Saemala v Ulufa'alu [1998] SBHC 7; HC-CC 251 of 1997 (2 February 1998)

HIGH COURT OOMON ISLANDS

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Civil Case No. 251 of 1997

FRANCIS JOSEPH SAEMALA

v

p class="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> BATHOLOMEW ULUFA'ALFA'ALU

High Court of Solomon Islands

Before: Lungole-Awich, J
Civil Case No. 251 of 1997

Hearing: 30 January 1998
Judgment: 2 February 1998

Counsel: R Teutao for the petitioner;
A Radclyffe for the respondent,
Primo Afeau, Attorney General: Amicus Curae

Rule 7 of Electiontion Rules, 1976

JUDGMENT

(LUNGOLE-AWICH, J): The petitioner, Mr. Francis Joseph Saemala was a candidate in the general election held on 6 August 1997, in the Aoke Langa Langa constituency. The respondent, Mr. Batholomew Ulufa’alu was also a candidate in the election in the same constituency. The votes polled was stated as 1341 for the respondent and 1077 for the petitioner. The respondent was declared elected. He subsequently became the Prime Minister of Solomon Islands and immediately got to work. He travelled to Japan on official business, at 2 am on 11.10.97 returning on 25.10.1997.

On 10.10.1997 at 3:15 pm, Memala presented an election petition complaining abou about irregular and undue election of the respondent. He prayed that the court may determine and declare that he was the duly elected candidate. The allegations in the complaint may be summarised as, improper compilation of voters register, non entitled people voting, corrupt practices and bribery and undue influencing of voters. Despite some of the allegations being complaint against the Registration Officer and the Returning Officers and their assistants, the respondent did not join the Attorney General, in the petition on their behalf. Fortunately learned Attorney General Mr. Primo Afeau attended in person. Rule 27 of the Election Petition Rules (EPR) requires Attorney General to attend by himself or by person he has authorised, at the hearing of an election petition.

The petition was presented to the court in tef section 81(1) of the National Parliament Electoral Provisions Act, No. 5 of 1980. The section requires petition to be presented to the High Court within one month of the date of publication of the result. In this case it was presented on 10.10.1997, in time and Mr. Saemala was entitled to present it as he was a candidate and moreover he claims to have the right to "be returned or elected." Mr. Saemala duly signed the petition and gave a post office box number as his address (for service I suppose). It is important in understanding the reasons given in this judgment that the full text of section 81(1) is set out, I do so:

81. (1) A petition complaomplaining of an undue return or undue election of a member of the National Parliament hereinafter 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-

ass="Mss="MsoNormal" style="margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> a) some personvoted or had a right to voto vote at that election for the electoral constituency to which the petition relates; or

b) some person who claimsave had a right to be returreturned or elected at such election; or

c) some person who alleges to have been aeen a candidate at such election.

(2) No petition shall tered by the Court in its cits civil jurisdiction if, in the opinion of the Court, such petition is frivolous or vexatious and any election petition may be summarily dismissed by the Court if, in the opinion of the Court, there are insufficient grounds to warrant the hearing of such petition.

After presentation of petition to the Court there are rules of procedures to be foll followed in the steps leading to the hearing and determination of the petition. The National Parliament Electoral Provisions Act authorised the making of the rules of procedure and left it to the Chief Justice to formulate the rules "from time to time", see section 83 of the Act. The Rules made by the Chief Justice in 1976 together with Practice Directions (No. 1 of 1993) are the rules to be followed to date.

It would appear that after aemala properly presented his petition to the court hurt he did nothing further to effect the procedures leading to court hearing. If he did anything he has not stated so anywhere in the papers so far on court file. Two important actions required of him, a petitioner, were to, (1) make available security for costs of the case, in case he loses the petition and (2) to serve the petition and notice about security on the respondent within 10 days excluding the day the petition and security were presented to court. He was to serve the petition personally on Mr. Ulufa'alu, the respondent. Those requirements are in rules 12, 13 and 14. I set them out here:

12. The petitioner shall give security for costs to t to the satisfaction of the Registrar either by deposit of an amount of not less than fifty dollars or otherwise, and no petition shall be entertained until such security is given.

13. The time for serving the petition upon the rehe respondent and for giving notice of the nature of the security shall be ten days exclusive of the day of presentation.

14. Every petition and notice of the nature of thef the security shall be served by the petitioner on the respondent. The service of a petition shall be personal on the respondent unless on an application made to him not later than five days after the petition is presented, on affidavit showing what has been done, a Judge shall be satisfied that all reasonable effort has been made to effect personal service and cause the matter to come to the knowledge of the respondent, in which case the Judge may order that what has been done shall be considered sufficient service, subject to such conditions as he may think reasonable, or he may make an order for substituted service in the manner authorised by the Rules of the High Court.

