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Wale v Governor General [2019] SBHC 43; HCSI-CC 244 of 2019 (24 May 2019)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Wale v Governor-General


Citation:


Date of decision:
24 May 2019


Parties:
Mathew Cooper Wale v Governor General, Prime Minister , Attorney General, Our Party, Political Parties Commission, Registrar of Political Parties


Date of hearing:
17 May 2019


Court file number(s):
CC 244 of 2019


Jurisdiction:
Civil


Place of delivery:



Judge(s):
Palmer; CJ


On appeal from:


Order:
The application to strike out is granted, the Defendants are to have their costs on indemnity basis with certification for Queen’s Counsel.
I grant orders accordingly.


Representation:
Mr. G Suri for the claimant
Mr. P Afeau for the first Defendant
Mr. T Matthews QC and Mr. W Rano for the second and fourth Defendants
Mr. S Banuve, Solicitor General for the third, fifth and sixth Defendants


Catchwords:



Words and phrases:


Legislation cited:
Political Parties Integrity Act 2014, Electoral Act 2018, s107, National Parliament Act, Civil Procedure Rule 2007


Cases cited:
Ulufa’alu v Attorney General [2002]SBCA 3, Anisminic Limited v Foreign Compensation [1969] Ac 147
O’Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237
Council for Civil Unions v Minister for the Civil Service [1985] AC 374
Associated Provincial Picture House Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, Bulososo Development Co v Valepelo Development Co. [2017] SBCA 2
Sa’oghatoga v Mugaba Atoll Resources Company [2015] SBCA 4
Noro v Saki [2016] SBCA 18, Wenlock V Moloney [1965] 1 WLR 1238
Hubbck v Wilkinson [1898] UKLawRpKQB 176; [1899] 1 QB 86
Prime Minister v Attorney General [1998] SBCA 1
Ulufa’alu v Attorney General [2004] SBCA 1

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case Number 244 of 2019


MATHEW COOPER WALE
Claimant


V


GOVERNOR-GENERAL
First Defendant


PRIME MINISTER
Second Defendant


ATTORNEY GENERAL
Third Defendant


OUR PARTY
Fourth Defendant


POLITICAL PARTIES COMMISSION
Fifth


REGISTRAR OF POLITICAL PARTIES
Sixth Defendant


Date of Hearing: 17 May 2019
Date of Judgment: 24 May 2019


Mr. G Suri for the claimant
Mr. P Afeau for the first Defendant
Mr. T Matthews QC and Mr. W Rano for the second and fourth Defendants
Mr. S Banuve, Solicitor General for the third, fifth and sixth Defendants


Palmer CJ:

  1. This is an application for strike out by the second and fourth defendants pursuant to rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (“the CP Rules”) and the inherent jurisdiction of this Court on the grounds, that the Judicial Review Claim filed on 29th April 2019 and amended and filed on 1st May 2019, showed no cause of action known to law in the pleadings and or otherwise the claim is frivolous, vexatious and an abuse of the Court’s process.
  2. The application was filed following service of the Judicial Review Claim on the defendants.
  3. A judicial review claim is governed by Chapter 15.3 of the CP Rules. Rule 15.3.12 provides that a defence should be filed within 14 days of service of the claim. After filing of the defence and service, the court is required to convene a conference hearing (rule 15.3.16) to determine a number of preliminary matters (rules 15.3.17 and 15.3.18) among which, it needs to be satisfied that the claimant has an arguable case and that the claimant is directly affected by the subject matter of the claim.
  4. To be satisfied of those matters, the court may consider papers filed in support of the proceeding and hear argument from the parties (rule 15.3.19), and if it is not satisfied about the matters set out in rule 15.3.18, then it may decline to hear the claim and have it struck out.
  5. My reason for going into detail on the process and procedure set out under Chapter 15.3 of the CP Rules is that, while it is correct to say that at a Chapter 15 Conference, the court may consider ending the proceedings early, that does not preclude any earlier applications to strike out. Some matters should not even require a defence to be filed. Given the overriding principle[1] at the start of the Rules, it should be possible to have a strike out heard as soon as possible thereby avoiding the unnecessary expense of preparing and filing a defence. Care however needs to be taken so that the time for filing a defence is preserved, just in case the strike out application is not successful.
  6. That is the basis in which the Second and Fourth Defendants, joined by the First, Third, Fifth and Sixth Defendants have come and the basis on which this court has allowed that application to be made.
  7. Rule 9.75 of the CP Rules cater for such situation to strike out a claim in other circumstances.
    1. the proceedings are frivolous or vexatious; or
    2. no reasonable cause of action is disclosed; or
    1. the proceedings are an abuse of the process of the court;
  8. I have gone into some lengths to clarify this process so that there is no confusion on the right and validity of such an application to be made even under a Chapter 15.3 application for judicial review.

The brief and undisputed facts of the case.

