Lusibaea v Waneroa [2025] SBHC 65; HCSI-CC 202 of 2024 (18 March 2025)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Lusibaea v Waneroa
Citation:
Date of decision:	18 March 2025
Parties:	Jimmy Lusibaea v Daniel Waneroa, Attorney General
Date of hearing:	23 September 2024
Court file number(s):	202 of 2024
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Pitakaka; PJ
On appeal from:
Order:	1. The election petition is struck out for lack of jurisdiction due to non-compliance with mandatory service requirements under Rule 16 and Rule 19(1) of the Electoral Act Petition Rules 2019. 2. Since the petition is struck out on jurisdictional grounds due to non-compliance with mandatory service requirements under Rule 16 and Rule 19(1) of the Electoral Act Petition Rules 2019, it is unnecessary to consider the alternative grounds of frivolous, vexatious, and/or vague or ambiguous. 3. Costs are awarded to the Respondents to be taxed if not agreed 4. Direct that a certificate be issued to the Governor-General, Speaker of the National Parliament, and the Electoral Commission, confirming the validity of the election of Hon. Mr. Daniel Suilea Waneoroa as the duly elected candidate for the North Malaita Constituency.
Representation:	Mr John Taupongi for the Petitioner Mr Olofia for the First Respondent Mr Allen Lonsdale Harara for the Second Respondent
Catchwords:
Words and phrases:
Legislation cited:	Electoral Act 2018, S 111 (1A) Electoral Act Petition Rules 2019, r 19 (1), r 16 and 19(1), r 4,
Cases cited:	Fiulaua v Fuo'o [2025] SBHC 2, Anisminic Ltd v. Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147, Macfoy v United Africa Co Ltd [1961] 3 All ER 1169

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 2020 of 2024

BETWEEN

JIMMY LUSIBAEA
Petitioner

AND:

DANIEL SUILEA WANEROA
First Respondent

Date of Hearing: 23 September 2024
Date of Ruling: 18 March 2024

Mr John Taupongi for the Petitioner
Mr Olofia for the First Respondent
Mr Allen Lonsdale Harara for the Second Respondent

Pitakaka; PJ

RULING ON APPLICATION TO STRIKE OUT ELECTION PETITION

Introduction

1.1 This matter concerns an election petition filed by the Petitioner, one of the losing candidates in the North Malaita Constituency, challenging the election result of the First Respondent, Daniel Suilea Waneoroa, who was returned as the winner of the general election conducted on 17 April 2024 under the Electoral Act 2018. The Petitioner seeks to have the election result declared void.
1.2 The First Respondent, upon being served with the petition, filed an application on 28 June 2024 to strike out the petition, alleging that it is frivolous, vexatious, and/or vague or ambiguous.
1.3 The Second Respondent, the Attorney General, in submissions on the application to strike out the petition of the First Respondent supported the First Respondent’s application and further raised the issue that the Petitioner did not comply with Rule 16 and Rule 19(1) of the Electoral Act Petition Rules 2019, specifically because the Second Respondent was not personally served with the petition within the time limit permitted by law. The Second Respondent submits that this failure to serve the petition is a fundamental defect that is fatal to the petition and therefore, the petition should be struck out.
1.4 The Petitioner objects to the Second Respondent raising the non-service issue through submissions, asserting that it should have been raised in a formal application and not during the submission phase.

2. Factual Background

2.1 The general election for North Malaita Constituency was held on 17 April 2024 under the Electoral Act 2018.
2.2 The First Respondent, Daniel Suilea Waneoroa, was returned as the winner of the North Malaita Constituency.
2.3 The Petitioner, one of the losing candidates in the North Malaita Constituency, on 30 May 2024 filed an election petition seeking the following orders:

• 1.a scrutiny or recount be allowed of the votes given and tendered at the said election; or
• 2. (a) the said Daniel Suilea Waneoroa was not duly elected or returned; and
• (b) that his election was void, and the Petitioner was duly elected and is to be returned for the constituency of North Malaita; and
• 3. Cost, to be taxed if not agreed.

2.4 The First Respondent filed an application on 28th June 2024 seeking to strike out the petition on grounds of being frivolous, vexatious, or vague.
2.5 The Second Respondent, the Attorney General, supported the First Respondent’s application and raised in submissions an additional ground, arguing that the petition should be struck out because the Petitioner failed to personally serve the petition and other relevant documents on the Second Respondent as required by Rule 16 and Rule 19(1) of the Electoral Act Petition Rules 2019.
2.6 The Petitioner submitted that this issue should have been properly raised in a formal application rather than in submissions, and argued that it constitutes an abuse of procedure.

3. Legal Issues for Determination

3.1 The issues raised by those facts before the court for determination are:

• 3.1.1 Whether the Second Respondent can raise the issue of non-service through submissions in support of the First Respondent’s application, given that it was not raised in the original application.
• 3.1.2 Whether the failure to serve the Second Respondent within the statutory period goes to the jurisdiction of the Court, and if so, whether it must be dealt with first.
• 3.1.3 Whether the failure to serve the Second Respondent is a fatal jurisdictional defect that cannot be cured by amendment.

