Anisi v Aumanu [1998] SBHC 93; HCSI-CC 214 of 1997 (8 June 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 214 of 1997

JASPER TAGINI ANISI

-v-

STEPHEN SANGA AUMANU AND OTHERS

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 214 of 1997

Hearing: 5th June 1998
Ruling: 8th June 1998

Francis Waleilia for the Petitioner
Andrew Radclyffe for the Respondent
Attorney General as Amicus Curiae

RULING

MURIA CJ: This is an application by the Petitioner for extension of time to file affidavit evidence to be used at the hearing of the petition as directed by the court. The direction of the court was contained in the order granted by the court on 3rd December 1997 whereby the court directed that the Petitioner be allowed to adduce evidence by affidavit where necessary. Such affidavit to be filed and served on the respondent within 4 weeks from 3rd December 1997. To date no such affidavit has been filed by the Petitioner.

The Petitioner filed his petition on 5th September 1997 alleging mal-administration of the electoral process as well as alleging malpractices and corrupt practices against the first respondent. I do not need to go into the details of the allegations at this stage, suffice it to say that there are allegations of impersonation of voters, corrupt practice of inducing voters, influencing voters or preventing voters not to vote and bias toward the respondent. In the Course of the preliminary hearing on the 3rd December 1997, the Petitioner sought and was granted the order enabling him to adduce affidavit evidence at the trial.

The Petitioner does not dispute that the order directing him to file and serve the affidavit evidence was made at his request on 3rd December 1997. It is also not disputed that the Petitioner has not filed any affidavit todate which is now six (6) months since the order was made. The only reason given by the Petitioner for not doing so, is that the witnesses are allover the place, some in Malaita and some on Guadalcanal. The affidavits if filed, argued Mr. Waleilia for the Petitioner, would help in the speedy and effective disposition of the case.

I think it is true that if the affidavits are obtained and used at the hearing of the petition, it would greatly assist the speedy determination of this petition. The question however is not whether the affidavits should be filed or not but rather whether the Petitioner should be allowed further time to file affidavits from potential witnesses which so far he has not yet done despite being allowed to do so on 3rd December 1997. Even if the court refuses to allow extension of the 4 weeks period set by the court, the Petitioner can still come to court and adduce evidence orally in support of his petition. In that sense, the failure to file and serve affidavit evidence as directed by the court, cannot be used as a basis for striking out the petition.

The only matter for the court to consider is whether there is basis justifying the exercise of its discretion to grant the extension of time sought. There is no evidence to show why the Petitioner has not been able to obtain affidavits from his witnesses or even one affidavit from one of his potential witnesses. The fact that his potential witnesses are in Malaita and Guadalcanal, I would have thought, has been well known to the Petitioner since the filing of his petition. So that he cannot find much support in that argument in this application.

I agree with the learned Attorney General that it is in the public interest that election petitions should be disposed of without delay. However the paramount consideration when determining a litigation brought before the court is the attainment of a just solution to it according to law. In which case, “just solution” must mean just solution taking into account the interest of both the Petitioner and Respondent together with the nature of the allegations contained in the pleadings.

I agree also that the delay here, as raised by Mr. Radclyffe, is a lengthy one. A delay of six months to do what was directed to be done at the request of the applicant/petitioner himself cannot be overlooked. It is certainly something which the Petitioner cannot benefit from.

I have to bear in mind, of course, that if the Petitioner is not allowed to bring affidavit evidence in this matter, we would end up having to hear a considerable number of witnesses orally, which may be time consuming and may not be in the interest of the speedy and efficient disposition of the case.

The power to extend time has been provided for under the Election Petition Rules. In addition, there is the general power in the court to grant extension of time under Order 64 of the High Court (Civil Procedure) Rules which must be interpreted widely to ensure that the parties have a just outcome of their dispute according to law: Reef Pacific Trading Limited -v- Island Enterprises Limited (1995) Civ. App. No.1 of 1992 (C.A.). I bear in mind all that had been urged upon the court by Counsel for the Respondent together with what Counsel for the Petitioner had submitted. Putting them all in the balance, I feel it tilted in favour of exercising the court’s discretion in favour of the whereabouts of his witnesses. He has had six months to do that and as such I do not think he should be allowed a further four (4) weeks to do that.

I exercise the court’s discretion and grant to the Petitioner extension of time to obtain and file affidavits in this case. That extension will only be for 14 days from today. There will be no further extension thereafter.

This Petition is to be listed for hearing at the expiration of that 14 days.

No order for costs.

(GJB Muria)
CHIEF JUSTICE