  1. On 16 January 2019, an application to register the OUR Party, the Fourth Defendant was lodged with the Political Parties Commission (“PPC”). The President of the party was named as the Hon. Manasseh Damukana Sogavare, the current Second Defendant.
  2. The PPC caused a notice to be published in the Island Sun and Solomon Star on the 30th and 31st January 2019, respectively.
  3. On the 5th February 2019, the date for the National General Election (“NGE”) was published; this was to be on the 3rd April 2019.
  4. Election results were declared on 4th, 5th, 6th and 7th April 2019 by the Returning Officers of all 50 constituencies.
  5. On the 10th April 2019, the results of the NGE were formally published in the Solomon Islands Gazette No. 57 on Wednesday 10th April 2019.
  6. On the 9th April 2019, the PPC met and approved the registration of the OUR Party.
  7. On the 14th April 2019, a coalition agreement was entered into by the Fourth Defendant with Kadere Party, Democratic Alliance Party and People First Party.
  8. Between 16–18 April 2019, nominations for Prime Minister were invited by the Governor-General. At close of nominations, two candidates were nominated, Hon. Manasseh Sogavare and Hon. Mathew Wale.
  9. On 19 April 2019, Hon. Mathew Wale wrote to the Governor-General challenging the nomination of Hon. Manasseh Sogavare. On 20 April His Excellency responded to the letter and stated he would make his decision at the election meeting on 24th April 2019 at the Chambers of the National Parliament.
  10. On 23 April 2019, Civil Case no. 238 of 2019 was commenced by Hon. Mathew Wale in the High Court. On 24th April 2019 at about 9:26 am, the Deputy Chief Justice issued an interim order directing the Governor-General (not a party to the proceedings) to postpone the election meeting until after 26 April 2019.
  11. On the 24th April 2019, His Excellency determined that the election meeting should proceed. Hon. Manasseh Sogavare received 34 votes, Hon. Mathew Wale received zero (0) votes as he and his supporters walked out of Parliament.

The Claim for judicial review.

  1. The claim for judicial review can be summarised as follows.

THE ISSUES FOR DETERMINATION IN THIS APPLICATION.

  1. There are five issues that arise from the claim of the Claimant, which have been conveniently summarised by learned Council Matthews QC as follows:
  2. Mr. Afeau of Counsel for the First Defendant, also identified four similar issues as follows:

(1) Whether the OUR Party was properly registered as a political party.

  1. The Claimant’s case is that the registration of the OUR Party was done on 9 April 2019, when it should have been done after the 10th April 2019 when the results were officially published in the Solomon Islands Gazette.
  2. Section 22(2) of the PPI Act expressly prohibits the PPC from considering an application referred to it under subsection 22(1) of the Act during a defined period of time, being from the day the Governor-General appoints a date for the NGE and ending on the day that the results of the election are declared under that Act.
  3. The Claimant says that the construction of the end date, when results are declared under the PPI Act should be read in conjunction with section 107 of the Electoral Act 2018, headed “Publication of election results” and provides:
  4. Mr. Suri of Counsel for the Claimant submits that the phrase “results of the election are declared under that Act” refers to the publication of the results in the Solomon Islands Gazette as stipulated in section 107(1) of the Electoral Act. The date those results were published being on the 10th April 2019. Accordingly, the registration of the OUR Party by the PPC on the 9th April 2019 was in breach of the provisions of section 22(2) of the PPI Act.
  5. Mr. Matthews QC submits that the period upon which any application lodged during the period of election can be considered ends on the day the election results are “declared”. He says that both sections 106 and 107 speak of what occurs thereafter. Section 106 provides that the Election Official must declare and notify the candidate and the Commission. Section 107, speaks of notifying the Governor-General and publication of the result.
  6. He further submits that according to the sworn statement of Mr. Waisanau filed 1st May 2019, the Returning Officers for each of the 50 constituencies declared the results of the elections on the 4th, 5th, 6th and 7th April 2019 respectively. Corresponding announcements were made throughout SIBC. The Commission further published the election results with the Island Sun and Solomon Star newspapers on the 9th April 2019. He says accordingly, the dates when the election results were “declared” as opposed to “published”, were on 4, 5, 6, 7 and 8 April 2019. The election period therefore ended for purposes of registration on the 8th April 2019.
  7. I note the opposing views on the construction of the phrase “and ending on the day that the results of the election are declared under that Act”. However, some assistance on the interpretation of that phrase, can be gleaned by having a look at the previous legislation. Section 57(1) and (2) of the National Parliament (Electoral Provisions) Act [cap. 87] provides:
  8. Under the former legislation, a two stage process is prescribed. First, is a notification of the results by the Returning Officer (subsection 57(1)) and a publication of the results by the Governor-General (subsection 57(2)).
  9. The second stage of publication of the results in turn is a two tiered process as well. First, the Governor-General causes the results to be published locally in such manner as to him may seem appropriate (paragraph 57(2) (a)), and secondly, the publication of the results in the Gazette as soon as practicable (paragraph 57(2) (b)). In the first instance, the results are published immediately or shortly after he receives notification of the results. I take judicial notice of the fact that this used to be done by an announcement in the Solomon Islands Broadcasting Corporation.
  10. The publication in the Gazette usually comes after. Under the former legislation, while both publications are valid, the earlier publication is when the notices are declared by the Governor-General soon after he receives notification of the results.
  11. Against this backdrop the new legislative provisions when enacted, (sections 106 and 107), effected some changes but in principal retaining the process of publication of results. First, under the Electoral Act 2018, the role of the Governor-General is replaced by both the Returning Officer and the Commission. Instead of the Governor-General, making a declaration of the winning candidate as soon as the counting of votes is completed, (paragraph 106(a)), it is now the Returning Officer who does that.
  12. The Returning Officer then, (paragraph 106(b)), notifies in writing the elected candidate and the Commission of the full results of the election.
  13. On receipt of the notice from the Returning Officer, the Commission, then does two things (subsection 107(1)), it sends a copy of the notice to the Governor-General and the Clerk of Parliament, and publishes the notice in the Gazette as soon as is practicable. (Note, the Governor-General no longer is required to do anything other than be served with a copy of the notice.)
  14. In essence the process of publication of results remain the same under the new legislation. There are still two dates when the results are announced or made known to the public. First, when the results are “declared” by the Returning Officer under paragraph 106(a), and when they are “published” in the Gazette under paragraph 107(1) (b) by the Commission.
  15. In considering the correct interpretation to be applied, it is pertinent to note the use of the words “declare” and “publish” in the new legislation. While those words are often used interchangeably, that is not the case in the amendment contained in the Electoral Act 2018. In the previous legislation, the same word “publish” is used, describing two distinct time frames, an earlier date when the Governor-General publishes (announces) the results (through SIBC), and when they are published in the Gazette. When these are read together with the words used in the Electoral Act, it is clear the same time frames are retained but differentiated by the words “declare” to indicate an earlier date of publication, and the word “publish” to indicate a later date when the results are published in the Gazette. And so, just as there were two time frames under section 57(2) of the National Parliament (Electoral Provisions) Act, the new legislation also refers to the same.
  16. Accordingly, when the language used in section 22(2) of the PPI Act is considered, it is plain and obvious in my view the same distinction is maintained, in terms of the two different time frames, being, the declaration of the results by the Returning Officer and publication of the results by the Commission in the Gazette.
  17. I am satisfied the construction proffered by Mr. Matthews QC is not only consistent with the language used in the earlier legislation but with the plain and literal meaning of the word “declared” in section 22(2) of the PPI Act. Where there are two possible dates, the earlier date prevails, provided there is no conflict; I find none in this instance.
  18. I am satisfied based on the facts before this court, all election results were declared by the Returning Officer on the 4th, 5th, 6th and 7th April 2019 respectively and accordingly the registration of the OUR Party on 9th April 2019 did not offend against the requirements of section 22(2) of the PPI Act.
  19. The answer to the first question therefore must be in the affirmative.

