Movobule v Tozaka [2016] SBHC 44; HCSI-CC 456 of 2014 (3 March 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona PJ)

Civil Case No. 456 of 2014

IN THE MATTER OF: The National Parliament (Electoral Provisions) Act cap. 87 and the Election Petition Rules Act Cap. 87 and the Election Petition Rules 1976

AND IN THE MATTER OF: A Petition to the National Parliament Election of North Vella La Vella Constituency.

BETWEEN: JENNINGS MOVOBULE Petitioner

AND: MILNER TOZAKA First Respondent

AND: ATTORNEY-GENERAL Second Respondent
(Representing the Returning
Officer for North Vella La Vella
Constituency)

Date of Hearing: 27^th January 2016
Date of Ruling: 3^rd March 2016

Mr. D. Nimepo for the Petitioner
Mr. J. Sullivan and Mr E. Soma for the first Respondent
Ms. L. Fineagonofo for the Second Respondent

RULING ON APPLICATION FOR DETERMINATION OF PRELIMINARY MATTER

Faukona PJ: This is an application as amended on 16^th June 2015 for this court to hear and determine preliminary issues of law. The application is supported by the second Respondent.

There was a national general election held on 19^th November 2014, to elect new members of Parliament to fill the 50 seat parliament of Solomon Islands.

