Maeke (Jnr) v Sopage [2011] SBHC 108; HCSI-CC 341 of 2010 (10 March 2011)

IN THE HIGH COURT
OF SOLOMON ISLANDS
(Civil Jurisdiction)

Civil Case no. 341 of 2010

Alfred Maeke (Junior)
The Petitioner

-V-

Martin Sopage
The First Respondent

And

The Attorney-General
The Second Respondent

Hearing: 7-8, 28 February 2011
Ruling: 10 March 2011

J. Apaniai for the Petitioner
M. Bird for the First Respondent
R. Firigeni for the Second Respondent

Palmer CJ.:

1. The Petitioner, Alfred Maeke (Jnr) ("Maeke") challenges the validity of the nomination of the Respondent, Martin Sopage ("Sopage") on the grounds that one of his nominators, John Ngelea ("Ngelea") was not at the time of the nomination an elector 'ordinarily resident' in the North Guadalcanal Constituency as required under section 26 of the National Parliament (Electoral Provisions) Act (Cap. 87) ("the Act"). Sopage had been nominated by three persons, one of whom was John Ngelea. No issue is raised in respect of the other two nominators. Only Ngelea's nomination is the subject of this challenge.
   
2. Section 26(1) of the Act sets out the requirement that a candidate shall be nominated in writing by three electors ordinarily resident in the constituency for which he is a candidate and whose parents or either of the parents are or were permanently residing in that constituency or in the Province of the constituency. There are two requirements set out in section 26(1). The first requirement is whether Ngelea is ordinarily resident in that constituency. The second is whether his parents or one of them is a permanent resident in that constituency.
   
3. There is no dispute that Ngelea's parents are permanent residents of North Guadalcanal Constituency and so the only issue for determination in this application is the status of Ngelea's residence and validity of his nomination of Sopage. The question for determination is whether Ngelea is ordinarily resident in Suagi village in the North Guadalcanal constituency? If not, his nomination of Sopage is invalid and in turn would affect the validity of Sopage's election.
   
4. Definition of ordinarily resident. The definition of the phrase ordinarily resident had been the subject of numerous court cases in this jurisdiction and others. It must be given its ordinary and natural meaning and is one of fact and degree. It denotes a considerable degree of permanence, stay and continuity in a particular place; a sense of belonging or connection, linkage to the land, community, tribe or location where one resides, or some assumption of permanence, degree of continuity and expectation of continuity[1].
   
5. Facts not in dispute. It is not disputed that Ngelea is originally from Suagi village and that he maintains connections with his home village. There is some dispute whether he has a house there but on the evidence that has been adduced I am satisfied on the balance of probabilities that he has a home there which he built and that his parents reside in the home. It is not disputed that he visits his home village on important feast days and other occasions.
   
6. He moved from Suagi to Pusikali in the 1990's and then to Abua Buburu village in 2002 or 2004. He has been there since. Abua Buburu village is in the North East Guadalcanal constituency, hence this challenge on his eligibility to nominate Sopage.
   
7. Summary of Evidence of the Petitioner. He claims that Ngelea resides in Abua Buburu as his place of residence and therefore cannot claim to be ordinarily resident in Suagi and to be registered as an elector for the North Guadalcanal constituency. They say he has a permanent home there including his gardens, a cocoa and teak plantation and coconut trees. They say these show that he is a permanent residence there.
   
8. Summary of evidence of the Respondent. They say that while Ngelea has a permanent home in Abua Buburu which is not denied they contend that he is equally entitled to be registered as a voter in the North Guadalcanal constituency as he also maintains his residence status in Suagi village. They say that is his home village and his place of origin. All his family members, parents, brothers and sisters reside in that place and all their family plantations and possessions are there as well. As the person who has been chosen to be the leader in their family his connections to his village remain strong. He also has his business interests there and regularly visits his parents and family there.
   
9. Analysis of the evidence. It is for the Petitioner to prove on the balance of probability that Ngelea is not ordinarily resident in Suagi. I have carefully considered the evidence of the parties and note the following points. Ngelea comes from Suagi village. This is his home village. He grew up there as a young man and regards it as his home. His parents reside there on a permanent basis including other siblings and their families. All their family property, including plantations are there. I accept that he is now regarded as the leader of their family and expected to take up responsibilities and attend to any family issues. This he observes by attending most festival days and ceremonies done or held at his village. He is a regular visitor there and on many occasions has stayed there on weekends even up to 1-2 weeks. His parents have confirmed this in their evidence. There has been some dispute about whether he had a house there but the clear evidence is that he did build a house which is now being occupied by his parents. There is no dispute however as to who owns that house.
   
10. He has shown on the evidence on the balance of probability that his ties to his home village remain strong and intact; they run deep. He maintains regular contact and communication with his family including business activities. There is evidence which showed that he recruited boys from his village to help out in his business activities.
    
11. In order to establish that he is no longer ordinarily resident in Suagi village, it is for the Petitioner to show on the balance of probability that such link or connection had been sufficiently severed to the point it can be said that he is no longer ordinarily resident in that village. When such test is applied, it is clear in my view that it cannot be said that Ngelea's connection had been sufficiently severed.
    
12. While I accept that he equally qualifies as being ordinarily resident in another constituency, I am unable to accept the submission that that alone is sufficient to disqualify him from being registered as an elector in his own home constituency. In Tegavota v. Bennett[2], Daly CJ pointed out that concepts of residence vary from country to country and that in Solomon Islands people retain ties and often houses in their home village even though they might be employed and have other property available to them in a main centre in a province or in Honiara. During election period ship-loads of people would travel from Honiara to their home villages and provinces to vote even though they may have been resident in Honiara for many years and have their permanent dwellings here. In his evidence in court Ngelea pointed out that his reason for moving and setting up home in Abua Buburu was for the sake of his children, his wife being from Guadalcanal where land is traced along matrilineal lines, primarily to stake a claim for his children through their mother. His act of moving and re-settling there however did not imply he had renounced and severed his link, ties and connections to his home village. To the contrary these remain very much intact and alive. It is not uncommon in Solomon Islands for the husband to re-settle in his wife's land or village. Whether his ties or connections to his home village have been severed will be a question of fact and degree. In some instances that will be evident on the material before the court; that is not the case here.
    
13. I accept therefore in this instance that Ngelea is entitled to choose in which constituency he wished to be registered as an elector. Provided he does not seek to be registered in both constituencies I am satisfied his decision to register as an elector in his home village is valid and accordingly his nomination of Sopage is also valid.
    
14. This ground of the petition therefore must be dismissed.
    

Orders of the Court:

1. Dismiss ground alleging that Ngelea's nomination of Sopage is invalid.
   
2. Grant costs in favour of the Respondents.
   

The Court.

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^[1] Fox v. Stirk (1970) 3 All ER 7 at p. 13; see also Tegavota v. Bennett [1983] SILR 34 and Isaac Inoke v. The Attorney-General CC 218 of 2010, 2^nd August 2010.
^[2] [1983] SILR 34