(2) Whether OUR Party was entitled to enter into a coalition agreement.

  1. The Claimant’s submission under this issue is based on his construction of sections 53(1) and 45(1) of the PPI Act. The two sections provide as follows:
  2. The crucial argument of the Claimant under those two provisions is two-fold, both premised on the submission of valid registration under the PPI Act. He says, under section 53(1), only a party that has been registered before the elections may negotiate and enter into a coalition agreement with other political parties.
  3. Under section 45(1), he equally says, unless a party is registered before the elections, it is prohibited from selecting, endorsing or nominating any person as its candidate for election to Parliament.
  4. The Second and Fourth Defendants on the other hand argue that registration cures all; no such restrictions is placed on the plain and literal reading of those relevant sections. They say a political party can be registered at any time, either before or after a general election. Registration of a political party can be made provided it complies with the requirements set out in ss 19, 20 and 21 of the PPI Act. There is no limitation of time when a party must be registered except what is provided in s 22 (2), i.e., the “election period”. It being determined that the election period ends on the date the results are declared, there is no impediment to registration. They say, section 22(2) of the PPI Act proscribes the time during which the PPC can “consider” an application for registration, but does not prohibit or restrict, at any time, any other steps being taken in relation to it. In particular, it does not prohibit the PPC or the Registrar of PP from approving, notifying, or registering a party, it only constrains the anterior step of “considering” the application by the PPC.
  5. They argue while the Fourth Defendant did not contest as a registered party during the elections, there is no restriction that a non-contesting political party is prohibited from soliciting memberships from members of the public or from the members of parliament. They say this construction is consistent with the right of members of parliament who may have contested as independents to renounce their status and join a political party of their choosing[2]. The decision in Wale v. AG (ibid) preserves the fundamental right of association, the right to join an association (a political party) of his choosing. That must necessarily include joining a political party that did not contest an election. That right they say is protected by the Constitution.

The flaw in the argument of the Claimant.

