Maesua v Dausabea [1997] SBHC 120; HCSI-CC 255 of 1997 (1 December 1997)

CC255, CC268, CC260, CC261, CC263,

CC265, CC266, CC276, 97 HC

IN THE HIGH COURT OF SOLOMON ISLANDS
(Civil Jurisdiction)

BETWEEN: AND:

DAVID MAESUA -v- CHARLES DAUSABEA AND

JAMES DELEMANI

MATHIAS PEPENA -v- DAVID SITAI

RONNIE TO’OFILU -v- MOON PIN KWAN

BRIAN SAOBA -v- DAVID VATAMANA VOUZER

WILLIAM GIGINI -v- JAMES TRASEL SALIGA

SAM SEMUEL IDURI -v- STEPHEN TONAFALEA

AND RETURNING OFFICER

FRANCIS ORODANI -v- MESACH MAEBIRU MAETOLOA

JOE TIMOTHY ARIARIA -v- ALFRED ARAHA HAIRIU

DATE OF JUDGMENT: DECEMBER 1997

Muria CJ Following the last General Election twenty three (23) election petitions were lodged with the High Court of Solomon Islands. This judgment concerns only those petitions filed after 12 October 1997.

This matter is a short but important one. It involves the interpretation of sections 56(2) (b) & 81 (1) of the National Parliament Electoral Provisions Act, 1980. But before I proceed to deal with the matter, it is necessary to set out briefly the circumstances of this case.

The General Election was held on 6 August 1997 for the 50 seats in the National Parliament. By Notification signed on 11 September 1997, H. E. The Governor-General published the result of the general election. That Notification of Results was then published in the Solomon Islands Gazette dated Friday 12th September, 1997. Taking the 12 September 1997 as the date of publication of the results of the general election in the Gazette, the Registrar of High Court issued letters to the petitioners to the effect that their petitions were filed outside the one month limit required by section 81 (1) of the Act. Subsequently a Notice of Hearing was sent out to all those petitioners concerned to show cause why their petitions should not be struck out for filing them out of time.

Counsel appearing for both the petitioners and respondents supported the contention that the petitions were filed in time and should not be struck out. It appears from the affidavit evidence that at one stage the Attorney General was take the contrary view. However, before this Court, Mr. Samuel who appeared for the Attorney General supported the contention now put forward by Counsel for the petitioners and respondents.

As the argument revolves upon the interpretation of sections 56(2) (b) and 81 (1) of the National Parliament Electoral Provisions Act, 1980, it would be helpful to set out those provisions and I do so hereunder. Section 56(2) (b) provides:-

“s. 56 (2). The Governor General shall -

(a) cause the result to be published locally in such manner as to him may seem appropriate; and

(b) cause the result to be published as soon as may be in the Gazette.”

And section 81 (1) is as follow:-

“81. (1) A petition complaining of an undue return or undue election of a member of the National Parliament hereafter called an election petition, may within one month from the date of the publication, in pursuance of section 56(2) (b) of this Act, of the result of the election in relation to an electoral constituency be presented to the Court in its civil jurisdiction by any one or more of the following persons, that is to say -

(a) some person who voted or had a right to vote at that election for the electoral constituency to which the petition relates; or

(b) some person who claims to have had a right to be returned or elected at such election; or

(c) some person who alleges himself to have been a candidate at such election.”

The contention by Mr. Radclyffe on behalf of his clients and supported by Counsel for all the other parties in the other petitions dwelled on the meaning to be given to the word “publication” or “published.” The argument by Counsel now before the Court is that the result of the general election was not published on 12 September 1997 despite the fact that the Gazette containing the result bears that date. Reliance was placed on the letters dated 11 November 1997 and 12 November 1997 from the General Manager of Solomon Islands Printers limited exhibited to the affidavits of Mr. A. Radclyffe and of Mr. Nori respectively. Those two letters bear exactly the same contents and as they are important in these proceedings I also set out the contents of one of them:

“Re: 1997 GENERAL ELECTION RESULTS IN THE GAZETTE

Your letter of 10th November 1997 refers. This is to confirm that the Gazette which contains the 1997 General Elections was received on the 15th of September.

It went through the normal production process which include:

typesetting.

Proof reading and acceptance by the Prime Ministers Office

Went in to the press on the 1st October 1997

Binding

Finishing

And was dispatch to Government Ministries on the 13th October.

Yours faithfully

Patteson Arish

General Manager.”

Obviously in the light of that letter Counsel strongly argued that the earliest date on which the result could be said to be published was 1 October 1997 and arguably it could also be said to be the 13 October 1997.

It was further argued that the reason for publishing the result of the general election in the Gazette was to notify the public of the result and this could not have been on 12 September 1997 at which time the result of the general election had not been published.

