Kukuti v Attorney General [2021] SBHC 162; HCSI-CC 64 of 2019 (27 December 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kukuti v Attorney General
Citation:
Date of decision:	27 December 2021
Parties:	Hon. Ezra Kukuti v Attorney General
Date of hearing:	22 July 2021
Court file number(s):	64 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. Dismiss the entirely course of action. 2. Cost of this hearing is to be paid by the Applicant to the Defendant.
Representation:	Mr J.S Pitabelama for the Applicant Mr Banuve for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Electoral Act S30, Solomon Islands Courts (Civil Procedure) Rules 2007 Chapter 15.3, 15.3.4 (c), 15.3.6 (a) (b), 15.3.10, 15.3.12, 15.3.16
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 64 of 2019

BETWEEN

HON. EZRA KUKUTI
Applicant

AND:

ATTORNEY GENERAL
Respondent

Date of Hearing: 22 July 2021
Date of Ruling: 27 December 2021

Mr J.S Pitabelama for the Applicant
Mr. Banuve for the Respondent

Ruling

Faukona, DCJ: This is a claim in Category C filed by the Applicant on 11^th February 2019. The Claim seeks a number of declaratory orders and interpretation of certain provisions of the National Constitution and Provincial Government Act. That being the original relief sought.

2. As a background reflection the Applicant was desirous to contest in the National General Elections in 2019. At that material time he was a member of the Choiseul Provincial Assembly.
3. With the motivation and intention the Applicant could have sought advice on the outset. Hence, towards the end of January 2019, the Applicant was advised by the Returning Officer for Choiseul Province to resign from being a Provincial Member before he can contest the 2019 National General Elections.
4. The Applicant then approached JSP Legal Services who wrote to the Attorney General on 31^st January 2019, seeking opinion. On 7^th February 2019 the Counsel for the Applicant had a conference with the Attorney General, who advised that the Applicant must first resign. The Applicant then filed this case for declaration and interpretation of laws governing the process of elections.
5. At first instance, it would appear as a complaint derived from S.30 of the Electoral Act, where the Applicant has dis-satisfied with the advice from the Returning Officer. If that was so, then Applicant must comply with the process provided for under S.30. He did not do so, or omitted, because of the Attorney General’s affirmation that the Applicant must first resign.
6. Having received the final advice the Applicant opted to file this claim. The claim was apparently in Category C under Rule 2.14 (c) which refer to as “any other claim from Category A or B”.
7. A claim for declaration which is the major integral part of this claim, should be in the tone of judicial review of executive or legislative action, and is governed by Chapter 15.3 of the Court Rules 2007 in particular Rule 15.3.4.
8. On the first hearing on 2^nd day May 2019, perhaps the claim was not served as yet. On 23^rd May 2019, Counsel for the Applicant informed the court that they had served the claim and they had just served one sworn statement that morning. The Counsel for the Defendant therefore sought adjournment because it was a new case and they have to obtain instructions. No direction orders were requested and made.
9. On 13^th June 2019 the Counsel for the Applicant informed the court to list the case for hearing. The Counsel for the Defendant agreed. The case was set for hearing on 12^th August, 2019, 9.30 am for 2 hours submissions.
10. On the date of submissions the Solicitor General appeared personally and informed the court that he had noted the issues and he would discuss with the Applicant’s Solicitor with the view to resolve the matter outside of court. The Counsel for the Applicant agreed.
11. For the next 5 adjournments which took 9 months, the issue was not resolved and the Defendant had not filed any defence at all.
12. On 27^th August 2020 having realised that date to hear any complaint or issues related to National General Elections been expired within one (1) year from the date the result of such election was pronounced. The Counsel for the Applicant then informed the court that he would file amended claim, and application. The Counsel for the Defendant consented. Direction orders were then made, and the amended claim was filed on 27^th August 2020.
13. There was no evidence that the amended claim and application was served. Another direction orders were made on 11^th March 2021 for the Defendant to file defence by 25^th March 2021. Nothing was filed so a date for hearing was set to 23^rd July 2021 as requested.
14. In preparation and formulation of this ruling, I noted certain significant requirements in accordance with the Rules were not complied with or omitted for lack of knowledge or miss-understanding of the Rules. And in doing so may become fatal to the entire case.
15. The original claim filed was in the nature of seeking declaratory orders. Pursuant to rule 15.3.4 which states, “A claim for mandatory order, a prohibiting order, or a quashing order, or for a declaration in relation to an Act or Subsidiary Legislation shall be made by a claim to the High Court for judicial review. In that instance, it is imperative that such claim or cause of action is governed by the Rules Chapter 15.3 Judicial Review.
16. A claim for judicial review must set out the grounds Rule 15.3.6 (a) with a sworn statement verifying the facts in which the claim was premise under Rule 15.3.6 (b).
17. Pursuant to Rule 15.3.10 claim and sworn statement must be served on the Defendant within 28 days, means both must be served together.
18. By requirement of R15.3.12 the defendant must file a defence within 14 days and must file a sworn statement supporting the grounds at the same time, that is.
19. This has never been done in this case. The Claimant who is the Applicant here seems to ignore and treat his application as one which can be heard without a cause of action or claim being on foot. An application in whatever tone cannot be heard in isolation. There must be a claim or cause of a cation on foot, even an application for interpretation of certain provisions of the Act, rule 15.3.4 states must be file under the judicial review claim.
20. In this case there was no defence file at all. Time had gone and the Applicant had knowledge it was not done by the Defendant. What is dwindling instead was that the Applicant had totally ignored it, even to apply for leave to file default judgment against the Crown. Apparently it appears the Applicant could get away with mere and naked application for declaratory orders inclusive interpretations.
21. The same course was adopted after the filing of the amended claim. It was probably served but there was no amended defence filed and the Counsels seem to satisfy with it, not good enough to hear issues.
22. In my opinion, the entire management of this case file was hacked by the Counsels who had failed drastically to assist the court to manage the file properly and effectively. Instead Counsels were rushing for hearing, in particular Counsel for the Applicant.
23. A proper administration of judicial review case file is, after a claim was filed and served, and a defence was filed then as soon as practicable the court must call a conference under rule 15.3.16. That state was never elevated to in this case.
24. At that stage the Applicant may file an application for preliminary point of law to be heard, and that is for the interpretation of certain provisions of the Constitution and the Electoral Act. The outcome may conclude the case without proceeding to hearing of the substantiative issues.
25. In any events the whole entire case was screwed up with misconception, thus allowing the court to set a date for hearing of the submissions. That should not have been done, that is pre-mature.
26. The need to interpret the provisions related to whether a current Provincial Member should resign to contest in the National General Electoral? Mean time I would refuse to determine now because the jurisdiction of this court was not properly invoked by not complying with relevant rules before the court can entertain the application. The processes provided for under the Rules are not complied with. Hence I decline to consider and determine the substantive issue at this stage.

Orders.

1. Dismiss the entirely course of action.
2. Cost of this hearing is to be paid by the Applicant to the Defendant.

THE COURT
Hon. Justice Rex Faukona
Deputy Chief Justice