  1. The flaw in the submission of the Claimant, that section 53(1) of the PPI Act, only caters for a party that has been registered before the elections, which may negotiate and enter into a coalition agreement with other political parties, is that to achieve that conclusion or result requires reading into the said provision restrictive or limiting words, which do not exist. Section 53(1) provides:
  2. It does not say that only a political party that is registered before the election may negotiate and enter into a coalition agreement with other political parties; neither does it say that unless a political party is registered before the elections it may not negotiate and enter into a coalition agreement with other political parties. What the Claimant contends and ask the court to do is to read words into the legislation and to seek to amend law, which is the role of Parliament, not the role of the Court, which can only interpret and apply the law.
  3. There are two possible scenarios which may occur in relation to this provision. A political party may, before an election or, after an election, negotiate and enter into a coalition agreement with other political parties. The prerequisite or pre-condition, to any effective negotiation and coalition agreement is the fact of registration, whether it is before or after an election. There is no express prohibition that a party not registered before the elections is prohibited. A political party obviously had to be in existence before it can enter into any negotiations or discussions for a coalition agreement.
  4. The crucial test in this case for the Second and Fourth Defendant is the fact of registration. Once that is established, everything else follows.
  5. It may very well have been the intention and policy statement that only a party in existence prior to the elections, or only a party that had contested in the elections, is eligible to enter into a coalition agreement, but that is not what the legislation says. If that is what was intended by Parliament then it will have to consider an amendment to make that provision clear, but as is, such interpretation is inconsistent with the plain and literal meaning of that provision, and any other interpretation as well, would be repugnant to the constitutional provisions of freedom of association of persons as they stand, in particular to form a political party and, join a political party.
  6. There is nothing to stop a party from being formed and registered after the elections as has been in this case.
  7. The undisputed facts in this case showed, that prior to the elections, on 16 January 2019, an application to have the Fourth Defendant registered had been lodged with the PPC. On 30 January and 31 January 2019, a notice was published by the PPC in the Island Sun and Solomon Star as required by section 20 of the PPI Act. The application however could not be completed for registration by virtue of the restriction imposed under section 22(2) of the PPI Act until after the election period stipulated therein had ended.
  8. There was no legal impediment therefore to the registration of the Fourth Defendant after the election period had ended.
  9. This brings me to deal briefly with sections 45(1) and 55 of the PPI Act. In terms of section 45(1) of the PPI Act, the same construction in section 53(1) applies. I quote:
  10. Under the said section 45(1), Mr. Suri of Counsel for the Claimant submits that the words used are strong words to drive the point home that parties who wish to participate in an election must register before an election. In other words, unless a party is registered before the elections, it is prohibited from selecting, endorsing or nominating any person as its candidate for election to Parliament.
  11. The same reasons given above must apply to the proper construction of that provision. While that section relates to effective registration of a political party to enable it to participate in an election, the peculiar circumstances of the Second and Fourth Defendants relate to effective registration after the election period had ended, which was not envisaged by that provision. And so the specific provisions of section 45(1) do not apply to the circumstances of the defendants and cannot be read as prohibiting them from participating as a duly registered party pursuant to the provisions of the PPI Act.
  12. The same situation would apply to the case of a non-contesting party under section 55(1) and (2) of the PPI Act. I quote:
  13. While section 55 speaks of a non-contesting party, being a party registered under the Act and not contesting in the elections, and provides that it must have an election activity licence to enable it to participate in election related activities, including any campaign or fundraising activities, the Second and Fourth Defendant’s case again falls outside the ambit of those provisions. It was not registered before the elections and so did not require an election activity licence. It was only registered after the elections. It did not fall foul of that provision or said to have circumvented the said requirements by having itself registered after the elections. I find no evidence of any ill intent or attempt to circumvent the legislation other than the fact it seems that the PPI Act was not equipped to take such unforeseen contingency into account. This is not unusual when it comes to the implementation of new legislation, where loopholes are later discovered it is not the role of the court to insert an amendment; that is the sole role of the Legislature to effect any necessary changes which may have been exposed in a court case, such as has happened in this instance.

The right of an independent candidate to join a political party (section 50 of the PPI Act).

  1. This brings me to consider briefly a somewhat unusual provision inserted into the legislation in an attempt it seems to preserve the fundamental right of association of an individual and to join a political party secured by the Constitution. Its inclusion is significant for it seeks to protect or more accurately preserve the individual rights of an independent member to join a political party of his choosing after an election. That is, there can be no legal impediment to an independent member renouncing his status and joining a political party by virtue of that right entrenched in the Constitution.
  2. In the context of this case, to be consistent with the Constitution, there can equally be no legal impediment to him joining a political party that has been registered after an election.
  3. There is nothing in the definition section of a political party, nor in the provisions of the PPI Act, which expressly prohibits a party that may have been registered after the elections from fully participating in any of the activities envisaged in the PPI Act. The fact of registration entitles it to full participation, unless expressly prohibited by the Act.

(3) Whether the nomination of Hon. Manasseh Sogavare as a candidate for Prime Minister is valid.

  1. The submission of the Claimant on the question of validity of the nomination of Hon. Manasseh Sogavare as a candidate for Prime Minister is based on the following grounds:
  2. These submissions can be shortly disposed of for once registration of a political party had been validated under the said PPI Act, and provided all other requirements set out in the Minimum Rules have been complied with, there is again no impediment for the leader of the party with the highest number of seats in Parliament in the coalition agreement to be nominated as Prime Minister pursuant to Schedule 2 to the Constitution. A valid registration overcomes any hurdles to participation in the nomination stage.
  3. To accede to the arguments of the Claimant would be to do what is prohibited for it entails reading into the legislation requirements and restrictions which are not expressly provided for. While it may have been the intention of Parliament, when the Act was enacted, the sad reality of this piece of legislation is that it did not go far enough to cover such contingency that has actually occurred in relation to the registration of the OUR Party.
  4. There will always be teething problems in the implementation of new legislation; that is not unusual. The court however, cannot be asked or required to make a defective law do what it does not say. I do not need to repeat what I have said in this judgment. While the circumstances pertaining to the registration of the OUR Party in this case were somewhat unusual, it is not wrong, illegal or invalid. The law did not expressly prohibit such a party from entering into negotiations of a coalition agreement with other parties, nor did it prohibit such a party from nominating its party leader for the Prime Minister’s post if it had the highest number of Parliamentarians in the Coalition of Political Parties. The pre-condition or qualifying requirement is effective registration.
  5. Finally on this matter it is pertinent to note that the question of validity of registration must lie with the PPC, and the Registrar of Political Parties whose role include supervision and control over the affairs of political parties with attendant powers of suspension and deregistration available to it.
  6. The short answer to this question must be in the affirmative.

