Maefai v Ghiro [2016] SBHC 43; HCSI-CC 450 of 2014 (3 March 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona PJ)

Civil Case No. 450 of 2014

BETWEEN: CHARLES JORDAN MAEFAI Petitioner

AND: ALFRED GHIRO Respondent

Date of Hearing: 25^th January 2016
Date of Decision: 3^rd March 2016.

Mr M. Pitakaka and Ms L. Tahu for the Petitioner
Mr C. Hapa for the Respondent

DECISION ON APPLICATION TO SUMARILY DISMISSED ELECTION PETITION

Faukona PJ: There are two applications to determine. One is filed by the Respondent to summarily dismiss the petition. The other is filed by the Petitioner for enlargement of time to pay security for costs and to file the amended petition.

2.	On 19th November 2014 was a national general election to elect new fifty (50) members of the National Parliament of Solomon Islands.
3.	The Petitioner and the Respondent were among the candidates who were nominated to contest the East Makira Electoral Constituency. Upon conclusion of the counting of votes, the Respondent polled 2,225 votes declared and returned the said Respondent as being duly elected.
4.	There is no evidence that the Petitioner is a runner up candidate. However, he was aggrieved of the results and hence utilise S.83 (2) of the Act to lodge a petition against the winning candidate (the Respondent).
5.	A petition was then filed on 24th December 2014 but was not accompanied by any sworn statement. Later, on 9th June 2015 a sworn statement deposed by the Petitioner was filed. The excused for that failure and anomaly was that the petition was personally drafted by the Petitioner (non-lawyer) with the assistance of his friends. On the face of the petition there is reference to Rule 4 of the 1976 Election Petition Rules, which implicated that someone with some legal background must have involved in the drafting of the petition. However, the best option for the Petitioner is he could have consulted a qualified legal representative at the initial stage rather than engaging unqualified friends.
6.	On 27th February 2015, the Respondent filed this application to summarily dismiss the petition.
7.	Later, on 9th June 2015, the Petitioner filed a sworn statement and an amended election petition which particularise all the alleged issues to argue at trial.
	Grounds for dismissing the petition
8.	The Counsel for the Respondent submits that the application to dismiss the petition is derived from the basis of law. He refers to section 83 (2) of the National Parliament (Electoral Provision) Act, which advocate that the Court has discretionary power to summarily dismissed any election petition, if in the Courts opinion such petition is frivolous or vexatious or if there are insufficient grounds to warrant the hearing.
9.	The Counsel then outlines four grounds upon which his client’s application premise. Notably, all the grounds encompass the breach of Election Petition Rules 1976 as the Counsel contends.
10.	As it appears, both applications are intertwined and overlapped, therefore upon consideration of the application for dismissal, the Petitioner’s application for enlargement of time is considered correspondingly.
	Ground 1-security for costs:
11.	Rule 12 of the Election Petition Rules 1976 states, “that the Petitioner shall give security for costs to the satisfactory of the Registrar either by deposit of an amount no less than fifty dollars or otherwise, no petition shall be entertained until such security is given”.
12.	It is not a contentious issue that the security for costs was not paid by the Petitioner by 21st January 2015, as requested by the Registrar for High Court per her letter dated 30th December 2014.
13.	With no change of circumstances, the matter was called for mention on 27th February 2015. At that motion sitting there was no explanation given; hence the Court directed that the Petitioner filed an application for extension of time so that reasons for not paying security for costs in time are expedited. I noted from submissions that no application was filed and explanation provided until 9th June 2015 when the Petitioner filed a sworn statement. By then it was about twenty (20) weeks late.
14.	Apparently, the application for extensions of time was filed, and this Court is urged to determine that application and the application for dismissal collaboratively. No issue is taken as to that arrangement and management.
15. 16.	The thrust of this issue premises on the interpretation and defining of the legislator’s intention as to how the Rules are to operate and apply. The language of Rule 12 is clear. It requires the Petitioner shall give security for costs to the satisfaction of the Registrar. The word “shall” makes the payment of security for costs mandatory. It must be strictly complied with. The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded to the intent of the Parliament that made it; and that intention was to be found by examination of the language used in the statute as a whole. What does the language mean and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.[1] However, the Rule subsequently continues by stating “no petition shall be entertained until such security is given”. It is not so much that because the Petitioner had failed to pay the security for costs, that he must explain his reason for his failure, which expectedly must convince the Court. Should the Court is not satisfied on the explanation, would such failure renders the whole proceeding invalid, such that the Court cannot even commence its enquiry into the allegations and unnecessarily consider the grounds upon insufficiency of facts?
17.	I am of the view that if such failure is eminent, the commencement hearing of the petition is stayed or delayed until the security for costs is given.
