Kengalu v Holosivi [1998] SBHC 99; HCSI-CC 208 of 1997 (22 June 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 208 of 1997

JOHNSON KENGALU

-v-

DAVID HOLOSIVI & ALBERT ALICK NORI

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 208 of 1997

Hearing: 8th June 1998
Judgment: 22nd June 1998

Andrew Radclyffe for Petitioner
Reginald H. Teutao for First Respondent
John Hauirae for Second Respondent

JUDGMENT

MURIA CJ: This is an election petition brought by the petitioner pursuant to section 81 of the National Parliament Electoral Provisions Act 1980 as amended and Rule 4 of the Election Petition Rules 1976 (hereinafter referred to as “the Act” and “the Rules” respectively). The petitioner, Mr. Johnson Kengalu, was a candidate for the Ma1aita Outer Islands Constituency at the last General Election, held on 6th August 1997. The first respondent, Mr. David Holosivi, who was also a candidate, was elected on 154 votes over his next rival, the petitioner who polled 118 votes, a majority of 36 votes. The second respondent was the Returning Officer who was made a party to these proceedings because of allegations of breaches of the statutory provisions relating to the conduct of the election.

The petitioner raised three grounds in his petition. However at the hearing, only two grounds were pursued, namely Grounds 4 and 5 in the petition:

“4. And your petitioners says that the first respondent was not eligible to stand as a candidate on the following grounds:

(a) One of the first respondent’s nominators, Shadrach Asua, also nominated one of the other candidates in the said Constituency namely Abraham Kapei;

(b) The said Shadrach Asua’s nomination paper for Abraham Kapei was delivered to the second respondent before Shadrach Asua’s nomination paper for the first respondent;

(c) As a result of (a) and (b) above the second respondent should not have accepted the nomination paper of the first respondent; and

(d) The nominator’s subscription on the first respondent’s nomination is null and void pursuant to section 25 (4) of the National Parliament Electoral Provisions Act 1980 (“the Act”).

5. Your petitioner claims that the second respondent was in breach of section 28 of the Act in that he failed to publish within the prescribed period a list containing the full names and addresses and descriptions of the candidates and of the persons by whom they were nominated at Pelau, being the location of one of the polling stations. The said list was not displayed until the evening of 4th August 1997.”

The allegations contained in paragraph (6) of the petition regarding the lack of proper security at polling stations and for the ballot boxes were abandoned. The main contention upon which the petitioner however, now rests his case is that contained in paragraph (4) of his petition. The gist of that contention is that the first respondent had not been validly nominated by reasons of a breach of section 25(4) of the Act. I shall return to this ground of the petition later. For now I shall consider first the other contention raised in ground (5) of the petition.

However, before I do that, I feel I should set out some of the facts that are not in dispute. There is no dispute that one of the first respondent’s nominators was “Mrs. Shadrach Asua” who was and still is Mr. Shadrach Asua’s wife. It is also not disputed that her home name is “Stella Apoe”, the name under which she was registered as a voter, Reg. No. 32/1/48, in the Malaita Outer Islands Constituency during the last General Election. It is also not disputed that it was the husband, Mr. Shadrach Asua, who filled in his wife’s name and details in the Nomination Form on her behalf. He also signed the nomination form on her behalf. It is also not in dispute that the Returning Officer only managed to publish list of candidates and nominators on 4^th August 1997 because of the delay in getting to Pelau by ship. Those being some of the undisputed facts in this case, I shall now turn to Ground (5) of the petition.

In Ground(5), the petitioner claims a breach of section 28 of the Act in that the second respondent, the Returning Officer, failed to publish within the prescribed period a list containing the full names and addresses and descriptions of the candidates and the nominators at Pelau. Section 28 provides:

“The Returning Officer shall within forty eight hours of the expiry of the time allowed for delivery of nomination papers under section 24(1)(b) of this Act cause to be published at such place within the electoral constituency as he considers expedient, being the place of which notice has been given under section 24(1)( c) of this Act, and in such manner as he may deem appropriate, a list containing the full names, and the addresses and descriptions of the candidates for that electoral constituency and of the persons by whom they were nominated.”

The list containing the full names and addresses and descriptions of the candidates for the Malaita Outer Islands Constituency and of the nominators were published at Pelau on 4th August 1997. This was two days before the General Election. There was evidence that shipping which is the only form of transportation to Pelau was a problem at the time. The only available transport was the MV Leili which left Auki on 3 August 1997 and arrived at Pelau in the afternoon on 4 August 1997. Upon arrival by MV Leili, the Returning Officer proceeded to put up the notices containing the names, addresses and descriptions of the candidates and of their nominators. I feel that the practical difficulty over transportation to that part of Malaita Province cannot be overlooked. I accept the Returning Officer’s evidence in this regard. So much so that in my opinion it would be unreasonable to hold against the Returning Officer any non- compliance with section 28 of the Act in the present case. However, even if section 28 had not been complied with, and there is evidence to suggest it so, it would be a non-compliance which, in my judgment, cannot be said to be not in accordance with the principles of the Act nor can it be said to be such that would affect the result of the election. Section 9 of the Act, which provides:

“No election shall be invalid by reason of non-compliance with this Act if it appears that the election was conducted in accordance with the principles of this Act and that the non- compliance did not affect the result of the election”

will operate in this case to save the non-compliance of section 28 relied upon by the petitioner. I so hold in this case.