(4) Whether the Governor-General’s determination to proceed with the election of the Prime Minister was invalid or otherwise ultra vires.

  1. The question raised in this issue and the matters raised in submission, seek to link or connect the requirements set out in PPI Act to the role of the Governor-General under the Constitution to manage, control and supervise the election meeting of a Prime Minister. They raise matters which would denote a significant shift in the role and functions of the Governor-General, but which since the inception of the PPI Act have remained the same. They have not been amended and so begs the question, what has really changed in the requirements since the PPI Act was passed?
  2. It is important in my respectful view to keep this question at the back of our minds when dealing with the questions raised in the judicial review claim by the Claimant.

(4.1) The issue for determination - error of law.

  1. The Claimant submits that the Governor-General erred in law when he decided to proceed with the election of the Prime Minister on Wednesday 24th April 2019 despite being served with a letter of “protest” by the Claimant dated 19 April 2019, and an interim order from the High Court directing the Governor-General (who is not a party to the proceeding) to postpone the election meeting until after 26 April 2019, while the Claimant’s case is before the Court.
  2. He asserts that his letter of protest was to seek the Governor-General to defer the election meeting to a later date. By rejecting his request and proceeding with the meeting, the Governor-General erred in law and asked this Court to intervene, unravel that determination and inter alia issue an order for the election meeting to be held de novo.
  3. He submits the determination of the Governor-General is not protected by the ouster or privative clause in this instance for there is clearly a breach of the principles of lawful and legitimate administration as set out in the case of Ulufa’alu v. Attorney-General and Others, CAC No. 015 of 2001. In that case, the Court of Appeal had endorsed the long held view set out in the case of Anisminic Ltd v. Foreign Compensation Commission[3], in which the House of Lords further expounded on the powers of the Court to intervene not only in errors that had traditionally been described as jurisdictional errors, that is, errors that went to jurisdiction, but also included errors within jurisdiction, that is, errors which may have been committed within jurisdiction that will equally result in the decision of the tribunal being a nullity. These included the following:
  4. This list of errors will vitiate a decision, sometimes also referred to as “errors on the face of the record”. Lord Pearce in the same decision used the term “conditions precedent” to describe the matters that a tribunal must comply with to avoid acting outside of its jurisdiction. He however, also pointed out errors which may be committed within jurisdiction that would render the decision of the tribunal a nullity. These included, a failure to comply with rules of natural justice, asking the wrong questions, or taking into account matters which it was not directed to take into account, i.e., taking into account irrelevant matters[4]. He says these will render its decision a nullity.
  5. In a later case, of O’ Reilly v Mackman[5] as legal concepts evolve over time and circumstances, the House of Lords had opportunity to further clarify its earlier decision in the Anisminic Ltd v. Foreign Compensation Commission, (“Anisminic”) per Lord Diplock, in which he reaffirmed the principles set out in the Anisminic case and said:
  6. These traditional grounds in the case of Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374, per decision of Lord Diplock were further re-classified under three grounds namely: “illegality”, “procedural impropriety” and “irrationality”. His Lordship said at pp. 410-411:
  7. The modern approach set out by Mr. Suri in his written submissions has to a large extent removed traditional definitions and barriers to the point where almost all power can now be appropriately reviewed under what might be described as the principles of lawful and legitimate administration[6]. This modern approach was recognised and referred to by the learned Authors of de Smith, Woolf and Jowell, in their book “Judicial Review of Administrative Action[7]”. I quote:
  8. Did the Governor-General commit any error of law and failed to take into account the lawful and legitimate administrative requirements under the PPI Act in the exercise of his role and functions? In other words, was he required or obliged to take those matters into account, set out in paragraph[8] 13.9[1] of the written submissions of Counsel Suri?
  9. Mr. Matthews posed the questions as to whether the Governor-General was required to enquire into a nominee’s eligibility, and whether he was required to consider the requirements of the PPI Act as set out in the letter of protest as to validity of nomination as Prime Minister?
  10. Mr. Afeau posed similar questions:
  11. Mr. Banuve, Solicitor General, of Counsel for the Third, Fifth and Sixth Defendants, postulated that the addition of the PPC and the Registrar of Political Parties was designed to have the Court direct or impose upon the Governor-General certain obligations set out in the PPI Act in the discharge of his duties as set out in Schedule 2 to the Constitution.
  12. Mr. Matthews QC, Mr. Afeau, and the Solicitor General, all emphatically deny the imposition of any such additional requirement upon the Governor-General under Schedule 2 to the Constitution, in the discharge of his duties. They say having determined the matter according to law, the jurisdiction of the Court is ousted under paragraphs 10 and 11 of Schedule 2 to the Constitution, to enquire into his decision.
  13. Is there an additional requirement imposed upon the Governor-General by the PPI Act, pursuant to the exercise and discharge of his duties as prescribed under Schedule 2 to the Constitution?
  14. Mr. Suri submits that there is controversy or perhaps confusion as to the correct interpretation of the PPI Act as it relates to the registration of political parties and the nomination of a Prime Minister candidate by a coalition of political parties.
He says there is also ambiguity in relation to the nomination process under Schedule 2, paragraph 2 of the PPI Act and its relationship to the nomination process under Schedule 2 of the Constitution. He submits it is incumbent upon the Court to provide the correct interpretation on their relationship.
He submits that Schedule 2 to the PPI Act should be read as complementing Schedule 2 to the Constitution and that the PPI Act is not in conflict with the Constitution.
  1. In the alternative he submits that the nomination process is not covered under the ouster and privative clause and accordingly, the decision to proceed in the absence of any consideration of the dispute raised about the nomination process amounted to an error of law which is not protected by the ouster clause.