As I have said, Mr. Saemala seemed to have done nothing else after presenting the pete petition to court and has not told the court about any effort he may have made in attempt to follow the rules of procedure. He has not filed affidavit sworn by him, may be affidavit from him would have explained why things remained that way. Curious though, he filed affidavit of Mr. Patteson Pou, the Office Manager of the High Court, in which Mr. Pou deposed that at the request of Mr. Joses Sanga, Secretary to the Prime Minister, he, Mr. Pou, sent by facsimile, a copy of the petition to Mr. Sanga who was with the Prime Minister in Japan. Mr. Pou's short affidavit reads:

"IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 251 of 1997

BETWspan>:

FRANCIS JOSEPH SAEMALA
Petitioner

class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> BARTHOLOMEW ULUFA'ALU
Respondent

ass="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> AFFIDAVIT

I, PATTESON POU o Box G21, Honiara make oath oath and say as follows:-

1. I am the Office Manager of the High Court of Solomon Imon Islands.

2. That on the 14^th day of October 1997 1 received a telephone call from the Secretary to the Prime Minister, Mr. Joses Sanga, who was with the Prime Minister, the Respondent, in these proceedings at the time in Japan. In our telephone conversation Mr. Sanga advised me that the Prime Minister wanted me to send him a copy of the petition by facsimile and upon that advice I sent a duly stamped copy of the petition by facsimile to Mr. Sanga in Japan who would then deliver the copy to the Prime Minister.

Sworn by the above named
Deponent at Honiara

this 16^th day of January 1998. (Signed)

Before me:
Commissioner for Oaths: (signed)"

On the facts I have stated, Mr. Ulufa'alu, the respondent, has apps applied on 15.12.1997, to court for order of court to strike out the petition of Mr. Saemala on the grounds that:

"a) the petition was not served on the the respondent in accordance with Rule 14 of the Election Petition Rules 1996;

lass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> b) the petition was not served within ten dayn days of the presentation of the petition in accordance with rule 13 of the said Rules."

Striking out the petition ofse would effectively dismisismiss the petition. The respondent also asked for costs to be paid by the petitioner. Surprisingly counsel for the respondent did not take issue on there being no indication that the petitioner has given security for costs following the presentation of the petition. Maybe the petitioner provided the security required, but there is no record of it on the case file.

In reply to the appion of the respondent for order to strike out the pet petition, the petitioner asked that the application be refused and that the respondent is to pay the costs. In addition he applied to court for order of court enlarging time required for service in this case so that the petitioner may now serve the petition though late. In the alternative the petitioner requested that the court may regard sending a copy of the petition by facsimile to Japan by the Office Manager as good service. He described it as "substituted service." He certainly meant order for service outside jurisdiction.

The two applications in fact do raise the same issuesaw, although in each each application the court is urged to reach opposite conclusions. It is implicit from the affidavits filed and from submissions of counsel that Mr. Saemala did not serve a copy of the petition and notice of security for costs on the respondent at all, let alone personally, within ten days. So the issue is whether on the facts of this case the court should dismiss the petition at this stage because Mr. Saemala has failed to serve the petition and notice of security or the court may waive the requirements of service, condone the failure and allow Mr. Saemala's petition to proceed to hearing. I have checked the various relevant provisions of legislations cited and not cited in court and case law on the issues. For purposes of consideration of the applicable laws, the issues may be considered under these heads:

class="Mss="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> 1. Whether be Mr. Saemala has failed toed to serve the petition and notice of security for costs in accordance with rule 13 of EPR, his petition be struck out or the court may regard his actions as sufficient under rule 14, so that the court may exercise discretion and, (a) order that what he has done though short of the requirements (under rule 13) may now be regarded as sufficient service, the rest of the proceedings may continue, or, (b) order that because of difficulties encountered in serving the documents, different manner of service, "substituted service" may now be carried out and the proceedings proceed thereafter in the normal way.

2. Whether or not, not, under rule 41 of EPR, given the facts of this case so far, there are good reasons; "good cause" for the court to enlarge the 10 days required for service to enable Mr Saemala to now duly serve the petition and notice of security. I must emphasize that rule 41 requires that there must be found in the facts of the case, "good cause."

3. Whether or not, by authority of Order 69 rul9 rule 1 of the High Court (Civil Procedure) Rules non compliance with rule 13 of EPR cannot render the whole proceedings void unless the court orders or whether despite the non compliance with rule 13 of EPR, the court may use its inherent discretion and waive the requirements under rule 13 of EPR.