2.	On 26th November 2014, the result of voting in North Vella La Vella Electoral constituency was published in the National Gazette declaring the First Respondent to be duly elected for the North Vella La Vella constituency. The official results after counting was that the First Respondent polled 1509 whilst the Petitioner polled 1194 votes, a difference of 315 votes. From the result, it could be deduced that the Petitioner was the runner up candidate.
3.	Being aggrieved of the election results, the Petitioner thereby filed three Petitions. The first one was filed on 24th December 2014. The petition on the face of it was signed by the legal practitioner representing the Petitioner.
4.	A second petition was filed with amendments on the 3rd February 2015. Again that petition was signed by Legal Counsel representing the Petitioner. It was served on the first Respondent on 4th February 2015.
5.	The third petition was filed on 24th of February 2015 and was served with further amendments.
6.	The First Respondent filed his defence on 4th March 2015, and the second Respondent filed its defence on 1st April 2015.
	The issues:
7.	There are two issues of law which the application is brought to pursue pursuant to Rule 12.11 for determination. The issues are;
	(a)			Whether on the basis of facts pleaded in paragraph 8 of the First Respondent’s defence, the petition is statute barred; and
	(b)			Whether the petition is null and void ab initio pursuant to Rule 4 (3) of the Election Petition Rules 1976 (“the Election Rules”).
	Whether the petition is null and void ab initio:
8.	The word void ab initio simply mean void from the beginning. Rule 4 of the Election Petition Rules 1976 sets out the contents and form of a valid petition. Particularly, Rule 4 (3) requires that all the Petitioners must sign the petition. The English language used by the Rules is clear and unequivocal. If there is a single Petitioner he must signed the petition. By literal reading of the provision requires the petitioner or petitioners personally must sign the petition.
9.	The word “shall” use in Rule 4 (3) makes the signature clause peremptory and mandatory. It is a simple requirement but must be strictly complied with. The consequence of non-compliance with its requirement is fatal to any election petition proceeding.
10.	In the case of Sasako v Sofu[1] the Court dealt with the same issue of non-compliance with Rule 4 (3). It was held that Rule 4 (3) required the petition to be signed by the Petitioner as a mandatory requirement. It was held to the effect that the petition signed by the legal practitioner of the petitioner was a nullity for non-compliance and the matter was struck out. Another point noted in that case was that since the petition was not signed by the Petitioner, there was no valid petition presented on the date of filing, to invoke the power of the Court to consider the Petitioner’s case.
11.	Meantime, there is no provision in the Election Rules, which allow for the Petitioner’s legal practitioner to sign the petition. To interpret the provision as broad as to convey other persons apart from the Petitioner can sign the petition, would defeat the aim of the proviso and would be unconstitutional having regard to the doctrine of separation of powers to the court greater than the unlimited legislative power given to the Chief Justice under the Act.
12.	Section 85 of the Act provides that the Chief Justice may from time to time make rules for the practice and procedure to be observed in relation to election petitions. Subject to such rules, the procedure and hearing of an election petition, shall, as near as circumstances will admit, be the same, and the Court shall have the same powers, authority, and jurisdiction, as if it were hearing a civil action.
13.	Currently there are observatory rules formulated by the Chiefs Justice in existence, but none of its provisions has diverge from the requirement of Rule 4 (3) that a petition can be signed by another person apart from the Petitioner. Further to that the signature requirement has not been discarded in this jurisdiction; hence, its requirement must be followed.
14.	In adopting the literal rule approach of interpretation of law the statement by Higgins J in Amalgamated society of Engineers V Adelaide Steamships Co. Ltd [2]expounded as thus;
		“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 an examination of the language used in the statute as a whole. The question is, 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.”
15.	On the notion of complying with the meaning and obligation, whether the meaning is inconvenient, prejudicial or absurdity, the Court must follow. In Queen V Judge of City of London Court[3] Lord Ester said:-
		“If the words of an act are clear, you must follow them even though they lead to a manifest absurdity. The court has nothing to do with the question whether legislature has committed an absurdity”
16.	Furthermore, there is no residual power in the High Court to cure the fundamental defects in the Election Rules or Petitions. However, accordingly I must then uphold the Sasako case, which must be followed. The failure of the Petitioner to sign the petition required under Rule 4(3) is incurable, and render the first petition a nullity. The second petition, which was not also signed by the Petitioner, must carry the same fate.
	Whether the petitions are statute barred:
17.	A petition is a formal request to the Court asking for consideration of the Petitioners grievances. Normally it contains facts which cause of action is based. In the current case the Respondents submit that the petitions filed by the Petitioner are statute barred because they were not served as required by the rules.
18.	It is not in dispute that the first petition was presented within time. The issue arise as to why it was not served upon the Respondents within 10 days as required by Rule 13 of the Election Rules. The last date for service should be by 5th January 2015. The first petition was in fact not served within that time and indeed has never been served. The Petitioner though not directly admitted but sought excuse for his failure by relying upon an alleged difficulty in locating the first Respondent during the 2014/2015 Christmas New Year period. In other words he failed to serve because he allegedly did not know the first Respondent’s where about.
19.	The reason given for not effecting service is a bluff, one which is hard to accept. The first Respondent is not a strange person to the Petitioner. Positive assumption has it that both came from the same electoral constituency. The Petitioner knows where the first Respondent’s home is in Vella La Vella, and should know where his home is in Honiara. If the first Respondent had been appointed as one of the Ministers in the previous Government then the Petitioner and his Counsel should know where his office is located in Honiara, as he was still a care taker Minister until a substantive Minster was appointed
20.	The truth about the failure by the Petitioner and his Counsels to serve is manifested by the non-service upon the second Respondent, the Attorney-General. That Office has never moved location ever since and was manned by several Legal Counsels. Even during Christmas and New Year period that office is never closed. The reason for not serving the petition upon the second Respondent is not disclosed hence cannot be ascertained. Conclusion can be inferred from the actions of the Petitioner, that there was never been an attempt or effort to serve both Respondents at all. There was nothing shown that all reasonable effort have been made to effect personal service and cause the matter to come to the attention of the respondents.
21.	Pursuant to Rule 41 the Court may enlarge any period of time for the purpose of “good cause”. What constitute good cause was considered by Palmer A, CJ: (as he was then) in the case of Malirbaal V Oti[4]. In that case service was not done within the time limit; the reason was inadvertence. Ten days after the time for service expired, the Petitioner filed an application for enlargement of time pursuant to Rule 41. His Lordship held that in determining “good cause” the following are to be considered;
	(a)				There must be material before the Court upon which its discretion can be exercised[5]
	(b)				The cause given must be “adequate, proper or valid”
	(c)				Not every cause will activate the Court’s discretion
	(d)				The Courts discretion is not enlivened if the reason given for compliance is inadequate, improper or unreasonable
	(e)				The mere existence of good cause does not imply the time limit will be enlarged,