Conclusions.

  1. The heart or the root of the problem with the PPI Act 2014 is that while it has noble and admirable intentions and objectives in its inception to promote integrity in the development and operations of political parties in the country, it had one fundamental flaw or defect in its enactment. While it sought to determine the process of nomination of a Prime Minister pursuant to the requirements of the PPI Act, it miserably failed to institute a corresponding amendment(s) to the relevant provisions of the Constitution, in particular, Schedule 2.

Whether it was by deliberate design, omission or oversight, the harsh reality of that failure, perhaps now on hindsight, is that, it did not go far enough to effect appropriate amendments to the Constitution then. Having failed to do that, which would have required a two-thirds majority of all members of Parliament, what the Claimant in effect seeks to do in this application is to require the court to read those requirements in the PPI Act into the Constitution.

  1. The approach taken and sought to be stressed repeatedly before this court that the PPI Act should be read as complementing Schedule 2 cannot be sustained, for the processes described are distinct. On one hand while the PPI Act sought to introduce other requirements, the process of nomination under Schedule 2 had not changed. If it was the intention of Parliament to forge those additional requirements onto Schedule 2, in particular the requirements on nomination as set out in section 53 and paragraph 2 of Schedule 2 to the PPI Act, being significant shifts in the process of nomination, one would have expected corresponding amendments to Schedule 2 to have been effected. That did not eventuate. The effect therefore is that where there is conflict, the provisions of the Constitution must prevail.
  2. The submission therefore that the Governor-General is obliged to take into account the requirements of the PPI Act must fly in the face of any corresponding amendment to the provisions of Schedule 2 to the Constitution.
  3. As correctly submitted by learned Counsel, Mr. Matthews QC, this is not an application for statutory interpretation or construction of the Constitution or even for that matter the PPI Act? It has been couched in that manner, but in reality is an attempt to ask this court to read into Schedule 2 a requirement or obligation, which does not exist or, which is not open to this court to make. In the result there is nothing further for the Governor-General to consider as set out in the submissions of Counsel Suri.
  4. As also correctly submitted by learned Counsel, Mr. Banuve, and Mr. Afeau, it is too late to make enquiry, for the role of determining the validity of the existence of the OUR Party, the ramifications of entering into and negotiating a coalition agreement etc. all lie at the door of someone else, the Registrar of Political Parties and the PPC, not the Governor-General. The Claimant if aggrieved should have raised objection, challenged registration and required the PPC and the Registrar to suspend and perhaps de-register the OUR Party under the appropriate legislation.
  5. As at the 24th April 2019, the fact of the matter is that the OUR Party was a duly registered party under the PPI Act, enlivened by registration and duly clothed with the capacity to enter into a coalition agreement to form a Government or an opposition, never mind the fact it did not contest in the NGE. As pointed out in this judgement, if the requirement of participation in the NGE had been a prerequisite and or a pre-condition to registration, that should have been inserted into the PPI Act in no uncertain terms with consequential amendments to Schedule 2 to the Constitution, more specifically a requirement which states, that the Governor-General will only accept nominations from a party that had contested in the NGE.
  6. The submission therefore is fundamentally flawed from the outset. There is no other requirement other than what is stipulated in paragraph 3(2) of Schedule 2, that a candidate may be nominated by four other members. Once that is fulfilled, the Governor-General is obliged to accept such nomination.
  7. Secondly, even if there were such a requirement, there was nothing on the facts before him to consider and to decide in any other way.
  8. It has been submitted by Counsel Suri that he should have deferred the meeting pending determination of the matter in cc 238/2019 before the Court, but with respect, as filed, the orders sought and issued in that matter were not only also fundamentally flawed and defective, but contained no cause of action known to law for the following added reasons.
  9. First, the Governor-General was never a party from the outset in cc 238 of 2019. It is trite law, a third party cannot be the subject of any orders of the Court unless he had been joined as a party and made subject to the jurisdiction (supervision and control) of the court. The court has no power save as expressly provided by law to compel anyone to abide by its orders, for in the event of failure to comply, the court cannot enforce such orders. The decision by the Governor-General accordingly not to comply with those orders cannot result in any sanctions taken against him, for such were the defective nature of those orders. That would have disposed of the orders sought in paragraphs 1 and 2 of the Claim in cc 238/2019.
  10. Secondly, the orders sought in paragraph 3 of the Claim in cc 238/2019, could not be effected save by the Political Parties Commission and or the Registrar of Political Parties, but who were not joined as parties to the claim and accordingly that part of the order was also fundamentally flawed.
  11. Thirdly, the orders sought in paragraph 4 of that Claim (cc 238/2019), as correctly submitted by Counsel Matthews QC, were matters internal to the OUR Party and other parties to the Coalition Agreement, in the result the Claimant lacked locus to challenge the internal dealings of the parties to that coalition agreement. As an outsider, he could not delve into such internal arrangement. In any event, those matters on the valid and effective registration of the OUR Party have been the subject of this application in cc 244 of 2019 and canvassed in detail in this judgement.
  12. As is, the application in cc 238/2019 was as described by Mr Matthews
  13. QC, futile from the beginning and bound to fail. The overall effect, being it lacked substance and showed no cause of action known to law in the pleadings and or otherwise was frivolous, vexatious and an abuse of the Court’s process.
  14. Finally, his determination to proceed with the meeting, done in the exercise of his own deliberate judgement, (paragraph 11 of Schedule 2) not only regularises and validates the registration of the OUR Party, any coalition agreement entered into, the nomination of the Second Defendant, and his election as Prime Minister, but elevates it beyond the reach of this court (paragraph 10 of Schedule 2, more commonly referred to as an ouster and privative clause). In other words, it is simply unassailable and cannot be enquired into.