Mr. Nori posed the question: When was the Government Gazette dated 12 September 1997 made known to the public? He argued that it was not made available to the public until 15 October 1997. Mr. Tegavota reiterated that contention by urging that “publication” occurred when the result was made known to the public. Mr. Teutao also reiterated the importance of the notion of “publication” which he argued, must include the element of knowledge of the matter published. Mr. Samuel supported the contention in favour of the importance of “publication”. He referred to section 19 of the Interpretation and General Provisions Act 1978. I shall also set out that provision before proceeding further with this matter. Section 19 reads:

“s. 19 (1) Every Act made after this Act shall be published in the Gazette.

(2) A provision of an Act, made after this Act, comes into operation on the date of the publication of the Act in the Gazette or, if it is provided that the Act (including the provision) or the provision is to come into operation on some other date, on that other date.

(3) Any provision of an Act, made after this Act, which makes provision with respect to the coming into operation of all or any of the other provisions of the Act comes into operation on the date of the publication of the Act in the Gazette.

(4) When a provision of an Act comes into operation on a particular day, it is in operation as from the beginning of that day.”

It will be observed that no dispute has been raised as to the requirement of the result of the general election to be published in the Gazette as required by Section 56(2) (b) of the National Parliament Electoral Provisions Act. Under that section H.E. The Governor-General is required to do two things; firstly, H.E must cause the result to be published locally in such manner as to him seem appropriate; and secondly cause the result to be published as soon as may be in the Gazette. The first method of publication of the result of the election is “in such manner” as to H. E seems appropriate. His Excellency may chose to do so in writing or orally through radio broadcast. It is entirely up to His Excellency. The second method of publication required by paragraph (b) of subsection (2) is specific. It requires His Excellency to cause the result to be published “in the Gazette”. It is the second method of publication of the result of the election that links to the time period within which to present election petitions to the Court under section 81 (1) of the Act. When sections 56(2)(b) and 81 (1) are read together, the issue to be determined by the Court, in so far as the present case is concerned, is whether the election petitions were presented to the Court within one month from the date of the publication “in the Gazette” of the result of the election. For that is the clear requirement of those two sections.

It is important to observe the words used in section 81 (1) which specifically refers to section 56(2) (b) in fixing the time limit for the presentation of an election petition to the Court. This is no accident that the words “in pursuance of section 56(2) (b)” are used in section 81 (1) instead of referring to the whole of section 56(2). If parliament were to simply refer to the whole of section 56(2) so that whatever date and however the result of the election was published pursuant to paragraph (a) of section 56(2), I have no doubt it would say so.

I think it is also worth noting that Parliament in its wisdom provides for the two methods of “publication” of the result of the election in section 56(2): publication at large “in whatever manner” (paragraph (a)) and publication “in the Gazette” (paragraph(b)). The essence of this provision providing for the two methods of publication is to ensure wide publicity of the result of the election so that the public and as many people as possible may be able to know the result of the election. But for those who wish to exercise their right to challenge the result of the election, section 81 (1) allows them to do so and in so doing it lays down the condition that they must do so within one month from the date of the publication “in the Gazette” of the result of the election.

Section 81 (1) is clear and unambiguous. To the words ‘within one month from the date of publication, in pursuance of section 56 (2)(b) of this Act’ there is no qualification and this Court will not read words into them to tone down Parliament’s intention as clearly demonstrated by those words. The Court may be seen as legislating for itself if it introduces any qualification into those words. See Crom -v- Samuels (1876-1878) 2 - [1877] UKLawRpCP 67; 3 C.P.D. 21.

Let me turn to the argument that the date of publication in the Gazette is not crucial but rather it is the date of publication which was, as argued, the date when the public was made aware of the Gazette that must be regarded as the date of publication. For how else can a petitioner know when the time starts to run against him. That is an attractive argument: It is based on the reasoning that time begins to run against a petitioner when he becomes aware of the publication of the election result. Attractive though it may be, I must accept the language used by Parliament and to construe that language to meet the intention of the legislature.

It is important to bear in mind that when the result of the election was declared, there were 50 successful candidates and more than 200 candidates who would be the potentially aggrieved ones. Each of those 200 or so were entitled to present an election petition. In fact nominators and Voters are potential interested parties also. To follow that with the argument by Counsel that the date of publication of the result of the election must be the date when the result of the election was made known to the public which includes all the potentially aggrieved candidates, one will immediately come to appreciate the difficulty such an argument will create if it is accepted. When will the public and in particular, the potentially aggrieved candidates, know the result was published? Counsel suggested 1 October 1997. The other suggestion is 13 October 1997. The public would not know those suggested dates unless they enquire, with the printer. Counsel would not suggest those dates unless they enquire, which they did, with the printer. Is it therefore to be the case, that whenever an Order or Notice is published in the Gazette, an aggrieved or interested party would enquire with the printer when the Gazette was printed and published so as to take the necessary action?