Issue 3 was formulated bon the submission of learned counsel Mr. Teutao, coun counsel for the petitioner urging the court to exercise discretion in terms of Order 69 rule 1 of the High Court (Civil Procedure) Rules and the common law. He submitted that the court should consider those heads of law because section 83 of the National Parliament Electoral Provisions Act allows the court to fall back on its usual powers in hearing civil cases. That submission does not deserve much time. There is specific provision, namely rule 41 of EPR in this case, about irregular service, that equates with the general powers of the court in other civil cases. The power of court is adequately covered by the specific rule of the EPR, rule 41, there is no need to resort to section 83. Learned Attorney General Mr. Primo Afeau made the point in his submission and learned counsel Mr. Radclyffe, for the respondent rightly echoed it.

For issue 1 to be decided in favour of Mr. Seaman, he must show that he he attempted to serve the petition, but that what he did was short of service personally on the respondent or that the service was done later than 10 days after presentation of the petition and that there are reasons for his attempts to be accepted by court and regarded as regular service, or alternatively the court may, given the difficulties he has encountered, now order that some other manner of service other than personal service, within ten days, be carried out. Application under rule 14 must be made within 5 days. Mr. Saemala has simply not put forward a single fact about what he had done about service, not even about whether he knew or had reason to believe that the respondent was out of the country. Court cannot assume such facts, fortunately for him, that was admitted. If he did anything about service then his case was badly presented because nowhere in the court papers has it been mentioned that he did something about service. I need not consider the time limit of 5 days to make the application under rule 14 of EPR because there is no ground for the application under rule 14. His application for orders of court under rule 14 of EPR fails and is dismissed.

Issue 2 is an involved one. It is based on rule 41 of EPR; the ruhe rule reads:

41. The Court may for good cause enlarge any period of time prescribed by these Rules.

p class="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> I start the important point submitted so clearly by Attorney Generaeneral. I accept his submission that the intention in the National Parliament Electoral Provisions Act is to ensure that election petitions are presented to court without delay and that the court disposes of election case quickly. In support for that proposition, he cited section 81(1) which requires that petition be presented to court within one month of the publication of results, then section 82(3) that determination of the High Court shall be final; not appealable and finally rule 13 of EPR made by the Chief justice which requires ten days for service of the petition. Attorney General submitted that the sections and rule bear out the intention to bring election cases to speedy end. I entirely agree with him; there is a deliberate scheme, running through the sections and rule cited, to speed up the despatch of election cases. He further submitted that the reason for the speedy conclusion of election petition cases is public interest in resolving election petition speedily so that those who are determined by the court to be correctly returned as elected may get on with their important duties in parliament and or in government. He used the expression, "it is in the public interest to have stable government." He was right; that is the view expressed by courts in many countries and by publicists. Several legislations of other countries suggest the desire to conclude election cases early. See for instance the Representation of the People Act, 1983 of England. Thereunder, election petitions must be filed within 3 weeks. There is a special court and appeal from it is by leave and only on point of law. There is no further appeal.

Attorney General urged the court not to extend time unless the reason for so so doing is greater than the public interest reason he stated. There is much merit in that submission and I accept it. He further said that the greater reason has to be provided by the petitioner and that in this case the petitioner has not provided the greater reason. I do not accept that last part of the submission. The petitioner usually provides the reason, but not always. Under rule 14, yes, the petitioner is to provide reason, that reason being what he had done; it is a prerequisite. Rule 41 does not include that prerequisite; it simply requires court to look for, "good cause"; it may be said that the prerequisite therein is good cause, and may be the good cause is provided by the petitioner, but I do not think the court should ignore other good causes not provided by the petitioner. In my view there are reasons why rule 41 should not be read as carrying on further the purpose or reasons in rule 14. Even the fact that they are so far apart in numbering suggests so. Rule 14, in my view is intended to provide for different circumstances from those covered by rule 14. Despite the Attorney General pointing out rule 41 and Mr. Radclyffe echoing it in his replying submission, Mr. Teutao for the respondent did not include it in his submission or reply.

In considering what amounts to good cause under rule 41, and whether there ha has been any good cause for the court to exercise discretion to enlarge time, I had to look at all the facts relevant whether they were provided in affidavits filed, revealed in cross-examination or conceded. Some of the important facts are: Mr. Saemala prepared a long and detailed petition and filed on 10.10.1997 at 3:15 pm, within the time limit for filing. Then he sat back. It is not on the case file that he provided security for costs. The respondent who is the Prime Minister, for good reason, left for Japan on important official business about 2.00 am on 11.10.1997; he returned on 25.10.1997, which date was after the ten days allowed for service. On 14.10.1997, may be fortuitously, a copy of the petition was sent by facsimile, to Japan to the Secretary to the Prime Minister who had asked for it. The respondent, the Prime Minister, had not asked for it. He saw the copy in Japan, but did not read it because of his busy schedule. It was not that urgent in Japan, one would suppose, and in any case he would have time to attend to it when he returned to Solomon Islands. He has since found time and has read it. Mr. Saemala did not pursue service after the respondent had returned to Honiara. From the cross - examination of the respondent, Mr. Saemala seemed to have believed that the respondent had already got a copy of the petition. Is there good cause in these facts to exercise discretion under rule 41, to enlarge time now to allow late service?

