paper has been disqualified under Sec. 15(c) of the Provincial Government Act 1981.

I regret therefore for any inconvenience cause in this regard. By copy, your nominees are hereby informed"

It has also been accepted that similar decisions had been made by the second respondent in respect of the candidacies of other candidates at the time.

I set out the Returning Officer's power under regulation 14(1)(a) which follows:

"14 (1) The Returning Officer shall not hold any nomination paper invalid pursuant to regulation 13 unless one or more of the following grounds exist -

(a) the candidate is not qualified under section 15 or is disqualified for membership of the Provincial Assembly under section 16 of the Provincial Government Act 1981;"

The sole ground for disqualifying the petitioner from being a candidate was that he was not ordinarily resident in the Province as provided under section 15(c) of the Provincial Government Act 1981 as amended in 1986. Section 15 had been amended and the new section 15 reads as follows:

"15. Subject to the provisions of section 16, a person shall be qualified for membership of a Provincial Assembly if, the person -

. . . . . . . . . .

(c) is ordinarily resident in the Province."

It is worth mentioning that under section 15(c) which is the qualification provision, a person is qualified to be a member of a Provincial Assembly if he is ordinarily resident in the Province. On the other hand, under section 16 which is the disqualification provision, a person is disqualified from membership of a Provincial Assembly if he is not a resident of the province. See paragraph (h) of section 16. The qualification provision uses the phrase "ordinarily resident" in the Province whereas the disqualification provision uses the phrase "a resident" of the province.

Again to add interest into the discussion, we turn to the repealed section 15 (the then disqualification provision) which used the words "ordinarily resident". See paragraph (g) of section 15. So that under paragraph (g) of the former section 15, a person is disqualified from membership of a Provincial Assembly if he is not ordinarily resident in the province whereas under section16, a person is disqualified from being a member of a Provincial Assembly if he is not a resident of the province.

Clearly these differences in the language used to describe one thing, that is, the criteria for membership of a Provincial Assembly, cannot be without significance. That significance must be in the intention of Parliament to be borne out of the words themselves as used in those provisions. The words used are not technical words. They are ordinary English words and as such they must be given their ordinary meaning.

As for the words "ordinarily resident" I accept that this Court had already determined what those words meant in Tegavota -v- Benneft [1983] SILR 34. In that case it was accepted that to be resident in a place one must assume some degree of permanence in the Solomon Islands context and that it is in accordance to the way in which one's life is usually ordered.

In the present case, the evidence adduced by the petitioner and accepted by the respondents is that the petitioner was born in Munda. His parents are in Munda. He attended primary school in Munda and after leaving Munda for further education elsewhere in the country and overseas, he returned to work for the Government and lived in Honiara. He then retired from Government service and took up private business about 80% of which is in the Western Province. He owns Paradise Lodge in Gizo, a gas and petrol distributor service in Gizo and Munda. His other 20% business interest consists of a retail shop in Honiara which is managed by a paid manager. As to residence, he divides that to two weeks in Western Province (Munda) and two weeks in Honiara. At the time of nomination, he was living in Munda. His going back to Honiara for two weeks in a month is largely due to his children's education and to see his family (wife and children) who were in Honiara. He has houses both in Munda and Honiara.

Applying the test in Tegavota -v- Benneft, I am disposed to accept that in the Solomon Islands context, the petitioner can be described as a person ordinarily resident in the Western Province and as such qualified for membership of a Provincial Assembly in terms of section 15(c) of the Act. Thus under the present section 15(c) like the repealed section 15(g), the petitioner would be eligible to be a candidate to stand for election.

However that is not the end of the matter because the new section 15 now is subject to section 16 of Act. It is the latter section which sets out the disqualification criteria for membership of a Provincial Assembly. One such criteria is set out in paragraph(h) of section 16 which is as follows:

"16. (1) A person shall be disqualified from membership of a Provincial Assembly if, the person -

. . . . . . . . . . .