  15. The Governor-General therefore is not obliged to enquire into anything other than what is set out in Schedule 2 to the Constitution. He is non-political, has no direct part to play, no influence or decision to make as to the outcome, as to who is to be the Prime Minister, a matter solely left in the hands of the members of Parliament to determine. His role being purely administrative, is to preside over and conduct the election according to the rules.
  16. Counsel Suri also sought to submit that there was no lawful dispute before the Governor-General to activate the ouster clause for the dispute if any did not cover the question of nomination of the Prime Minister, which in this case was being challenged before the Court.
  17. Paragraph 10 to the Schedule reads:
  18. He submits that the determination being sealed off by paragraph 10 from being questioned in any proceedings whatsoever is limited only to the three following kinds of determination:
He submits that the ouster-clause in paragraph 10 does not cover nomination. He surmises this is because the nomination process or activity occurs prior to and outside of the meeting and the Governor-General does not participate in it. The role of Governor-General in nomination is limited to receiving the nomination papers and producing list and sending the list to members.
  1. There are two arguments or reasons against this submission. First it is too simplistic to argue that the dispute raised could not be included within the ambit of the powers of the Governor-General to determine. It must surely fall under any dispute arising out of or in connection with the calling ... of any election meeting.
  2. The phrase “any dispute arising out of” is very broad and all encompassing. Any disputes to do with nominations must surely be a dispute arising out of the calling and conduct of any election and the election of a Prime Minister.
  3. Secondly, the calling and conduct of any election, and election of a Prime Minister cannot be separated from the requirements or process of nomination set out in paragraph 3(1) and (2) of the Schedule. It is incorrect to say as Counsel Suri seeks to submit that the Governor-General’s role is confined to merely receiving, producing and sending out the list of nomination papers. It is more than that for he can only accept valid nominations and reject invalid nomination papers. The moment he does that, it falls within his discretion of dispute resolution under paragraph 10 in relation to the calling, conduct and election of a Prime Minister and to ensure that the process is fair, just and lawful.
  4. Finally, there is also a fundamental flaw in the way the Claimant had pitched his claim. It is premised from the outset on presumptions or suppositions. It presupposes the following:
  5. It follows from these that the Governor-General was thereby obliged to defer the meeting until those issues raised under the PPI Act in this court had been finally determined and resolved. In failing to enquire into those matters raised in section 53(1) of the PPI Act and the requirements of Schedule 2, Part 1, paragraphs 2 and 3 of the PPI Act, he erred in law and therefore his actions were ultra vires.
  6. The first mistake in the argument is in assuming that the decision-maker was the Governor-General and in failing to take into account those matters, he erred in law. As correctly pointed out by the Solicitor General and Mr. Afeau, the correct decision-maker in respect of those matters are the PPC and the Registrar of PP, not the Governor-General and so attracted the criticism from the Solicitor General that those questions were now hypothetical and further attracted the comment that it was now too late to raise them.
  7. I couldn’t agree more. The Governor-General was not obliged to enquire into any dispute to do with registration of a party (the OUR Party), validity of that registration (whether it was registered before or after the NGE), the validity of any coalition agreement entered into by a party (the OUR Party), the appointment of a party leader and whether a party had the highest number of seats in Parliament, and the validity of the nomination of the party leader of a party, which retained the highest number of seats in Parliament, absent any requirement in Schedule 2. It is plain those matters fall within the ambit and responsibilities of the PPC and the Registrar of PP, being the persons designated by the PPI Act to administer it, not the Governor-General.
  8. The second mistake is in assuming that his (the Governor-General’s) failure to enquire into those matters amounted to an error of lawful and legitimate administration that pierced the ouster clause walls.
  9. Thirdly, I find that the Governor-General did not and could not have committed any such errors by not taking those matters into account or considering them and thereby opening the gates to judicial review of his decision or determination.
  10. Fourthly, the facts presented to him and before him were that the OUR Party had a valid registration certificate and therefore was entitled to have independent members join its ranks, participate in negotiations and entering into coalition agreement with other political parties, and to have its leader nominated as a candidate for Prime Minister. The Latin maxim: “Omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium” “All things are presumed to have been rightly and duly performed until it is proved to the contrary”, must apply to the facts before him. When presented with those facts, there was little else he could do other than proceed with the election meeting of members of parliament to elect a Prime Minister from the pool of nominated candidates.
  11. Finally, in so accepting nomination and deciding in his own deliberate judgement to proceed with the meeting, he invoked and enlivened the ouster clause to seal off the doors of judicial review. The answer to the question whether the Governor-General’s determination to proceed with the election of the Prime Minister was invalid or otherwise ultra vires, must be answered in the negative.
  12. The final two questions raised in issue (5) and (6) can shortly be answered in the affirmative. Issue (5) “Whether the election of Hon. Manasseh Sogavare as Prime Minister is a valid election or not”, for the reasons stated in this judgment, this must be answered in the affirmative.
  13. As to issue (6) “Whether the Governor-General has the power to proceed with the Meeting as he did on Wednesday 24th April 2019, contrary to the High Court order directing him to stop the meeting until the High Court had dealt with the matter raised in cc 238 of 2019 filed by the Claimant.”, this too had been determined in this judgment, and is answered also in the affirmative.

