Holosivi v Vahoe Jnr [2007] SBHC 89; HCSI-CC 223 of 2006 (11 July 2007)

	Home \| Databases \| WorldLII \| Search \| Feedback High Court of Solomon Islands

DAVID HOLOSIVI, REGINALD W APIA, DAVIDSON ALAKI PAULA, GABRIEL KEMAIKI, LEVI APUNA, HENRY MANUHEA, AND JOHN APO

Mr John Muria Junior for the Petitioner
Ms Maelyn Bird for First Respondent
Mr Rancliff Sizza of the Attorney General Chambers for the Second Respondent

FAUKONA J: This is an application by the Counsel for the first respondent. The Counsel for the second respondent has conceded to the application.

The petitioners are the nominated candidates who run in the National General Election held on 5th April, 2006, for Malaita Outer Islands constituency. On 9th April 2006, the Returning Officer declared the First Respondent to be duly elected.

Having aggrieved by the result, the petitioners filed a joint petition with the Registrar of the High Court on 8th of June 2006.

Their petition is basically grounded on the fact that the First Respondent as by his agents guilty of corrupt practices of procuring the commission of offences of bribery, treating in undue influence, before, during or after the National General Election. These alleged acts contravenes sections 66, 71(a), 71(b), 72(1) and 73 of the National Parliament (Electoral Provision)

Act, Cap.87, in that the First Respondent and his agents, procured voters in Malaita Outer Islands Constituency to vote for the First Respondent.

Ms Maelyn submitted that when nominations are closed, a candidate is nominated in writing by three electors. This is in compliance with S.26 of the National Parliament (Electoral Provision) Act Cap.87. Candidates are nominated separately. There cannot be any joint nominations. The Counsel also refer to s.83 of the Act which deals with the preservation of election petition, and lastly refer to S.66(2) which deals with corrupt practices if threat have extensively prevailed may reasonably affect the result.

With those provisions Ms Maelyn agreed that from nominations right up to petition is an individualistic responsibility. She further submitted that the petition must show a corrupt act has been done which will affect the result. There cannot be multiple petitioners in one petition.

Counsel for petitioners in reply refer to Section 10 of the Interpretations Act which states "words in the singular include plural" and therefore Petitioner must be read as including Petitioners.

I cannot search for more than Section 83(1) of the National Parliament (Electoral Provisions) Act, which states:

"A petition complaining 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 57 (2) (h), of the result of the election in relation to an electoral constituency be present 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.

From that provision alone, there is some allowance for one or more persons to file a petition, either separately or in common. In this case the petitioners are the loosing candidates in the April 5 National General Election. Of course one of them must be a run up candidate.

"An application for leave to withdraw a petition shall be filed at the Office of the Registrar. It shall be in duplicate and signed by the petitioner or petitioners and it state the ground on which the application is supported. Such application may be in the Form 7 in the schedule hereto."

That again is a clear indication that more than one person can file a single petition. See also 0.17 r1 and 0.21 r1 of the High (Civil Procedure) Rules 1976. If in a case where individual petitioners alleges the same grounds, would it not be convenient for them to amalgamate and mount one petition against the winning candidate. In my opinion, it would be more convenient that they mount one petition rather than seven separate petitions. This will also be convenient to the Court to determine common grounds at once, rather than making determination on seven separate petitions.

However, Section 26 refer to nominations of one candidate . Section 66(2) relates to disqualification of winning candidate to run again should corrupt practices are proved in Court or the Court declare the election void. Those provisions do not relate to multiple petition.

I will deal with these two grounds together. Both relates to the issue of non-compliance with Rule 4(1) 2) (3) and (4) and Rule 21 of the Election Petition Rules 1976.

Rule 4	1	An election petition shall contain the following statements:
		(a)	It shall state the right of the petitioner to petition.
		(b)	shall state the holding and result of the election and shall briefly state the facts and grounds relied on to sustain the prayer.
	2	The petition shall be divided into paragraphs of which, as nearly as may be, shall be confirmed to a district portion of the subject, and every paragraphs shall be numbered consecutively. No costs shall be allowed for drawing or copying of any petition not substantially in compliance with this rule unless otherwise ordered by the Court.
	3	The petition shall conclude with a prayer as for instance that some specific or person should be declared duly returned or elected or that the vote shall be recounted or that the election should be declared void or that a return may be enforced (as the case may be) and shall signed by all the petitioners.
	4	The Form 7 of the petition may be as in Forms 1,2 or 3 in the schedule with such alterations, additions or omissions as the facts and grounds upon which the petitioner relies may require.
Rule 21	There shall be left with the Registrar with affidavit of the sufficiency of the surety or sureties, sworn by each surety before the Registrar, that he owns or possesses lands or other property above what will satisfy his debts, of the clear value of the sum for which he is bound by his recognizance, which affidavit may be in the form set out in Form 5 in the schedule.

Noted from the petition; the petitioners are the candidates who run in the National General Election on 5th April 2006 for Malaita Outer Islands constituency. On the 9th of April 2006, the Returning Officer declared First Respondent duly being elected. As loosing candidates they have the right to file a petition whether it be against the conduct of the officers administering the election, or against the conduct of the winning candidate prior, during or after the election. If the petition does not state their rights, that can well be inferred, therefore Rule 4(1) (a) is complied with.