Now it seems to me to be extremely improbable that Parliament intended that the date when an election petition may be presented is the date on which each of the potential aggrieved candidates is brought to his knowledge of the existence of the publication of the result in the Gazette. It may well mean that for some of the potentially aggrieved candidates they may not know or be aware of the Gazettal publication until weeks or months later and on the argument presented to the Court, that may well be the case. What if time does not begin to run until all interested parties have been given notice of the publication in the Gazette and due to some administrative problem that notice was not communicated to, all those interested parties? In my view this would produce a bizarre consequence which Parliament never intended.

Much had been said about the letter from the General Manager of Solomon Islands Printers Limited. In fact the central argument on the question of “publication” stems from the response to solicitors letters to the General Manager of the Printing Company. What is surprising to note is that the Issue No. 44 of the Solomon Islands Gazette was published and dated 12 September 1997 when in the General Manager’s letter he stated that Gazette containing the 1997 General Election was received by his company on 15 September 1997, sent into printing on 1 October 1997 and dispatched to Government Ministries on 13 October 1997. It is therefore not surprising that Counsel for the parties based their argument on the contents of the General Manager’s letter. While the contents of the General Manager’s letter might explain why the printing and dispatching of the Gazette was delayed, it does not explain why the Gazette bears the date Friday 12 September 1997 when it was said that the Gazette containing the 1997 General Election results was received on 15 September 1997. Perhaps we shall know in due course.

Whatever that explanation may be, it cannot supercede the clear language used by Parliament in Sections 56(2) (b) & 8(1) of the National Parliament Electoral Provisions Act. It must be pointed out that a copy of the Gazette containing any notice or publication inserted therein in pursuance of an Act is evidence of the facts stated in the notice and the production of the copy of the Gazette containing that notice is conclusive evidence of the validity and date of such notice. See Phipson on Evidence p. 511 where it is also pointed out that the Gazette is prima facie evidence of any proclamation or order or regulation. This can be done simply by the production of a copy of the Gazette containing the proclamation, order or regulation. No proof is required to certify the truth of any copy or extract from the proclamation, order or regulation. See s.2 of the Documentary Evidence Act, 1968 as amended by the Documentary Evidence Act, 1882. These Acts of UK Parliament are of general application and are applicable in Solomon Islands at the present. See Schedule 3(1), Constitution.

It thus makes the point clear that the Gazette is prima facie evidence of public matters inserted the Gazette in pursuance of an Act and operative from the date of the publication of the Gazette. This is shown clearly in the case R-v- Governor of Lewes Prison, 33 TLR 222. In that case a proclamation of martial law in Belfast was issued in London and published in the London Gazette on 26 April 1917. It was not published in Belfast until 9 May. It was held that although not published in the Belfast Gazette until 9 May, it became operative on 26 April, the date of the publication in the London Gazette.

To return to the situation in this case, the word “publication” is not defined. However in view of the express languages of sections 56(2) (b) and 81 (1), “publication” cannot be construed in isolation. It is closely linked to “the Gazette” which words are defined under section 16 of the Interpretation & General Provisions Act to mean “the Solomon Islands Gazette.” Thus the period within which to present an election petition under section 81 (1) must be construed to mean “within one month from the date of the publication in the Solomon Islands Gazette” of the result of the election. The date of the publication of the result of the election in the Gazette in this case is 12 September 1997 and not any other dates as suggested by Counsel. That is the intention of that provision and must be accordingly construed.

I am mindful of the fact that the construction I place on the words in sections 56(2) (b) and 81 (1) of the Act may produce hardship or certain practical difficulty. But I cannot see how I escape from the plain words of those two sections. But that is a matter not for the Court but for the legislature. I have no power to read into those two sections words which may avoid hardship and practical difficulties. As pointed out in In Re Application by The Minister For Western Provincial Affairs (1983) SILR 141, this court interprets; it does not legislate.

Before leaving this case, I make a brief remark on the Notification of Election Results from Electoral Commission and published in the Solomon Voice on 3 October 1997. That Notification reads:

“Notice to the Public that the results of all Electoral Constituencies that were contested on 6th August 1997 have now been Gazetted..

Any wishing to challenge the proceedings or any irregularities of the Election may do so.

Election Petitions can be lodged to the High Court of Solomon Islands between 2nd October 1997 and 31st October 1997.

Any Election Petitions lodged after 31st October 1997 will not be accepted.”

With respect that Notification was ill-conceived. There is no right in the Commission or whoever issued that Notification to advise would-be petitioners of some other time within which to present election petitions. The limit is fixed by law and it is for the High Court to decide which petition is filed in time and which is out of time. That Notice in fact adds nothing except confusion.

In the circumstances and in the light of what I have stated, I come to the firm conclusion that in law, the date of the publication in the Gazette of the result of the election is 12 September 1997 and all election petitions filed outside the one month period calculated from that date are out of time. Accordingly they are all struck out.

Rule accordingly.

Sir John Muria
CHIEF JUSTICE