4. Legal Analysis
4.1. The Issue of Service Goes to Jurisdiction and Must Be Dealt With First

4.1.1 It is well-established in law that when a service issue is raised in proceedings, the court is obliged to consider this issue. This is because service of petition is not a trivial matter but a fundamental matter that cannot be cured by amendment (see Jackson Fiulaua v Ricky Fuo’o,^[1]) and must be dealt with first. Service of petition affects the jurisdiction of the court. Therefore, proper service is fundamental to the commencement of an election petition. Jurisdiction is the foundation of the Court’s authority to hear and determine a case. If a Court lacks jurisdiction, any subsequent decision made is a nullity, regardless of the merits of the case.
4.1.2 In this case, the Second Respondent has raised the issue that the Petitioner failed to personally serve the Second Respondent within the statutory time limit, which is a mandatory requirement under Rule 16 and Rule 19(1) of the Electoral Act Petition Rules 2019. The evidence in the sworn statement of Edlyn Alabae filed on 9/9/24 confirmed this fact.
4.1.3 Apart from the fact that the Petitioner objects to the Second Respondent raising the non-service issue through submissions, asserting that it should have been raised in a formal application and not during the submission phase, the court finds that there was no evidence of personal service on the second Defendant within the time limit permitted under Rule 16 and Rule 19(1) of the Electoral Act Petition Rules 2019.
4.1.4 Rules 16 and 19 (1) of the Electoral Act Petition Rules 2019 Rule 16 limits the time for service of a petition to 14 days, inclusive of the day of filing. The mode of service of a petition is further provided for under rule 19 (1) of the rules. Its effect is the petition shall be served personally by the petitioner on each and every respondent.
4.1.5 The Second Respondent submits that such strict time lines and mode of service is to bring into effect the mandatory timing that an election petition must be heard and decided by the court under section 111 (1A) of the Electoral Act 2018.
4.1.6 The Petitioner’s petition was filed on 30 May 2024. The 14 days period stipulated under r. 16 of the Electoral Act Petition Rules 2019 starts on that date. That period will ordinarily lapse on 12 June 2024. The petition was not personally served by the Petitioners on the First Respondent from 30 May 2024 to 12 June 2024.
4.1.7 The failure to serve within the prescribed period is not a procedural lapse but a jurisdictional defect that deprives the Court of the authority to hear the petition.
4.1.8 As established in Anisminic Ltd v. Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147, jurisdictional issues must be addressed first, and if it is determined that the Court does not have jurisdiction, the proceedings must cease immediately. In that case, the House of Lords held:

“The question of jurisdiction is fundamental, and if a body has acted beyond its powers, its decision is a nullity and can be challenged at any stage. It is not necessary for the error to have been pleaded in the application if it concerns jurisdiction.”

4.1.9 In Macfoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC), the Court emphasized:

“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado.”

4.1.10 These principles establish that non-compliance with jurisdictional requirements, such as personal service within the prescribed time, must be dealt with first. This Court cannot proceed to hear the petition unless it is satisfied that it has jurisdiction.

4.2. The Failure to Serve is a Fatal Jurisdictional Defect

4.2.1 The failure to serve the Second Respondent within the statutory time limit is a fatal jurisdictional defect that renders the petition void. Rule 16 and Rule 19(1) of the Electoral Act Petition Rules 2019 set out clear timelines for the service of the petition and other relevant documents.
4.2.2 Rule 4 of the Electoral Act Petition Rules 2019 further emphasizes that time is of the essence in the prosecution of election petitions. The failure to comply with these time limits is not a mere technical defect; it strikes at the core of the Court’s jurisdiction. The law requires strict compliance with these provisions, and any failure to do so cannot be excused or cured by amendment.
4.2.3 In Macfoy v United Africa Co Ltd, the Court made it clear that:

• “A decision made without jurisdiction is not only bad, but incurably bad.”

4.2.4 The Court is therefore required to recognize that the non-service of the Second Respondent is a fatal defect. The Court lacks jurisdiction to proceed with the petition, and the failure to comply with the service rules means that the petition must be struck out.

5. Conclusion and Decision

5.1 Based on the above legal analysis, the Court finds as follows:
5.2.1 The Second Respondent is entitled to raise the issue of non-service in submissions, as jurisdictional issues can be raised at any point in the proceedings.
5.1.2 The failure to personally serve the Second Respondent within the statutory time period is a fatal jurisdictional defect that must be dealt with first, and this Court lacks jurisdiction to proceed with the petition.
5.1.3 The non-compliance with mandatory service rules within the statutory time limit Rule 16 and Rule 19 (1) of the Electoral Act Petition Rules 2019 is a fatal jurisdictional defect that renders the petition void.
5.1.4 This defect cannot be cured by amendment, as it is a fundamental jurisdictional defect that deprives the Court of authority to hear the petition.
5.1.5 Accordingly, the petition is struck out for failing to comply with the mandatory statutory time limit of Rule 16 and Rule 19 (1) of the Electoral Act Petition Rules 2019.

Final Order:

1. The election petition is struck out for lack of jurisdiction due to non-compliance with mandatory service requirements under Rule 16 and Rule 19(1) of the Electoral Act Petition Rules 2019.
2. Since the petition is struck out on jurisdictional grounds due to non-compliance with mandatory service requirements under Rule 16 and Rule 19(1) of the Electoral Act Petition Rules 2019, it is unnecessary to consider the alternative grounds of frivolous, vexatious, and/or vague or ambiguous.
3. Costs are awarded to the Respondents to be taxed if not agreed
4. Direct that a certificate be issued to the Governor-General, Speaker of the National Parliament, and the Electoral Commission, confirming the validity of the election of Hon. Mr. Daniel Suilea Waneoroa as the duly elected candidate for the North Malaita Constituency.

DATED this 18th of March, 2025.
By the Court
Hon. Justice Michael Collin Pitakaka
Puisne Judge of the High Court

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^[1] [2025] SBHC 2; HCSI-CC 206 of 2024 (29 January 2025), CJ