For Rule 4(1) (b), the only requirement which is not complied with is the results of the election which is not disclosed. Holding of the election and facts and grounds relied or has been well stated. Rule 4(2) has been well complied with – paragraphs has been divided into portion of subjects and numbered consecutively.

The petition clearly stated what the petitioners pray for. Paragraphs 5 of the petition stated that the election of the First Respondent were and are void or that he was not duly elected or returned and that his election was void. Hence Rule 4(3) has been complied with, except that the petitioners failed to sign the petition, the most argumented point.

Rule 4(4) clearly is not complied with, but the word "may" used in the rule is not mandatory but directory. The current form accommodating the petition is sufficient, otherwise it would have not been accepted upon filing, or amended during directive stages. Minor alteration or variation in form and terminology can be covered by Section 53 of the Interpretation and General Provision Act.

Rule 21 has not been complied with. No affidavit of sureties is being left or filed with the Registrar. There is in addition to requirement in Rule 16 which require a deposit of money by way of securities for payment of cots, which is the only amount, five thousand dollars, the petitioners paid.

In view of the omissions made by the petitioners, is it overwhelmingly substantial or incurable or fundamentally defective sufficient to render the petition void. Section 83(1) of the National Parliament (Electoral Provision) Act require petition be presented to the Court in its civil jurisdiction.

Meaning, should there be nothing covered under the specific rule of Election Petition Rules 1976, then the High Court (Civil Procedure) Rules 1964 must apply. It is a set of guiding rules which guide the High Court in conducting and hearing civil matters. Election Petitions are civil matters.

Interestingly, there is no provision in the Election Petition Rules 1976, in relation to non compliance to the rules. Hence High Court (Civil Procedure) Rules 1964 must come into play.

Upon reading Order 69 rule 1, of the High Court (Civil Procedure) Rules, which states:

"Non-compliance with any of these rules or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court shall direct, but such proceedings may be set aside either wholly or in parte as irregular, or amended, or otherwise dealt with in such manner and upon such terms as Court shall think fit."

In the case of Paia & Others –v- CC Abe & Others Civil Case No. 30 of 1993,
His Lordship (Palmer J) at that time stated in paragraph 8 & 9:

"There are two types of non-compliance recognized judicially in the construction of Rule 7. The first type refers to non-compliance which renders the proceedings a nullity and in the second type, is a non-compliance which merely renders the proceedings irregular."

His Lordship in that case refer to the case of Re Pritchard (deceased) [1963] 1A11C-R873, where he refer to page 883 in the judgment of Lord Justice Upjohn. In that case Lord Justice Upjohn identify three classes of proceedings in which a non-compliance can render the proceedings a nullity so that they can be set aside ex debito justiffiae. They are:-

(i)	Proceedings which ought to have been served but have never come to the notice of the defendant at all.
(ii)	Proceedings which have never started at all owing to some fundamental defect in issuing the proceedings.
(iii)	Proceedings which appear to be duly issued, but failed to comply with a statutory requirement.

This application is purportedly based on the third proposition, that by non-compliance with rules, it is a fundamental defect sufficient to render the petition void.

Order 69 r 1 has made it clear that non-compliance with any of these rules or any rule of practice currently in force shall not render any proceedings void, unless court shall so direct.

Court in exercising its powers can direct a proceeding void upon being satisfied that non-compliance with the rules are fundamental breaches or omission which cannot possibly be cured. Otherwise it is a non-compliance which render the proceedings void, but irregular.

I find though there has been non-compliance with the specific rules, there is no statutory breach. Therefore there is no fundamental defect or omission that will render the petition/proceedings irregular.

Any application seeking orders to set aside irregularities, must be made pursuant to Order 69 rule 3 of the High Court (Civil Procedure) Rules 1964, and in the nature of summons or notice of motion. This has not been done in this case, though it is the only optional rightful approach provided by the rules.

I cannot find within the Rules, may be am wrong, a suitable and direct rule that provides an application for dismissal of an action for being frivolous or vexatious. Order 27 r1 provides for points of law may be raised by pleadings. Order 27 r2 gives the Court power to dismiss the action, if, in the opinion of the Court, the decision of such point of law substantially disposes of the whole action. See Gadley Simbe –v-

Civil Appeal No. 8 of 1997 which dismisses non-compliance with the Forestry Forest Resources and Timber Utilization Act, Cap.40 and regulations made under it.

And Order 27 r3 gives power to the Court to strike out pleading where no reasonable course of action disclosed.

In this case, there is no actual pleading done but directive stages which have long passed. The case had been set for trial after several directive sittings. All of sudden the application is raised on the date supposed to be for trial. No notice was given of such application.

Let me remind Counsels, that it is significant that you familiarize with the law and the rules before filing a case or submit an application. When you file a case, ensure you comply with the requirements. When you made an

application to Court ensure your application is based on the High Court (Civil Procedure) Rules.

I therefore rule by refusing to strike out or dismiss the petition, but has to be amended as follows:

1	Inclusion of the result of National Election for Malaita Outer Island Constituency.
2	All petitioners have to sign the petition.
3	Affidavit of sufficiency of surety or sureties be left with the Registrar.
4	Seven(7) days is allowed to file amended petition.
5	Cost of this application be bourn by the parties.

High Court of Solomon Islands

Holosivi v Vahoe Jnr [2007] SBHC 89; HCSI-CC 223 of 2006 (11 July 2007)