I now turn to the ground alleged in paragraph (4) of the petition. As I have already mentioned, this is the main ground relied upon by the petitioner and it rests mainly on the alleged breach of section 25(4) of the Act. I set out the whole provisions of section 25 in order to appreciate the petitioner’s argument:

“25 (1) Any person submitting himself for election, hereinafter referred to as a candidate, shall be nominated in writing by three electors ordinarily resident in the constituency for which he is a candidate and the persons making the nomination, other than in relation to an election for a constituency which is in or partly in the town of Honiara, shall be persons whose domicile of origin is in that constituency or in the Province in which the constituency is situated, and no candidate may be nominated for more than one electoral constituency.

(2) The writing for the purposes of subsection (1) shall be subscribed by the candidate, and by the persons nominating him, in the form set forth in the Third Schedule to this Act and the nominations form shall contain the following particulars:-

a) The full name, and the address and description of the candidate;

b) The full names, and the addresses and description of the nominators of the candidate; and

c) A certification by the candidate that he is willing and qualified to stand for election

(3) The Returning Officer shall provide nomination papers and shall at the request of any elector, the candidate and all his nominators being present, complete any such nomination paper on such elector’s behalf

(4) No elector shall nominate more than one candidate, and where any elector purports to nominate more than one candidate, only his subscription of the first nomination paper delivered in accordance with the provisions of this Act and so subscribed shall, subject to the provisions of this Act, be valid and his subscription on every other nomination paper shall be null and void.

(5) Each candidate, or one of the persons nominating him, shall deliver his nomination paper subscribed as hereinbefore provided to the Returning Officer not later than the time specified under section 24(1) (b) of this Act.

(6) Where the Returning Officer is satisfied that difficulty of physical communication prevents withdrawal within the period specified in Section 24(1) (c) of this Act, notices in writing may be accepted if delivered instead to an Assistant Returning Officer resident within the electoral constituency in respect of which the candidate has been nominated and the Assistant Returning Officer shall communicate the fact of withdrawal to the Returning Officer as soon as practicable.”

The petitioner’s argument is that the first respondent was wrongly allowed to stand nominated for election. Mr. Radclyffe submitted that the first nominator for Abraham Kapei who was one of the candidates and third nominator for the first respondent were one and same person. Hence the argument that section 25(4) had been breached. Mr. Kapei’s first nominator was “Shadrach Asua” whose occupation was described as “Village Catechist” and the first respondent’s third nominator was “Mrs. Shadrach Asua” whose occupation was described as “House Wife”. According to the voters list for the Constituency, argued Mr. Radclyffe, there was no “Mrs. Shadrach Asua” on the list and that Mr. Shadrach Asua’s wife is “Stella Apoe” whose registered voter’s number was 32/1/48. She should have used “Stella Apoe” instead of “Mrs. Shadrach Asua”. To strengthen the petitioner’s argument, Mr. Radclyffe also submitted that the registered voter’s numbers placed alongside “Mr. Shadrach Asua” and “Mrs. Shadrach Asua” were the same and that number was “32/1/59”. This, it was argued, showed that they were one and the same person and the Returning Officer should not have accepted the first respondent’s nomination pursuant to section 25(4) of the Act.

Mr. Teutao submitted on behalf of the first respondent that his client was validly nominated by three nominators who were electors residing in the constituency in accordance with section 25 of the Act. Counsel argued that Mrs. Shadrach Asua is the same person whose name is also Stella Apoe. She is Mr. Shadrach’s wife. Her identity had been established in court although the Returning Officer admitted that it was a mistake to put the Reg. No. “32/1/59” alongside Mrs. Shadrach Asua’s name. That Registered Voter’s number should be put alongside Mr. Shadrach Asua’s name only. In any case, Mr. Teutao submitted the inclusion of a voter’s registered number is not necessary under the Act. In this regard also, Mr. Teutao submitted that the Form in the Third Schedule does not comply with the Act and the Constitution as there are matters included in the Form that are not required by the Act or the Constitution.

The contention advanced by Mr. Teutao was supported by Counsel for the Attorney General. Mr. Hauirae submitted that the names “Mrs. Shadrach Asua” and “Stella Apoe” are different but they are names of one and the same person. She is Mr. Shadrach Asua’s wife. She had been identified as one and same person registered to vote. Her nomination of the first respondent was therefore in order.

