Pepena v Speaker for Makira/Ulawa Province [1996] SBHC 41; HC-CC 110 of 1996 (22 August 1996)

HIGH COURT OF THE SOLOMON ISLANDS

Civil Case No. 110 of 1996

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MATHIAS PEPENA

v

THE SPEAKER ER MAKIRA/ULAWA PROVINCE

AND ATTORNEY GENERAL

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Before: Longole-Awich, J

Hearing: 7 August 1996 - Judgment: 22 August 1996

Counsel: A Radclyffe for Plaintiff - G Samuel for Defendants

JUDGMENT

LUNGOLE-AWICH J:

The Plaintiff Mr. Mathias Pepena on 15 April 1996 filed in court, originating summons dated the same day. It was the result of a letter dated 4 December 1995, written to him by the Speaker of Makira Ulawa Provincial Assembly. In that letter, the Speaker stated that the plaintiff's membership of the assembly was to cease on 15 December 1995; he declared the seat of the plaintiff in the assembly, vacant. The Speaker gave as reason that the plaintiff was disqualified, "in pursuance to section 16(1) (h) of the Provincial Government Act," 1981, as amended by Act 5 of 1986. Section 16(1)(h) provides for disqualification from membership of assembly, "if the person is not a resident of the Province." In the originating summons, Solicitor for Mr. Pepena described him as Plaintiff, the Speaker. Makira Ulawa Province as First Respondent and Attorney General as Second Respondent. He asked for declaration by court in these particulars:

1. That the First Respondent has no power to declare the plaintiff's seat for Ward 17 in the Makira Ulawa Provincial Assembly vacant on 4th December 1995.

2. That the Plaintiff is still the duly elected member for Ward 17.

The originating summons was supported as required, by affidavit stating the facts upon which the plaintiff relys, for the declarations he seeks. and the provisions in the legislation, about which he seeks the declarations.

Although it is not important for the determination of this case, I must mention here that it is important that titles of parties should be correctly stated in court papers. In proceedings by originating summons parties must be described as plaintiff or plaintiffs in the case of the person or persons bringing the case, and as defendant or defendants in the case of the person or persons against whom the case has been brought. Those descriptions are the requirements of Order 57 rule 4, which states that, "originating summons shall be in the Form 2,3 or 5 of Appendix H of these Rules." The forms describe the parties as plaintiff and defendant. The English Rules of the Supreme Court at appendix A gives the various forms to be used as format of originating summons. In all of them the parties are described as plaintiff and defendant. It is my view that the civil case procedure rules we have already have too many technical descriptions and we should avoid or at least be slow to introduce new ones or to introduce complication into the existing ones. Parties should try to stick to given terminologies. It is ordered that the parties described in the originating summons as First Respondent and Second Respondent be described a First Defendant and Second Defendant, respectively.

The plaintiff did not depose in his affidavit that he was resident in Ward 17 in Makira Ulawa Province, in answer to what the letter of the Speaker stated. I must take it that it is not his case that he was resident at the time the speaker wrote, so as to challenge the speaker's letter on the facts. His case is that in terms of S 16(3) of the Provincial Government Act. No 7 of 1981, as amended by Act No 5 of 1986, the speaker could only declare a person disqualified, "within 30 days after the election," of the person. In the affidavit at paragraph 6 he stated the days as 60; perhaps an oversight. The discrepancy is not material in the determination of this case. In support of that interpretation of S 16 (3) the plaintiff averred that the election in which he was declared the elected candidate was held on the 27 September 1995. He did not state, but I shall assume that the declaration was made the same day as the election. Subsequently he attended the meeting of the assembly at which the Speaker of the assembly was elected (again he did not state date), without anybody challenging his membership of the assembly. Then on 4 December 1995 (some 68 days) later, the speaker wrote to him the letter said to disqualify him. which letter I have referred to earlier. I set out the letter in full, excluding the letterhead and address:

Date: 4. 12.95

The Hon. M. Pepena
P. O. Box G36
Honiara

DECLARATION OF A VACANT SEAT IN THE MAKIRA ULAWA PROVINCIAL ASSEMBLY

In exercise of the power conferred by Section 17(1) of the Provincial Government Act of 1986, I Fr Dixon Agosi Speaker of Makira Ulawa Provincial Assembly hereby declare your seat in the Makira Ulawa Provincial Assembly as vacant and your membership thereupon ceases as of 5th December, 1995.

Your disqualification is in pursuance to Section 16(1) of the Provincial Government Amendment Act of 1986.

May I also advise that under section 17(2) of the same act, you are given the right to petition the High Court for relief from the declaration within 30 days from the date of this declaration should you wish to do so.