(h) is not a resident of the province"

As we have seen in that provision a person is disqualified if he is not a resident province.

I feel the intention of Parliament is clearly borne out by those words. A person is disqualified from membership of a Provincial Assembly if he is not a resident of the province. It does not speak of "ordinarily resident in the province" but rather of "a resident of the province"

The parties in this case, regrettably, only centred their argument on the qualification criteria under section 15(c) and did not deal with the section 16(h) criteria for disqualification to which section 15 is subject. Be that as it may, it is clear in my judgement that Parliament deliberately uses one language in the qualification provision and another in the disqualification provision. This is so to guard against a situation, as in the past, where following the Tegavota -v- Bennett case, a person can still become eligible to be a member of a Provincial Assembly as long as he is ordinarily resident in the Province in terms of section 15 of the Act. It is not uncommon for such a person who after becoming a member of a Provincial Assembly spent most, if not all, of his time out of the Province. It is this mischief which section 16(h) is designed to remedy. Hence the use of the words "a resident of the province."

In my judgement, while a person may qualify as ordinarily resident in the Province, in the Solomon Islands context for the purpose of standing for Provincial election, such a person can be disqualified from being nominated as a candidate if he is not a resident of the province which requires some degree of permanent personal presence in the province so as to be seen as " a resident of " that province.

The 1986 amendment now requires a two strong-criteria for membership of the Provincial Assembly. Not only that an intending candidate must show that he comes from a particular province and that he has his home, properties, business, family and other links with that province, thereby satisfying the Tegavota -v- Bennett test of "ordinarily resident" but he must go further and satisfy section 16(h) by showing that he is "a resident" of the province in the sense that he is actually residing in the province and thereby assuming some degree of permanent personal presence in the province.

Now applying that principle to the facts of this case again, can it be said that the petitioner has brought himself within the requirement of section 16(h) of the Act? In other words, was the petitioner "a resident" of the Western Province at the time of his nomination? This obviously is a question of fact and I would prefer to respectfully adopt the test in enunciated by Lord Denning M.R. in Fox -v- Stirk & Bristol Electoral Regulation Officer [1970] 2 ALL ER 10, at 12 where the learned law Lord says:

"was there at the relevant time a considerable degree of permanence in the stay of the person subject to inquiry at the place in which he is said to reside?"

Fox's case is referred to in Tegavota -v- Bennett and I feel the test set out by Lord Denning is more appropriate to the question as to whether a person is or is not "a resident of the province" in terms of section 16 (h) of the Act.

In this instance, 1 feel the words of Lord Cave L.C. in Levene -v- Inland Revenue Commissioners [1928] UKHL 1; [1928] All E.R. Rep. 746 at page 749 on the definition of the word "reside" are worth noting:

"... 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'..."

When applying the test as set out by Lord Denning the circumstances of the case must be considered as a whole. The facts as shown by the evidence point out that that in terms of section 15, the petitioner was eligible to stand as a candidate at the last Provincial Election. That eligibility was of course subject to the disqualification contained in section 16 of the Act, that is, the petitioner must show that he is "a resident of the province."

I have taken to heart the words of Lord Cave L.C and Lord Denning in considering, not whether the petitioner is ordinarily resident in the province but rather whether he is "a resident of the Province." In the words of the learned Law Lords, that must entail the notion that there must be permanence with some degree of continuity which is vital.

The petitioner in this case, though eligible spends half of his time in Honiara and half of it the Western Province. For a business proprietor that is perfectly acceptable. However for the purpose of seeking to represent the people in a representative Assembly in my judgement such cannot satisfy the criteria set out in section 16 (h) of the Act.

I therefore dismiss the petition and I so certify that fact to the Hon. Minister for Provincial Government and Rural Development and that Sonny Maezama had been duly returned as a member for Ward 16, Dunde Nusa Roviana.

ter">GJB Muria
CHIEF JUSTICE