Maegwali v Abana [2016] SBHC 212; HCSI-CC 453 of 2014 (24 November 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 453 of 2014

BETWEEN:

Severino Maegwali
1^st Petitioner

AND:

Steve Abana
1^st Respondent
(for Commissioner of Lands)

AND:

Attorney General
2^nd Respondent
(for Returning Officer East Fataleka Constituency)

Counsel: Kwana for the Petitioner
Counsel: Muria J for 1^st Respondent
Counsel: Harper for 2^nd Respondent

Date of Ruling: 24^th November 2016

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Application to Strike out
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Introduction

This Election Petition case was listed for trail when Counsel Muria for the second Respondent applied to the court to strike out the petition under the Rule 9.75 of the CPR 2007 (Rules).

Mr Muria said the petitioner does not have ground in his claim or against the second Defendant under the provision of the National Electoral Act and or unclear if he based his petition on common law.

Brief Background

The petitioner, Severino Maegwali was a candidate for East Fataleka Constituency during the National Elections held on 19 November 2014. And Steve Abana was the successful candidate and was duly named and elected as the member for East Fataleka. The petitioner pleads that the candidate, Steve Abana should not be elected if the damaged ballots papers of Faurau Polling Station were not counted or not included in the results.

The incident which the ballot box and ballot papers were allegedly damage was reported to Police Auki and still under Police investigation for any criminal offences.

The related issue in this case is the allegedly damage of the ballot box and ballot papers. And for the purpose of this petition the concern ballot box and ballot papers was flown over from Auki to Honiara for inspection or viewing by the court and counsels for the parties. Police Constable Charles Laore escorted or brought the ballot box and ballot papers.

The Police officer brought the bag containing the concern ballot box and ballot papers to the chamber and I directed him to open and pull out the alleged damage ballot box with ballot papers from the bag and or while the counsels inspected or view them in my presence. The officer did that and both counsels inspected or viewed the ballot box and ballot papers and also took photos with their mobile phones.

Upon the viewing, I directed that the ballot box and ballot papers be returned to Police Auki for custody and their investigation. And the matter was for hearing when this application to strike out under Rule 9. 75 of the Rules came up.

Defendant’s Case

Mr. Muria said it was after the inspection of the ballot box and ballot papers by the court and counsels he had decided to make this application. The inspection and viewing of the allegedly damage ballot box and all the requirement of the ballot papers or contents were not disturbed as by its appearances. On that basis this petition to be struck out on the ground on no cause of action.

Mr. Harper for the first Defendant supports Mr. Muria’s argument.
The Law

Rule 9.75 (b) of the CPR 2007 (Rules) allows the court to order dismissal of the proceeding if no reasonable cause of action is disclosed by the claim. Notably from the court judgments and rulings in this jurisdiction, strike out claim, and dismissing a case summarily are done only in very clear cases where the claim is baseless and does not disclose cause of action. It is usually done only where the statement of claim and the facts do not disclose even an arguable case.

The inspection and or viewing of the damaged ballot box and ballot papers were for the counsels and the court to see the exact condition as it is the ballot paper contents that raise issues in the petition. In other words the Petitioner is claiming the ballot papers were destroyed and did not contain the proper contents of ballot papers. I am mindful that the election is a secret ballot but with the circumstance or situation now it raises a cause of action and would require evidence at the trail.

It is my view that this case should go for trail and therefore the application is refused.

Orders

1. The application is refused,
   
2. The case is to be listed for full hearing,
3. Cost in the cause.
   

THE COURT

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Maina LR
PJ