I consider first the contention that the Form in the Third Schedule is inconsistent with the Act and the Constitution. This point had already been dealt with in Evo -v- Supa and Returning Officer (1985-1986) SILR 1 where the court found that the Form described as “NOMINATION PAPER” in the Third Schedule was not consistent with the language of section 25 of the Act nor with the Constitution. With respect, I agree with that finding. However, despite the finding of the court in 1985, in Evo-v- Supa, the Form in the Third Schedule has remained unchanged until today. I would urge the relevant authorities to consider bringing the contents of the Third Schedule to be in line with the body of the Act and the Constitution.

Let me now turn to the argument on the validity of the nomination of the first respondent. The nominators of the first respondent were Mr. Paul Kapakeni whose address was, Luaniua Village and who was described as a Fisherman, Edwin Aka’a Kakoi of Luaniua Village and described as a businessman, and Mrs. Shadrach Asua of Pelau Village and described as a House Wife.

The starting point is section 25(1) of the Act which requires that any person putting himself forward for election must be nominated in writing by three electors who ordinarily resides in the Constituency for which he is a candidate. In addition the three electors must be those whose domicile of origin is in that constituency or the Province where the constituency is situated. The nomination must be in writing and in the form set out in the Third Schedule to the Act. That nomination form must be subscribed by the candidate and the nominators.

In his submission, Mr. Radclyffe contended that subscribing to a nomination form meant that the candidate and nominators must sign the form. Mr. Teutao argued that there is no requirement to sign the form. Ordinarily speaking, when one subscribes to a document, it entails the entering of his or her name on the paper and attesting to it with a signature. In this sense, the nominators of the first respondent must sign the form in addition to entering their names, address and description. That is what section 25(2) (c) requires. I therefore agree to Mr. Radclyffe’s argument on what it means to subscribe to a nomination form when nominating a candidate for election.

The next consideration is to ascertain whether those who nominated the first respondent were registered voters. This is vital since the Constitution and the Act require that only those who are entitled to vote at the election should take part in the election process of a candidate and those such persons must be registered as electors. Thus section 25(1) of the Act provides that a candidate for election must be nominated by three electors who are in fact, registered voters from the Constituency in which the candidate wishes to stand.

In the present case, there can be no question that the three nominators of the first respondent were all electors, being registered voters in the Malaita Outer Islands Constituency. The third nominator was the wife of Mr. Shadrach Asua and who was a registered voter, Registered No. 32/1/48. In the nomination form she was put down as Mrs. Shadrach Asua by her husband who filled the form up for her although her home name, Stella Apoe, was used on the Voters list. I will say something on this later but for now, there can be no doubt she was an elector and as such, entitled to nominate the first respondent. She had agreed to be one of the nominators for the first respondent and as she was not able to read or write, she consented to her husband filling in the nomination form on her behalf I for my part do not see anything wrong with that nor do I see anything in section 25 of the Act prohibiting it. In my view, to insist on an elector such as Mrs. Shadrach Asua or Stella Apoe (to use her home name) nominating a candidate of her choice to personally write and sign her name and enter her other details on the form when she could not write nor read would be to impose upon her a condition that might well lead to her being unable to exercise her constitutional right of nominating a candidate of her choice. The words “subscribed ....by the persons nominating” in section 25(2) must construed so as not to inhibit an elector from lawfully exercising his right to participate in an election process. If an elector requires assistance to exercise her right in this process the law allows such assistance to be rendered to her. One only needs to read subsection (3) of section 25 to appreciate this.

This now leads me to consider the question of the difference in the names used in the nomination form and in the voters list. It is submitted on behalf of the petitioner that the Returning Officer should have rejected the third nominator as the name “Mrs. Shadrach Asua” was not her name but that it was “Stella Apoe” as shown on the Voters list. As such the Returning Officer was wrong to accept the entry of her name as “Mrs. Shadrach Asua” on the nomination form. I accept, and I think it is commonly accepted, that a woman, by virtue of her reputation and marital status can bear a name at will and so uses her husband’s surname. Like in the present case, Stella Apoe used “Mrs. Shadrach Asua” which reflected her reputation and her marital status. Who knows perhaps in her Marriage Certificate she might have used “Stella Apoe” and in some occasions she might have used “Mrs. Shadrach Asua” or simply “Mrs. Asua”. But it must be remembered that she was and still is the wife of Mr. Shadrach Asua. There can be no possible doubt about her identity under the name, “Mrs. Shadrach Asua.”

