Sasako v Sofu [2015] SBHC 48; HCSI-CC 454 of 2014 (2 June 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona PJ)

Civil Case No. 454 of 2014

BETWEEN:

ALFRED SASAKO
First Petitioner

AND:

WILLY METE
Second Petitioner

AND:

HON. STANLEY FESTUS SOFU
First Respondent

AND:

REGISTRATION OFFICER
Second Respondent

AND:

RETURNING OFFICER
Third Respondent

Date of Hearing: 5th May 2015
Date of Ruling: 2nd June 2015

Mr J. Apaniai for the First Respondent
Mr S. Banuve for the Second and Third Respondents
No one for the First and Second Petitioners

DECISION ON PRELIMINARY POINT

Faukona PJ: The first and second Petitioners and the first Respondent were candidates for the East Kwaio Constituency at a National General Election held on 19th November 2014. The first Respondent was the winning candidate who polled 2,748 votes whilst the first Petitioner was the runner-up with 998 votes. The results were published in the National Gazette on 26th November 2014 pursuant to Section 57 (2) of the National Parliament Electoral Provision Act (Cap 87).

2. S. 83 (1) provides that any one complained of undue election of a Member of Parliament must file a petition at the High Court within one month from the date of publication of result in the National Gazette. In this case one month requirement to file should lapse by 25th December 2014. On 24th December 2014, the first and second Petitioner filed a petition complaining of undue election of the first Respondent.

3. An amended Petition was filed on 9th February 2015 following the Direction Orders on 12th February 2015, granting leave to amend the election petition filed on 24th December 2014. The amended petition was served on the Solicitors for the first Respondent on 16th February 2015 with the Direction Orders.

Failure of the Petitioners to sign the petition:

4. It is not a contentious issue that the original petition was signed by Mr Allan Hou, of ANH legal Services, on behalf of the Petitioners. The question is, having failed to sign the petition by the Petitioners, what then was the legal status of the petition on the date of filing, 24th December 2014.

5. Rule 4 (3) of the Election Petition Rules 1976 ("EP Rules") requires the petition shall be signed by all the petitioners. Note the word "shall" used in here describe the physical signing of the petition. Certainly is an expression in mandatory term. The requirement indeed place emphasis in compliance with the procedures when filing an election petition in Court. In reinforcing this point Mr. Apaniai makes reference to the case of Public Prosecution V Ole Hee Koi[1] where the Privy Council said, "It seems that enactments regulating the procedure to be followed in Courts are usually imperative and not merely directory"- see also Secretary of State for Defence V Warn,[2] and Dales Case[3]. Those cases illustrate that procedural requirements are mandatory when related to Court proceedings. Non-compliance with such would be fatal to the proceedings.

6. Mr Hou seems to take a difference approach. He submits in his written submissions that those case authorities refer to deal with procedural requirement stipulated in an Act indifferent from the processes in the 1976 Election Petition Rules.

7. What Mr. Hou fails to see is that the mandatory requirement to comply with an Act or Rule is a common denominator in those case authorities and this one. Procedural requirements may derive from different sources, either an Act or Rule but application of procedural law should enjoy uniformity with equitable status commonly endowed by the force of mandatory. Failure to comply with the mandatory rule will render the petition invalid, meaning no petition on foot before the High Court. Therefore, there was nothing to amend on 5th January 2015. In other words the petition was void from the beginning.

Rules that Regulate filing and management of election petitions:

8. There are very interesting and stimulating submissions by Counsels in respect of the two rules, Civil Procedure Rules and Election Petition Rules. Mr Hou argues that the Election Petition Rules does not oust the Court's power under the Civil Procedure Rules, and that the Court is right in treating the hearing as another civil action, enabling itself to exercise its powers to remedy the mistake by granting leave to amend the petition, which is a consideration upholding justice of the case. Mr Hou refers to Rules 1.14, 1.15 and 1.6, that noncompliance to the Civil Procedure Rules is irregularity that does not make a proceeding or document nullity.

9. Mr Apaniai persisted that since the petition was not signed by the petitioners, it was not a valid petition which means there was no petition before the High Court as on 24th December, 2014. Because there was no petition, there was nothing to amend on 5th January 2015. He cited the case of Seselono V Kikiolo[4].

10. It is pertinent to note, on the outset, the operation of the two rules and the jurisdiction both intend to serve. First and foremost are the rules that provide for filing of civil suits in the High Court. Election petitions are filed in accordance with Election Petition Rules. All other civil litigations are filed in the High Court pursuant to Civil Procedure Rules. The procedures to comply with in filing are set down separately by the Rules. The Rules are very clear. There is no integration at all, neither that which will promote confusion as to the procedures of how to file a case.

