Kealoe v Paea [2024] SBHC 74; HCSI-CC 204 of 2024 (7 August 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kealoe v Paea
Citation:
Date of decision:	7 August 2024
Parties:	Martin Mokolo Kealoe v Hon. Polycarp Paea, Francis Irotalaua, Attorney General, Attorney General
Date of hearing:	2 August 2024
Court file number(s):	204 of 2024
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga PJ
On appeal from:
Order:	1. Grant application for amendment of the election petition by adding the words “Electoral” to the name of the Fourth Respondent at page 1, “MV Vatate” at paragraph 9, “MOIC” in paragraph 13.1 and the amendments at paragraph 13.4, as identified and colored in red. 2. Refuse application to amend the allegations raised in grounds 13.2 and 13.3 of the proposed amended election petition, together with any evidence in sworn statements purported to support the proposed amendments. 3. The Petitioner is to file and serve the amended petition by 9th August 2024. 4. Cost of this hearing is to be paid by the Petitioner to all the Respondents, to be taxed if not agreed.
Representation:	Ms. L. Ramo for the Petitioner Mr. c. Hapa for the First Respondent Ms. P. Rofeta for the Second and Third Respondent
Catchwords:
Words and phrases:
Legislation cited:	Electoral Act Petition Rule 2019 S 33 (1), Electoral Act 2018 S 108 (3), S 107
Cases cited:	Laore and others v Vave HCSI CC 200 of 2024, Temahua v Vagara [2020] SBHC 13

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 204 of 2024

BETWEEN:

MARTIN MOKOLO KEALOE
Petitioner

AND:

HON. POLYCARP PAEA
First Respondent

AND:

FRANCIS IROTALAUA
(As Returning Officer for Malaita Outer Islands Constituency)
Second Respondent

AND:

ATTORNEY GENERAL
(Representing all the other electoral officials for MOIC including presiding officers and counting officials)
Third Respondent

AND:

ATTORNEY GENERAL
(Representing the Chief Electoral Officer of Solomon Islands Electoral Commission)
Fourth Respondent

Date of Hearing: 2 August 2024
Date of Ruling: 7 August 2024

Ms. L. Ramo for the Petitioner
Mr. C. Hapa for the First Defendant
Ms. P. Rofeta for the Second and Third Defendant

RULING

AULANGA PJ:

1. The Petitioner applies to amend the election petition filed on 30^th May 2024. There are a total of 15 grounds in the original petition. The grounds alleging bribery and noncompliance to the electoral process are in essence the main grounds pleaded in the original petition. All pointed to the conducts on the part of the Respondents and or their agents.
2. At paragraph 2 of the application, the Petitioner specifically mentioned adding 2 news grounds of election bribery which were no available at the time of preparing and filing of the original petition. The proposed amended petition was annexed “MMK-2” in the Petitioner’s sworn statement filed on 4^th July 2024. As expected, the proposed amendments were objected by the Respondents.
3. Essentially, this application seeks the question of whether the Court has the jurisdiction to allow amendment of election petition by adding new grounds of allegations which had not been included in the original petition.
4. In my ruling in Laore and other v Vave^[1], I made an observation that the Electoral Act Petition Rules 2019 does not prohibit amendment of an election petition after it was filed at the High Court. In fact, under rule 33 (1) of the Electoral Act Petition Rules 2019, the Court can allow amendment of a petition at any time of the proceeding or even during the trial. The only exception is an amendment that seeks to add a new ground to the petition. In that case, I referred to an election petition case of Temahua v Vangara and Others^[2], where CJ Palmer when refusing an application to amend the petition to add new grounds made the following observations:
   • “This is fairly simple and straightforward matter. What is prohibited from being introduced under the guise of an application for amendment is any new ground of bribery......Any new ground of bribery allegations filed after the statutory period of 30 days had lapsed accordingly, will be time barred and cannot be allowed to be included in an application to amend.”^[3]
5. The Court in Temahua v Vangara and Others^[4] then went on to state that no new grounds of petition allegations should be allowed for amendment after the 30 days had lapsed in these clear terms:
   • “8. Section 108 (3) of the Electoral Act 2018 provides that an election petition must be filed within 30 days after the result of the election petition has been published under section 107. What this means is that all available grounds on which a Petition is founded should be pleaded within that time period. Any amendments will be confined only to existing grounds already pleaded and not new grounds.
   • 9. I am satisfied that legislation does not grant any discretion or power to the court, to extend time to file a petition, or an amendment to the petition to include new grounds. The plain and clear meaning of section 108(3) of the Act is that, no new grounds can be permitted to be added to the petition after the 30 days had expired.
   • 10. Rule 33 of the Rules therefore cannot be construed as opening the door for new grounds to be included under an amendment to a Petition. That would contravene the clear and plain meaning and intent of section 108 (3) of the Act.” (Underlined mine).
6. Having conscious of the law on amendment of an election petition in relation adding of new grounds of allegations, I now turn to answer the issue required for this application.
7. Paragraphs 13.2 and 13.3 of the proposed amended election petition annexed in “MMK-2” contained two new grounds of bribery with new particulars of facts to support the allegations. Unfortunately, these grounds were not pleaded in the original petition, a matter conceded by the Petitioner. Since these are new grounds of allegation sought to be added to the original petition and going by the law well stated in Temahua v Vangara and Others and followed in Laore and other v Vave, cases cited earlier, it is my view that this Court does not have any jurisdiction to amend the petition to include the new grounds as proposed. The proposed amendments should have been pleaded within the 30 days period, allowable for the filing of the election petition which had already gone past.
8. The only amendments this Court has the power to make are in relation to amendments to the existing allegations purposely to correct any typographical errors to the dates and names of person which are commonly described as “cosmetic” changes as opposed to new or significant grounds of allegations.
9. I have observed the trend of lawyers making submissions referring to case authorities and ordinary civil procedure rules involving non-election petition matters, as applicable guidelines to election petition cases which the Court should follow. In my view, this is too much lawyering and unwelcomed stuff which somehow missed this basic point. That is, an election petition case is not an ordinary civil case. It is strictly managed by the Electoral Act 2018 and the Electoral Act Petition Rules 2019. Therefore, strict compliance with the electoral legislation and rules is of necessity for the parties when dealing with election petition cases. The Court has a duty to be wary of these submissions which could potentially result in diverting the Court from the real issue at hand.
10. I have noted that there were some minor amendments, besides grounds 13.2 and 13.3 being proposed for the amendment. Since they are minor amendments on the existing grounds, that will be inevitably allowed.
11. The application is partially granted in that the proposed amendments to include the words “Electoral” to the name of the Fourth Respondent at page 1, “MV Vatate” at paragraph 9, “MOIC” in paragraph 13.1 and the amendments at paragraph 13.4 identified in red colour, are permitted. The amendments sought in grounds sought 13.2 and 13.3 are refused, with cost of the application to be paid by the Petitioner to all the Respondents, to be taxed if not agreed.

Orders of the Court

1. Grant application for amendment of the election petition by adding the words “Electoral” to the name of the Fourth Respondent at page 1, “MV Vatate” at paragraph 9, “MOIC” in paragraph 13.1 and the amendments at paragraph 13.4, as identified and colored in red.
2. Refuse application to amend the allegations raised in grounds 13.2 and 13.3 of the proposed amended election petition, together with any evidence in sworn statements purported to support the proposed amendments.
3. The Petitioner is to file and serve the amended petition by 9^th August 2024.
4. Cost of this hearing is to be paid by the Petitioner to all the Respondents, to be taxed if not agreed.

THE COURT
Augustine Sylver Aulanga
PUISNE JUDGE

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^[1] HCSI CC No. 200 of 2024
^[2] HCSI CC No. 282 of 2019
^[3] At paragraph 6
^[4] I bid