Kennedy v Lilo [2013] SBHC 83; HCSI-CC 199 of 2012 (15 July 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 199 of 2012

BETWEEN:

DANNY KENNEDY, MOFFAT MAETA, JILAR SABE PRASAD, ISAAC KOVA, WILLIE RIZU, SACKLEN LOUO, TANNANGBARAKA, TETO TEBOUNABA, OSIA TAASI, TEIA AVITA, MTINGA NEETI, KATEINANG BENETETI, TEKAA K KAIETI, HENIS GHONIS AND DEI SAM
(Representing the electorates and constituents of Gizo- Kolombangara Constituency)
Claimants

AND:

HON. GORDON DARCY LILO (MP for Gizo- Kolombangara Constituency)
Defendant

Date of Ruling: 15 July 2013

Ms Tongarutu for Defendant
Mr. Tagini for Claimants

RULING

[1] This is an application by the Defendant filed on 20 July 2012 to strike out the Claimant’s application filed on 25 June 2012. The application by the Defendant seek orders to dismiss the Claimant’s application on the grounds that: (1) it is frivolous and vexatious; (2) It has no reasonable chance of succeeding; (3) It is an abuse of the court process; (4) any further orders of the court deems fit to make and; (5) costs.

[2] By an application filed on 25 June 2012, the Claimants apply for: (1) An order that the Defendant disclose records including statement of accounts, financial reports and other documentary evidence showing how the Defendant spent, used, managed or administered, the ROC Rural Constituency Development Funds, the ROC Micro Project funds, the ROC Millennium Funds, the SIG Rural Livelihood Funds, the SIG Contributions to Rural Constituency Development Funds, the SIG Church Tithe Funds and other Funds.

[3] The Claimants’ case is that since the Defendant was elected into parliament in year 2002, the Defendant failed, refused, ignored or omitted to explain or produce proper records with documents to the Claimants on how the Defendant spent, used or administered these public funds. The Defendant thus had breach the implied term of the trust by not being accountable and transparent on how he manages and looks after the public funds.

[4] The persons who filed sworn statements in support of the Claimants’ application are Sabe Jilla Prasad and Moffat Maeta. They claim that they are registered voters of the Gizo-Kolombangara Constituency of which the Defendant is the current Member of Parliament for that constituency. The other persons in support this application are Danny Kennedy, John Prasad and James Rizu. On the other hand, there are numerous registered voters of the constituency who opposed the application and dubbed the application as being politically motivated. Since this is a judicial forum and not a political forum, it will merely consider whether the application by the Claimants is supported by the courts (Civil Procedures) Rules of 2004 (“the Rules”).

[5] It can be seen from the face of the application that it is filed in pursuant to rule 11.23 of the Rules. One of the objectives of that rule is to enable the Claimants to find out before they start proceedings whether they have a good cause of action or not. That objective would be defeated if they had to show in advance that they already had a good cause of action before they see the documents.

[6] In this application the documents sought to be discovered would be in the possession of the Defendant, that the Defendant would have an opportunity to be heard, that the Defendant a party in the proceeding, that the documents would be relevant to the issues raised and that disclosure before proceedings have started is necessary to decide the proceedings fairly or save costs.

[7] In the respective view of the court the matters alluded to in paragraph 5 and 6 herein, cannot be regarded as frivolous, vexatious, and an abuse of the court processes. According to the Claimants’ application is allowed and orders 1 and 3 therein are granted.

Order: 1. Claimants’ application is allowed.

2. Orders 1 and 3 in Claimants’ application are granted.

High Court