Fr Dixon Agosi

Speaker

Makira Ulawa Provincial Assembly

cc: A G Chambers
cc: PS - MUP
cc: PPA - MUP
cc: Honourable Premier

Section 17(1)(h) of the Provincial Government Act, 1981 as amended by Act No. 5 of 1986 in terms of which the speaker stated he wrote the letter reads

"17 (1) Where a member of a Provincial Assembly is disqualified under section 16, the Speaker shall by written notice declare the seat of the member as vacant, and his appointment shall thereupon cease.

(2) A member whose seat has been declared vacant may, within thirty days, petition the High Court for relief from the declaration, and the decision of the High Court on such petition shall be final

(3) A seat declared vacant under subsection (1), shall remain vacant until the time of filing a petition for relief has expired without a petition being filed or has been disposed of, or abandoned.

(4) The validity of any proceedings of a Provincial Assembly shall not be affected by the disqualification of any person from membership of the Assembly."

Learned counsel Mr. Radclyffe, for the plaintiff did not take issue as to whether the speaker was empowered at all to declare a seat of a disqualified member vacant. His submission was that in this case, the speaker could not do so by his letter dated 4 December 1995 because that letter was written after 30 days. He urged that when a member is found disqualified under section 16(1)(h), the speaker would have to act within 30 days, by declaring the member's seat vacant. I understand his argument, to be that the Speaker ought to have acted latest by 29 October 1995, after the election held on 29 September 1996. Counsel said that that was the interpretation of S 16(3) That section reads:

"(3) A person who would otherwise be disqualified from membership of an assembly on any of the grounds specified in subsection (1)(f) to (l), shall, if, such disqualification is to be disregarded within thirty days after the election or appointment have the ground of disqualification removed."

Learned Counsel, Mr. Samuels for the Attorney General, in his submission said that there was difficulty in understanding sections 16 and 17. He urged the court to look at the Act as a whole, and to dismiss the plaintiff's case. Mr. Samuels was echoing what Mr. Radclyffe had said about subsection 3 with and without commas to illustrate what he said was uncertainty in the meaning I agree with both counsel; subsection (3) could have been stated more clearly We must however, remember that statutes should not be interpreted as meaningless. It appears to me that a comma was omitted between the words, "disregarded" and within and further on between the words, "appointment" and "have". It is my interpretation that the person to remove the ground for disqualification or to have the grounds removed for, is the person who would otherwise be disqualified.

The Sections of the Act, sections 16 and 17 and 1 add 11 and 15, that are in consideration in this case all come under part II of the Act in the chapter headed, "Establishment of New Provincial Assemblies." The sections therein are 7 to 20. Sections 11 to 18 deal with election of members of provincial assemblies. So Sections 7 to 18 must be seen as related Section 11 spells out qualifications of persons entitled to vote at a provincial assembly election. Section 15 spells out who shall qualify for membership of a provincial assembly. It reads:

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

(a) is a citizen of Solomon Islands;

(b) has attained the age of twenty-one years; and

(c) is ordinarily resident in the Province. "

It must be noted that after the legislators have stated, in s 15, the grounds that qualify a person for membership they saw it appropriate to state in subsequent section, s 16, the grounds that disqualify a person from membership. One would suppose that the grounds that would qualify are the same grounds that would disqualify if they are lacking. That is not wholly correct but also not wholly incorrect as it can be seen that s.16(1) states lack of or grounds very similar to lack of some of the qualifications in s 15, as disqualifications. Section 16(1 ) reads:

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

(a) is by virtue of his own act, under any acknowledgment of allegiance, obedience or adherence to a foreign power or state;

(b) is an un-discharged bankrupt under Solomon /slands law;

(c) is certified to be insane or otherwise adjudged to be of unsound mind under Solomon Islands law;

(d) is under sentence of death imposed by a court in any part of the world, or is under a sentence of imprisonment (by whatever name called) for a term of, or exceeding, six months, other than a sentence in lieu of a fine, but including a suspended sentence, imposed by such a court or substituted by a competent authority for some other sentence imposed by such a court;

(e) is disqualified from membership of Parliament or a provincial Assembly or from registration as an elector or from voting at election under Solomon Islands law relating to offences connected with elections;

(f) is a member of the National Parliament;

(g) holds. or is acting in, any public office or is a provincial government officer of any Province;

(h) is not a resident of the province; or

(l) is the speaker of the Assembly.

(2) For the purpose of subsection (1)(d)

(a) two or more terms of imprisonment that are required to be served consecutively shall be regarded as a single term of imprisonment for the aggregate period of those terms;

(b) a person is not disqualified by virtue of that subsection unless the time of appealing against the sentence or conviction has disposed of or abandoned; expired without an appeal being made or the appeal has been disposed of or abandoned;

(c) A person disqualified by virtue of that subsection due to a sentence imposed by a court outside Solomon Islands may, petition the High Court for relief from such disqualification.