11. Mr Hou's concern, though accepted the mandatory requirement, seem to argue that the Civil Procedure Rules takes precedent over the Election Petition Rules. The oversight Mr Hou committed is that Rules 1.14, 1.15 and 1.16 refer to cases filed under Civil Procedure Rules. I do not think that should apply to election petition cases. In respect of section 85 and section 83 (2) both make reference to the procedures at the hearing of the petition. S.83 (2) in particular specifically provided for, if in the opinion of the Court the petition is frivolous or vexatious the Court may summarily dismiss it, or for there being insufficient grounds to warrant a hearing.

12. To consider dismissal of a petition for being frivolous or vexatious, or has insufficient ground, is a consideration taking account of the allegations in the petition. Whether they disclose a cause of action or supported by evidence or not. It is a proceeding that may take place later after the petition has been filed. In this case we are still at the commencement of the process of filing a petition. Nothing as yet includes evidence in support. That will be left for hearing of the substantive case.

13. In the Seselono case refers to in paragraph 9 is a classic example of noncompliance with required procedures. In that case there was an appeal filed within allowable period but none of the grounds alleged error of law or procedures. The appeal was struck out by the Registrar of High Court. The Court reiterated that an appeal which did not allege any error or failure did not give the Court jurisdiction and therefore a nullity. Similarly, an appeal alleging such error or failure but file outside three months period did not give the Court jurisdiction that such appeal was a nullity. There are some differences in factual situation but perceived as quite minimal. In Seselono case, the non-compliance was in regards to the accepted standard of cause of action before the Court can able to entertain. In this case it is quite different. The failure is in relation to signing of a petition by a wrong person apart from the ones qualified and required under Rule 4 (3). In any event Common application of law in both cases is non-compliance with the procedure required in the initial stage to commence a cause of action in the High Court.

14. It is apparently clear that filing of an election petition and filing of normal civil cause of action is separated by the requirements of the Rules. There can be no integration or subsidisation at the initial stage. The Civil Procedure Rules come into play only in order to manage the files to progress the case forward for hearing. And so direction orders were sought and granted for that purposes. But for initial filing still remain for the relevant Rules as being an authorized source set for such function.

15. I know if I could grant the orders sought in this application will turn the entire event. It will affect leave that this Court had granted as an order for direction. The question whether an appeal should be a proper possible process left for the first Respondent to resume. However, I take comfort in the case of Qurusu V Sogavare[5] where the Court found that the failure by the Respondent to appear at the hearing of the petitioner's application to extend the fourteen days period was due to the failure by the petitioner to serve the notice of hearing of the application on him (the Respondent). The Court granted the Respondent's application and set aside the order extending the 14 days period.

16. On 5th February 2015 was the first date for mention of all the election petition cases. On that date the Counsel for the Petitioners did appear and the Counsel for the second Respondent, but no one for the first Respondent or himself personally appeared. I noted there was notice to attend issued to all parties on 30th January 2015 for a mention on 5th February 2015. The notice was addressed to the first Respondent in his personal name. Normal practice is that notices were posted in the pidgin hall of Counsels at the Registry. For sure there can be doubt whether the first Respondent received the notice or not. If it was posted through post office address to National Parliament Office, then how reliable the Post Office is to deliver a letter within six days in Honiara.

17. Noted as well that the petition was served on the first Respondent on 6th January 2015, and a response was filed by his Counsel on the 11th February 2015, six days after the direction orders were made in the absent of the first Respondent.

18. I accept the fact that the first Respondent could not have been made aware of the first motion date because he might not probably received the notice to attend. It was on the first motion date that the Counsel for the Petitioners orally applied for leave to amend the petition acknowledging the error that the petition was not signed by the Petitioners. Counsel for second Respondent did not respond or object to, so the Court grant the leave prayed for.

19. It was obvious the application was an urgent and an oral one, therefore it was not served on the first Respondent. Being the case now, the first Respondent was the one affected by the order which was obtained in his absence. Because he was not aware of the date set for motion hence failed to attend. It is fair and justifiable that the leave granted in his absence must be set aside.

20. In all that I have said I must therefore dismissed the petition based on the reasons I have stated herein. I hereby grant the reliefs prayed for in this application.

Orders:

1. Order that Direction orders perfected on 12th February 2015 be set aside.

2. Declaration order sought granted that the Petition filed on 24th December 2014 is null and void.

3. Order that the petition is struck out.

4. That the 1st and 2nd Petitioners pay the costs of this application.

The Court.

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^[1] (1968) AC 829 of 852
^[2] (1970) AC 394
^[3] (1881) 6 QBD 376
^[4] (1982) SBHC 9; (1982) SILR 15 (8 January 1982).
^[5] (1999) SBHC 95, HC. CC 190 of 1997 (24 September 1999)