(7) The application for strike out on the grounds of no reasonable cause of action and is or vexatious, frivolous and an abuse of process.

  1. The test for strike out in “plain and obvious” cases are now established in our jurisdiction in the Court of Appeal cases, Bulososo Development Co v Valepelo Development Co [2017] SBCA 2; SICOA-CAC 24 of 2016 (5 May 2017), and Sa’oghatoga v Mugaba Atoll Resources Company SICOA CAC 2 of 2015.
  2. In the case of Bulososo Development Co v Valepelo Development Co (ibid), (comprising of Goldsbrough P, Ward JA ad Wilson JA), her Ladyship at paragraph 16, held as follows:
In Sa’oghatoga (ibid), the Court of Appeal said quoting Wenlock v. Moloney:
  1. The Applicants submit that this is a case, plain and obvious. The statement of case discloses no cause of action and is doomed to fail. Even if any amendments are considered to cure any defect, the end would not matter. On this note the Claimant without leave (although no objection is made) amended his statement of case. The amended Claim has not changed the fact that the Claimant’s statement of case still fails to disclose any reasonable cause of action.
  2. Mr. Suri on behalf of the Claimant submits that only where the pleading presents a case which cannot succeed should be struck out as failing to disclose a reasonable cause of action or defence. If the facts pleaded conceivably give the plaintiff a right to relief then the cause of action is said to be reasonable.[9]
  3. Mr. Suri submits that this is not the plainest of case for the court to strike out. There are real controversies raised over law, ambiguities in interpretation and touching on the Constitution.
  4. I do not need to repeat the findings of this court on the supposed controversies over law, interpretation and the constitution. These have been canvassed in detail in this judgement. Suffice to point out that the statement of case discloses no cause of action and is doomed to fail from the start. Even if any amendments are made it would not make any difference.
  5. The supposed controversies under the PPI Act cannot make any difference to the outcome of the case even if proved, for the events arising from those controversies have been superseded and overtaken by the determination of the Governor-General in his own deliberate judgement, to accept nomination of the Second Defendant as valid and to proceed with the election meeting. Even if there had been defects (which is denied), the ouster clause would have deprived the courts from enquiring into his decision.
  6. For the reasons given in this judgement I am equally satisfied the case should be struck out as being frivolous and vexatious and an abuse of the Courts power.
  7. It is plain and clear that any dispute pertaining to the calling, conduct and election of a Prime Minister are matters falling within the sole discretion of the Governor-General and should be properly referred to him to determine, see Ulufaálu v Attorney General [2004] SBCA 1, Court of Appeal - Lord Slynn of Hadley (President), McPherson J.A., Ward J.A.
  8. This is not a matter where the Claimant seeks a construction of the Constitution, where the Constitution has failed to specifically address a particular question see Prime Minister v AG[10]; rather it is an instance where the Claimant seek to add an additional obligation or requirement on the Governor General more than which the Constitution had expressly provided. Having taken carriage of the matter and determined the dispute in his own deliberate judgement, the ouster clause is enlivened and removes enquiry by this court.
  9. I am satisfied it also amounts to an abuse of the process of the court.
  10. The application to strike out is granted, the Defendants are to have their costs on indemnity basis with certification for Queen’s Counsel. I grant orders accordingly.

The Court.
Sir Albert R Palmer CBE

[1] Rule 1.3 of the Solomon Islands Courts (Civil Procedure) Rules 2017, provides: “The overriding objective of these rules is to enable the courts to deal with cases justly with minimum delay and expense.” See rule 1.4 which further expounds on the meaning of “justly”:
“ (a) ensuring that all parties address the real issues of the proceedings; and (b) saving expense; and”
[2] See the decision in Wale v. Attorney General [2014] SBHC 148
[3] [1969] 2 AC 147
[4] Anisminic Ltd v Foreign Compensation Commission (ibid) per Lord Pearce at p. 194.
[5] [1983] UKHL 1; [1983] 2 AC 237 per Lord Diplock at p. 278
[6] De Smith, Woolf and Jowell Judicial Review of Administrative Act (1995) 5th ed at para 5-043. This was quoted Sapolu CJ in the case of William Keil v. Land Board [2000] WSSC 41 (21 December 2000). See also the judgement of Sapolu CJ in the case of Amoa v. Land and Titles Court [2011] WSSC 89 (17 August 2011).
[7] (ibi) at para 5-090.
[8] See page 38 of the written submissions of Counsel Suri.
[9] Bernard C. Cairn, Australian Civil Procedure 2nd Edition, at page 185-186.
[10] [1998] SBCA 1

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