I must state here that I am in no way suggesting the fortuitous event that resulted in the respondent receiving a copy of the petition and reading it is service of the petition; it was irregular and no service at all. See the case of Abu Dhabi Helicopters Ltd -v- International Aeraio Plc [1986] l WLR 312. In that case, the plaintiffs issued a writ of summons against the defendant and sent a copy to the defendant "for information only." The defendant filed acknowledgment. The writ was generally endorsed so after long waiting the defendant applied to compel the plaintiffs to serve statement of claim. The registrar/master dismissed the application, holding that the writ had not been served so that statement of claim could be compelled. On first appeal the Judge allowed the appeal, but the Court of Appeal restored the master's decision. In the present case where there has not been acknowledgment and the transmitting of the petition was not the act of or by instruction of the petitioner, it cannot be suggested that there was service.

In evaluating the above facts to see whether there is good cause in them, I , I cannot disregard the view of the Court of Appeal of Solomon Islands about the use of coercive power of the court in compelling compliance with rules of court. In Leslie Allison -v- Monique Medlin Civpeal Case No. 7 of 7 of 1996, McPherson and Gamey JJA quoted with approval the statement of Lord Atkin in Evans -v- Bartlam [1973] AC 473 that, "unless and until ourt has pronounced a judgmjudgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure." The Court of Appeal in that case set aside a judgment entered because of default in properly serving. The case is not similar to this but it illustrates that the Court of Appeal would not take too hard a line in enforcing the rules of court procedures. There are several case authorities that support the view that coercive power of the court in compelling compliance with court rules should be used sparingly, but in them Judges have been quick to warn that rules cannot be easily faulted with impunity and in many cases default led to dismissal of the claim, defence or pleading. Time does not allow for examination of the cases.

In a most recent case, Maesua -v- Charles Dausabea Civil Appeal Case Nose No. 14 of 1997, the Court of Appeal of Solomon Islands held that time to file petition could not be computed from the date stated in the gazette as the date of publication of the results when it was shown that the results were forwarded to the publishers much later and the gazette was therefore published much later than the date stated therein. Several petitioners who would otherwise be time barred were held to have filed their petition in time. The Court of Appeal was considering section 81(1) of the National Parliament Electoral Provisions Act, not just rules of procedure. The case illustrates the trend not to be too hard about non compliance due to factors beyond the defaulter.

I have come to the conon that on the totality of the facts of this case, go good cause exists for the court to exercise discretion under rule 41 of EPR. It was an important fact that the respondent was away in Japan, albeit on important business of his office, during most of the days when service could be effected personally on him. I have also considered that public interest will be served better by allowing the allegations made to be proved or disproved, other than when the case is terminated by the coercive power of the court to compel compliance with its rules of procedure. I am of the view that failure to comply in this case was not contumelious; it was more a question of lack of knowledge of the rules of procedure though that is not excuse. The most important fact in my mind has been that the respondent has not so far suffered prejudice in conducting his defence, except for the costs of this application, and is unlikely to suffer any in future as the result of the court exercising its discretion under rule 41. The respondent has read the petition even if that was not the result of service. No delay has since arisen because of the non service of the petition and notice of security. I know from the court that all election petitions filed following the general election held on 6.8.1997 have not yet been given dates for hearing, they are right now going through the preliminary hearing stage required by Practice Direction No. 1 of 1993. I exercise the court's discretion by authority of rule 41 of EPR and enlarge time required in this case, to provide or serve notice of security for costs and to serve the petition of Mr. Saemala filed on 10.10.1997. The order, however, must ensure that the respondent does not suffer the costs of the exercise of the court's discretion to enlarge the time.

I accordingly order that:

1. The application of the respondent urging the court to strike out the petition of Mr Saemala is refused and dismissed.

2. The application of Mr. Saemala that time be enbe enlarged is granted under rule 41. He is to-

lass="MsoNoMsoNormal" style="margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> 2.1. Provide security osts if he has not done so.e so.

2.2. Serve on the solicitor of the respondent a ct a copy of the petition and notice of security.

2.3 Actions in 2.1 and 2.2 to beied out within 2 days of toof today.

Delivered and Dated this 2^nd day of February 1998

At the High Court Honiara

Sam Lungole-Awich
JUDGE