Was the Returning Officer wrong in accepting Mrs. Shadrach Asua’s entry as one of the nominators of the first respondent? The answer to that is, No. In the first place, it was the Assistant Returning Officer who first checked the first respondent’s Nomination form. He then sent it over from Pelau to the Returning Officer in Auki. Upon receipt of the nomination form he accepted it as in order. I have no doubt he also checked Abraham Kapei’s Nomination Form and that was also in order. In the first respondent’s nomination form one of the nominators was Mrs. Asua. On the face of it, the Returning Officer accepted the first respondent’s nomination as in order. In this own words, he said

“I accept Holosivi’s nomination on the logic that Mr. Shadrach Asua is different from Mrs. Shadrach. Mr. Shadrach was a Catechist and Mrs. Shadrach was a House Wife”.

The Returning Officer admitted that he made a mistake in noting down the Registration of Voter’s Number 32/1/59, beside Mrs. Shadrach Asua’s name. But in my judgment, that mistake matters not to the validity of the nomination. In any case the checking of the electoral numbers against the electors’ names is a means by which the Returning Officer ascertains whether the electors are eligible to nominate a candidate. A mistake such as the one admittedly made by the Returning Officer in this case cannot affect the elector’s entitlement to nominate a candidate. It is the register of electors that is pivotal to our electoral system created by the Act. That register is the source of the official list of voters issued for the use of presiding officers at polling stations. It also determines the entitlement of an elector to vote in a particular Constituency. In this case, Stella Apoe who is Mrs. Shadrach Asua had been identified as an elector and who was entitled to nominate the first respondent. Had she not been so identified, I have no doubt the Assistant Returning Officer would have advised the Returning Officer when he sent the nomination form to him in Auki. Thus there can be no valid suggestion that the first nominator for Abraham Kapei was also the third nominator for the first respondent in this case. Not only that the identities of Mr. Shadrach Asua and his wife were ascertained at the time of the nomination but they were also identified before this court. It would be a different matter if the nominators’ identities were not demonstrated at the time they subscribed to the nomination forms.

Finally, my reading of the Act, in particular sections 25, 26 and 27, is that the Returning Officer’s primary task is to ascertain whether or not the nomination forms are in correct form and if he finds that they are not, then he can take certain actions on them, including deciding as to whether or not they are valid. Thus the scrutiny of the nomination papers is to ascertain whether they comply with the requirements of section 25 and 26. The Returning Officer, in my judgment, can only exercise his powers under section 27(2) to hold a nomination paper invalid based only on the grounds specified therein. So that, as in the present case, once the Returning Officer decided that the third nominator of the first respondent was an elector eligible to nominate and accepted it, with the nomination paper being in order with all the requirements complied with, then it was not open to the Returning Officer to go beyond that thereafter in order to investigate whether the nominator’s name was correct or not. The fact remained that he already accepted the elector as eligible to nominate. It matters not, so far as the court is concerned, whether Mr. Shadrach Asua’s wife was called Mrs. Shadrach Asua or Stella Apoe. She was and still is the one and same person eligible to nominate. The Returning Officer accepted her to be so eligible and he was correct to do so

In Solomon Islands, it is common, particularly in the villages, that a woman, though married still uses her maiden name but may at times be addressed as “Mrs.” so and so using her husband’s name. I do not see anything wrong about such usage when nominating a candidate, so long as the identity of the elector is ascertained.

The Returning Officer said in court that he realised the mistake but it was already very close to the election day and so he could not do anything about it. It may well be regarded as a mistake in the use of the name “Mrs. Shadrach Asua”. But as I have already said it matters not to this court as he had already approved the nomination paper, and that was enough to save it, even though it might be regarded as a mistake. In any case, there can be no doubt about the identity of Mrs. Shadrach Asua.

What if the Returning Officer decided to delay the approval of the first respondent’s nomination and embark on an inquiry as to identity of the nominator in this case? In view of the time limit and the availability of transport and communication link between Auki and Malaita Outer Islands, the Returning Officer, in my judgment was right holding that the nomination was valid. It might well be, had he embarked on such enquiry, that by the time his enquiry was completed, confirming that Mrs. Shadrach Asua was the same person called Stella Apoe who was an elector eligible to nominate the first respondent, the closing date for nomination might well have been over. Then the decision delaying the approval of the nomination by the Returning Officer might well have also led to the first respondent’s right to stand being denied. If it were so and the first respondent were to bring an election petition on that basis, I would have no doubt that the evidence he would bring to the court would be those that are presently before the court. If it were so, there can be no doubt, in my judgment, that the Returning Officer’s decision would be held to be invalid. In the present case, however, the Returning Officer’s decision was right when he accepted the first respondent’s nomination form as valid.

For those reasons, the petition fails and it is hereby dismissed. The Court accordingly determine pursuant to section 82(3) of the Act that the first respondent was duly elected. The court will certify that determination to His Excellency The Governor General with the result that the election shall be confirmed.

Costs must be paid by the petitioner.

Order: Petition dismissed with costs

(Sir John Muria)
CHIEF JUSTICE