18.	This provision is differently constructed from Rule 4(3) the mandatory signing of the petition by the Petitioners, of which the requirement is perceived to be a legal requirement without further options provided. I noted the view expressed in later part of paragraph 15 above. Is it the law as set out by the case of Aihi V Isoaimo & Election Commission of PNG[2] which the Counsel for the Respondent relies on. That is indifferent from Rule 12. Rule 12 stated that if “no security for costs is paid to the satisfaction of the Registrar the petition shall not be entertained until such security is paid”. Simply mean, by failure to pay the security for costs the Court shall not entertain the petition even to commence by listing it for a motion date to manage the progress of the case forward. It will only render a temporary stay of the case, or halt, or is allowed to lie dormant and untouched until the security for costs is paid. As soon as a petition and petition fee is filed and paid a valid cause of action is pending before the High Court. Whenever the security for costs is paid the proceedings is revitalised and progress forward until it is heard. Of course non-payment should not be permitted to linger on for eternity, or for longer period of time, that would prejudice the rights of the Respondent.
19.	This view may be perceived as contrary, and may not have the support of S.83 (2) Act, which confine to the merit of the petition. Only when the merit of the petition is assessed to be frivolous and vexatious may be summarily dismissed by the Court. This application, so far as this issue is concerned, is premature. The issue of merit of the petition is yet to be considered by the Court, so that frivolous or vexatious can be used as measuring rods matching up with the strength of the case in the balance.
20.	This is a cross application. The Petitioner is allowed to prosecute his application to extend time, to give reasons for his failure which he did and I now consider, see next subheading. Whether his reasons are convincing or not is irrelevant. The Regulation offers no hash penalty, but a temporary stay until the security for costs is paid before the case is resumed.
21.	If in a circumstance where non-payment has reached saturated stage and the Respondents has suffered legal implications and prejudices then the Respondent can apply for dismissal of the petition. However as Palmer ACJ stated in paragraph 6 on page 4 in the case of Malirbaal V Oti[3], that failure to pay within time period was not fatal to the case. It is the issue of delay that dominated argument in that case.
	The issue of delay:
22.	It is an undisputed fact that the Petitioner failed to pay the security for costs by 21st January 2015. Subsequently he paid the required amount of $10,000.00 on 19th March 2015, roughly 57 days after the last date to pay by 21st January 2015. Explanation as to why it was not paid on the date as required was by way of a sworn statement filed on 9th June 2015. The only reason for not paying in time was that petitioner did not have $10,000.00.
23.	The argument is that the reason for not paying in time and the reason for filing explanation as to delay is explicitly unacceptable. It is a clear breach of Rule 12 which is constructed in a mandatory term.
24.	It is the situation, perse, that the Court now hears the Petitioner’s application to extend time. In the case of Malirbaa V Oti His Lordship (Palmer ACJ)[4] dealt with the issues related to enlargement of time.
25.	It is not disputed that this Court has discretion to extend the time limit as prescribed under the Rules. The exercise of that discretion is confined to being shown good cause. In the above case Palmer ACJ in determining good cause, stated, there must be in existence evidence before the Court before it can exercise its discretion, the cause given must be adequate, proper or valid, not every cause will activate the Court’s discretion. The Courts discretion cannot be invoked if the reason given is inadequate, improper or unreasonable. The mere fact that a good cause is given does not imply the time limit will be enlarged, and possible prejudice to the Respondent. The Court has discretion whether to grant extension of time or not.
26.	Should this Court exercise its discretion in this case? His Lordship Justice Palmer ACJ made reference to the case of Saemala V Ulufa’alu,[5] which His Lordship Awich in exercise of his discretion enlarge time by taking into account the following (1) Public interest in having the petition determined (2) failure to comply was not contumelious (3) more due to ignorance of the Rules on the part of the Petitioner (4) that the Respondent had not suffered prejudice from the delay or failure to comply.
27.	Is 57 days delay unreasonable and improper? The reason given by the Petitioner for such delay was that he did not have $10,000.00 so he could not able to pay the security for Cost in time. Beside that his sworn statement implicates that he is a family man. The only source of income he had was in relation to his small painting business. He explains that $10,000.00 is a substantial amount that a reasonable family man like him would not access to.
28.	How many working families in Solomon Islands have $10,000.00 readily available in their bank account? Or anyone with a small business like the Petitioner does have $10,000.00 in their bank account ready to be spent. Through experience, the salaries payable to Public Officers in this country, is such that one cannot save, but for daily family support and sustenance only. Even Public Officers paid on lower supper scale level, the net pay is insufficient to secure a $10,000.00 in a bank account. How much more are small business owners as the Petitioner? I agree $10,000.00 is a substantial amount of money for an ordinary small business Solomon Islands to have it available at all time whenever it needed. This boils down to the real fact that people with small business are struggle to afloat their business at the same time sustain their families, which is an important obligation.
29.	I do not think that failure here tantamount to contumelious or that delay was inordinate. Despite the delay there is no evidence that the Respondent has been prejudiced. I am satisfied that this case warrant the exercise of Court’s discretion.