	(f)				Good cause was found in Saemala V Ulufa’alu (where personal service could not be affected on a respondent who was out of the jurisdiction attending to state matters).
	(g)				Possible prejudice to the respondent is another relevant consideration.
22.	I noted that non-service in this case was not through inadvertence; this is not a case of service of the first petition few days out of time. It is a non-service at all.
23.	The Petitioner’s case is that the petition was filed during Christmas/New year period and he does not know the whereabouts of the first Respondent. The argument against that position is that time might be difficult, the Petitioner and his solicitor could have filed an application seeking leave to serve the first Respondent by substituted service. The Court has power under Rule 14 to order substituted service provided the application is made within five days after the petition is presented and that there is evidence to show that all reasonable efforts have been made to effect personal service and cause the matter to come to the attention of the respondent. There is no such application filed for substituted service in a manner as required by the Rules. Therefore the reason given for non-service is unacceptable.
24.	The thrust of the Petitioner case is based on four grounds;
	1.		That the first Respondent was unable to be located during the festive season.
	2.		The issue of public interest
	3.		The First Defendant has not suffered any prejudice and
	4.		There is no delay.
25.	The first issue has certainly been succinctly dealt with in paragraphs 18, 19 and 20 above. The second and the fourth issues though constructed under two separate headings comprised of the same two elements, they are public interest and Court’s leniency. In fact issue 4 is a repetitive of issue 2. Therefore require a single approach rather than being engaged in duplicity and repetitive adjudication.
26.	The Petitioner’s submissions are actually focused on filing and service of the petitions. Whilst he acknowledges he did not sign the petitions, services were not done within ten days as required by the Rules. Unfortunately, there is no explanation in evidence as to his failure to apply for leave to effect substituted service under Rule 14. That rule places substantive responsibility on the Petitioner if he cannot serve his election petition after filing. The Court has power under that provision to grant substituted service and it may order that what has been done shall be considered sufficient service.
27.	Lack of explanation for failure to sign the petition or to carry out the onus, instead the submission advocate that leave was granted to amend the petition to be filed. It is accepted by the Petitioner that the first mention date was on 5th February 2015. On that date according to the Court record, Counsels for the Petitioner and the Second Respondent appeared. There was no one representing the First Respondent or himself appeared in person despite service of the second petition was done on the 4th of February 2015.
28.	Revelation from the record attested that the Counsel for the Petitioner by submission stated that an amended petition was filed and served on the first and second Respondents on 4th February 2015, and sought adjournment to 6th March 2015. Since that was the first motion date, when was leave granted to enable the Petitioner to file an amended petition. Certainly not on 5th February 2015 because it had already been amended, and had been filed and served even prior to first motion date. The question is when leave was granted by the court and on what particular occasion. It would now appear that the second petition was amended without leave granted by the court and was not signed by the Petitioner as well. In those circumstances the first and second petitions must be invalid and statute bar.
29.	Despite the breaches of the Electoral Act and the Rules, is this a situation where leniency can be exercised? An act of leniency is determined to be so, as a product of the Court being satisfied on the grounds as exerted, which the Court can exercise its discretion with reasonableness and justification.
30.	In the current case, there is breach of Rule 4 (3) in which the Petitioner failed to sign the petition. There is also breach of Rule 13 that the petition was not served within ten days. There was no application for enlargement of time hence noncompliance with Rule 41, there is failure to comply with Rule 14, no application for substituted service, and there is failure to seek leave of Court. Can this Court expresses compassion and lends; leniency on a plate? No such court of law will exercise discretion in those circumstances. The petition was poorly prepared and poorly administered and poorly prosecuted.
31.	To support the grounds of public policy or public interest and leniency the Counsel for the Petitioner made reference to the cases of Alison V Medlin[6] and Saemala V Ulufa’alu[7]
32. 33.	The case of Alison dealt with the question whether delivering documents to a secretary of an advocate office was effective service on the advocate or recognised agent under Order 9 Rule 14(1). As facts had manifested at the time of service, the appellant was not in Solomon Islands and there was no order from the Court for substituted service in accordance with Order 9 Rule 14 (1). It also deals with the exercise of the Court’s discretion to strike out the matter which was frivolous and vexatious. The first issue is whether the service was proper or not, and whether in the absence of the appellant personal service could not be effected hence prompted application for substituted service. In this case, service on the first Respondent was not done and the petition was signed not by the Petitioner. The issues are different. As it reflects Alison’s case was determined under 1964 Rules whereas in this case Election Petition Rules specifically apply and concern on non-compliance with strict service requirement of the Election Petition Rules.
34.	In Saemala’s case there were number of issues considered by the Court. The list range from good cause, public interest, failure to comply was not contumelious, no prejudice suffered and no delay. Those facts provided the basis upon which the Court exercises its discretion by authority of Rule 41 and enlarged time required to provide or serve the petition.
35.	In this case, there was no application for enlargement of time filed so that the Court would take account of those facts, which are pertinent to take into consideration. If there was no application filed, the Court is not legally bound to exercise its discretion. The discretionary power is not available and cannot be exercised in a vacuum.
	Second Petition:
36.	The second petition was filed on 3rd February 2015 and was served on 4th February 2015. It was not signed by the Petitioner as required by Rule 4 (3).
37.	Rule 25 of the Election Rules allows for election petition to be amended by leave of the Court by motion on notice to the other parties. No notice was given and no leave was granted. Therefore, the second petition is taken as a fresh petition and not an amendment of the first one.
38.	Even if leave was granted (which is not shown on Court record) the first petition is a null and void document. The fact that the Petitioner did not sign was a breach of the mandatory requirement, therefore render the petition fatal[8]
39.	In conclusion, it is only proper in all the circumstances of this case to adjudge that the first and second petitions are null and void ab initio.
	The third Petition:
40.	The third petition was filed on 24th February 2015 and was served with further amendments. There was no leave granted by the Court for the amendment of the petition, it was filed out of time and there was no application for leave to extend the time period. It would appear the second and the third petitions are unauthorized independent petitions. All in all they are statute barred on the for the same reasons. They must not be permitted to proceed and should be rejected forthwith.
	Orders:
	1.		The first and second petitions are nullities;
	2.		All the petitions are statute barred and therefore struck out.
	3.		The proceedings are hereby dismissed.
	4.		Costs be borne by the Petitioner with certification of Queens’s Counsel.
	The Court.

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^[1] Cc 454 of 2014 (2 June 2015)
^[2] (1920) HCA 54. (1920) 28 CLR 129.
^[3] (1892) 1 B273 at 290
^[4] (2002) SBHC 13
^[5] Civil Service Co-operative society V General Steam Navigation Co. (1903) 2KB cited with approval
^[6] Appeal case No. 7 of 1996
^[7] (1998) SBHC; HC-CC 251 of 1997 (2 February 1998).
^[8] Sasako V Sofu (2015) SBHC 48, HCSI-CC 454 of 2014 (2 June 2015)