Kahano v Solomon Islands Electrol Commission [2011] SBHC 74; HCSI-CC 338 of 2010 (19 August 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 338 of 2010

BETWEEN:

HUGO KAHANO
Petitioner

AND:

SOLOMON ISLANDS ELECTROL COMMISSION (Represented by Attorney General)
1st Respondent

AND:

RETURNING OFFICER FOR MALAITA OUTER ISLANDS (Represented by Attorney General)
2nd Respondent

AND:

MARTIN KEALOE
3rd Respondent

Date of Hearing : 22 JULY 2011
Date of Judgment : 19 AUGUST 2011

RULING

Mwanesalua J:

1. On 11 April 2011 this court has issued orders as follows:
   
   • (i) Responses to sworn statements be provided by 4 May 2011.
     
   • (ii) Notice of intention to cross-examination be filed and served by 13 May 2011.
     
   • (iii) Matter be set down for trial for 2 weeks commencing on 4 July 2011.
     
2. The First and Second Respondents did not file and serve their responses to the Petitioner's sworn statements until 3 June 2011 and 1 July 2011, respectively as deposed by Michael Teuhiaki and Job Akau both Assistant Registration Officers for the Malaita Outer Islands Constituency for the 2010 National Elections.
   
3. This is an interlocutory application on behalf of the First and Second Respondents filed on 13 July 2011 seeking leave of this court to file their sworn statements late.[1]
   
4. There is no dispute that there was late filling of the Sworn Statements of Michael Teuhiaki and Job Akau on behalf of the First and the Second Respondents in this case. The question whether the late filling of those sworn statements are effective is a matter for this court to determine. There is provision under the Rules to guide the court in deciding that question.
   
5. The Respondents Submit that the relevant provision is rule 5.41 of the Rules which is in these terms:
   

" 5.41 In deciding whether a late filed document is effective, the court may have regard to:

(a) The reasons why the document was filed late; and

(b) Any additional expenses or inconvenience incurred by the other parties to the proceeding, and the disadvantage to the first party because of the late filling".

6. There are two reasons given on behalf of the Respondents for the late filing of the Sworn Statements. They say this is due to the delay in (1) the isolation of the issues left to be decided by the court and (2) the inability of obtaining instructions from the Assistant Registration Officer, Robert Kekake Asoi who was involved in both the voter registration and the determination of objections and omissions in the wards of Luaniua and Pelau for purposes of the 2010 National Elections[2]. Robert Kekake refused to provide Sworn Statement on behalf of the First and Second Respondents whom he was working with during the Elections.
   
7. The Petitioner did not file any response to clarify his objections to the late filing of Sworn Statements on behalf of the Respondents. However, he submits that since the Respondents were in breach of Court Orders, this application should have been considered under rules 8.13-20 of the Rules.
   
8. The Petitioner therefore contends that the Respondents' application should be struck out for non-compliance with court orders to file their sworn statements by 4 May 2011 and to give notice to cross examine witnesses by 13 May 2011. The court has considered the submissions before it and decides the Petitioner was in no better position because he has failed to comply with the order of the court to prosecute his case by 4 July 2011. The view of this court is that the reasons advanced by the Respondents for late filing of sworn statements constituted reasonable excuse for failing to comply with Orders of the Court.
   
9. In the circumstances, the sworn statements of Michael Teuhiaki and Job Akau filed on 3 June 2011 and 1 July 2011 respectively are effective and admissible for purposes of this Petition. Order accordingly.
   

THE COURT

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^[1] Solomon Islands Courts (Civil Procedure) Rules 2007
^[2] Augustine Houhaaoli’s sworn Statement.