	This issue of service of the petition:
30.	Rule 13 of the Election Petition Rules 1976 states that; “serving of the petition upon the Respondent and giving of the notice of the nature of security shall be ten days exclusive of the day of presentation” From simple calendar calculation service should be done on 2nd January 2015. However, service was actually done on 30th December 2014.
31.	Although the service was done at the Respondent’s home, it would seem contrary to the requirements of Rule 14 that service of the petition shall be personal. The Respondent by his Counsel nullified the service because there was no notice of the nature of security has been given and attached. He argues that the provisions are mandatory which were not complied with.
32.	In respect of no notice of the nature of security been served and non-payment in time, I have succinctly deal with that issue under the heading issue of “delay” as above. I need not rehearse the same again.
33.	Noted from the facts; the petition was served on the Respondent by leaving a copy at his home on 30th December 2014. By then it was two more days left before expiry of ten days required by Rule 13 for service. It would appear at the time of service the Respondent was in Makira therefore personal service as required by Rule 14 did not eventuate. No evidence suggests that he will return. It is reasonable that should service is prolonged until the Respondent returned to Honiara would be late. The question to pause is was service in the manner it was done proper and valid and where the Court can exercise discretion that there was good cause for delay and time can be enlarged. After reasonable effort has been done to effect personal service and cause the matter to come to the knowledge of the Respondent.
34.	I am satisfied reasonable effort had been made to effect personal service, but unable due to the absent of the Respondent from Honiara and even his residence. Based on the facts, I am not hesitant to exercise discretion, and I consider that failure to comply was premised on good cause. Therefore service done is sufficient service.
35.	On page 4 paragraph 2, His Lordship Palmer ACJ in the case of Malirbaal V Oti, refer to the words of Lord Atkin in Evans V Bartham[6] quoted with approval in Allison V Monque Madlin[7], by McPherson and Casey JJA, and also referred to by Awich J that,
		Unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.”
	Insufficient facts:
36.	Counsel for the Respondent submits that petition itself has insufficient facts. Special reference is made to paragraphs 3 (i), 3(ii) and 3(iii). On close scrutiny those paragraphs contain allegations which the Petitioner wishes to prosecute. I agree with the Counsel that the alleged offences did not particularise the electors, places where the alleged offences occurred and on what dates and occasions. I noted the petition was drafted by the Petitioner with the assistance of his friends. No legal practitioner was involved. The Counsel is right that Petitioners should avoid filing petitions on their own.
	Application for extension of time:
37.	I dealt with the application for extension of time under the sub-headings, security for costs and delay. I also noted that the application also seek leave to amend the petition. On close scrutiny on the draft amended petition, it would appear that the draft is not an amended petition but a new fresh petition. Filing of an amended petition can only be done by way of leave granted by the Court. There was no application for leave prior to the filing of the amended petition. I am afraid I cannot introduce a fresh petition at this stage. What ought to be done now is that the Petitioner must furnish further and better particulars of the original petition filed on 24th December 2014, within 14 days from the date of this Ruling. Particularisation will base only on allegations as provided in the original petition which involved Provincial Assembly Members of Wards 14, 15, 16, 18 and 19. There will be no additional allegations. Should this Court accept extras, it would mean condoning a fresh petition to be filed, of which time to file has long gone and time has barred from filing fresh petition.
	Conclusion:
38.	In conclusion failure to pay security for costs within the required period is not fatal to this case. So long as petition has been filed and petition fee has been paid a cause of action has been legally filed in Court. Non-payment of the security for costs will only render a stay and delay of the commencement of proceedings by the Court to entertain the proceeding. As soon as it is paid the process will resume until subsequent hearing of the petition. It may be late; whatever circumstances and effects arise in due course is a matter for the Respondent to take possible action.
39.	As I have outlined, I accept the reason for delay for payment of security for costs. Beside that failure to comply was not contumelious and that the Respondent had not suffered prejudice from the delay. And that justice dictates that I exercise discretion by enlarging time for payment of security for costs.
40.	On the issue of amending the petition, leave is granted only to allow the Petitioner to provide further and better particulars to the original petition filed on 24th December, 2014, and non other.
	Orders:
	1.		Dismiss application to summarily dismiss the petition.
	2.		That for payment of security for cost be enlarged to 19th March 2015, date the Petitioner paid the security for costs.
	3.		Leave is granted for the Petitioner to file further and better particulars based on the original petition filed on 24th December 2014.
	4.		Cost is borne by the Respondent.
	The Court.

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^[1] [1892] UKLawRpKQB 9; (1892) 1 QB 273 at 291
^[2] (2014) N564
^[3] (200) SBHC 13; HC-CC 012 of 2002 (26 March 2002).
^[4] Ibid, para.16
^[5] CC 251 of 1997.
^[6] (1973) AC 473
^[7] CAC No. 7 of 1996