(3) A person who would otherwise be disqualified from membership of an Assembly on any of the grounds specified in subsection (1)(f) to (i) shall, if, such disqualification is to be disregarded within thirty days after the election or appointment have the ground of disqualification removed.

Moreover, what appears to be uncertainty about the two sections is compounded by the fact that when a Returning Officer considers, in terms of regulation 13 of the Provincial Assemblies Election Regulations, 1987 (Legal Notice 43 of 1987), whether nomination of a candidate for provincial assembly election is valid or not, he has to take into account among other things, whether the candidate qualifies under s15 and whether he is disqualified under s16. It seems to me that the legislators realised and intended that there are occasions upon which the qualifications in s15 or the disqualifications, in s16, may be used together and there may be occasions when qualifications or disqualifications may be used alone. With this in mind, I think it is appropriate to attach significance to the words, "shall be qualified for membership," found in s.5 and the words, "shall be disqualified from membership," found in s 16. The significance seems to me to be that s 15 is emphasised when one is being considered for becoming a member, of course through nomination and election. And on the other hand, s16 is emphasised when one has become a member. It must be realised that one could qualify and be elected, yet once elected he might acquire disqualifications by falling foul of, or by subsequently not meeting the requirements of subsections 16(1) and (2). His disqualification might also escape notice at nomination time. It is my view that s16(3) is a provision aimed at calling upon someone who has been elected and has become a member and has become disqualified by reasons of subsections (1)(f) to (i) to correct the ground for disqualification, within 30 days or risk the action of the speaker under s.17.

In the present case the disqualification is said to be that in section 16(1)(h), namely, that the plaintiff is not a resident of the province. It might well be that the plaintiff was regarded as resident in the province at the time of nomination, but has since demonstrated that he is not so resident and that has come to the attention of the speaker. If that was the case, then the speaker was authorised by s 17(1) to declare, by written notice, that the plaintiff's seat in the assembly is vacant. It is my decision that s17(1) is not meant to empower the speaker to ascertain disqualification of a member as at the time of the member's nomination and during his election, and there upon to declare the member disqualified. That is the responsibility of Returning Officer under regulation 13 of the Provincial Assemblies Regulations. So the argument adopted by plaintiff's counsel is rejected. That section must be read as empowering the speaker who has become aware that a member is disqualified member is disqualified whilst he is a member, and that may even be a result of an oversight on the part of the Returning Officer. It must however, be noted that the Speaker's part extends only to declaring the seat in the assembly vacant; he does not say anything about the qualification of the member as at the time of his nomination and election.

In this case, it would appear that the representative of the Attorney General did not take full instruction or the speaker did not avail to full instruction. One would expect a replying affidavit as to the facts upon which the speaker based his decision to issue written notice declaring the plaintiff’s seat in the assembly vacant. Was there good reason for not obtaining the affidavit? It left a bad gap in the case of the defendants. In the circumstance the declaration that the court makes in regard to prayer (1) is:

The First Defendant, the speaker of Makira Ulawa Provincial Assembly, had power in terms of s.17 to declare the plaintiff’s seat for Ward 17 in the Makira Ulawa Provincial Assembly vacant on 4 December 1995 if it had come to his notice that the plaintiff was disqualified under s16(1)(h), by reason of the plaintiff not being a resident of the province, and that had been the case that for more than 30 days prior to 4 December 1995. The first defendant has not supplied to court the facts which he considered to decide that the plaintiff was not a resident, so it must be taken that he had no facts upon which to base his declaration and so he had no power to make the declaration he made on 4 December 1995.

As to declaration in prayer 2, the court rejects the declaration sought and declares to the contrary, namely:

That the plaintiff is no longer a member of the Makira Ulawa Provincial Assembly for Ward 17.

The reason is that that the time allowed under s17(2) to challenge a declaration by the speaker, that a seat in the assembly is vacant is 30 days. The challenge is by petition. It is clear to me that the intention in subsection (2) is to exclude discretion in the period allowed for challenging declaration of a speaker. The subsection goes on to state that the challenge at the High Court shall be final. That amplifies the intention to limit litigation on the subject. That view I take of the provision of the subsection is the prevalent view election cases generally. Courts have recognised that public policy requires that litigation about election and membership of representatives of the public should come to finality early so that representatives of the public get down to the business for which they were elected.. After all, in a democratic society, the period for which they are elected is limited and usually short; sometimes too short to allow them to accomplish all they set out to achieve.

I do not regard it as absurd that a speaker who is found on the facts to have had no power to declare a seat vacant should be protected by the requirement that he be challenged within a limited period. It is well-known that in our law even well founded claims such as straight forward debts owed cannot be claimed through court if the creditor sleeps on his claim for too long.

Dated this 22nd day of August 1996

At the High Court, Honiara

Sam Lungole-Awich,
Judge