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Haomae v Houenipwela [2024] SBHC 155; HCSI-CC 211 of 2024 (22 November 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 211 of 2024

BETWEEN:

WILLAIM HAOMAE
First Petitioner

AND:

BARNABAS UPWE
Second Petitioner

AND:

HON. RICK NELSON HOUENIPWELA
First Respondent

AND:

ATTORNEY GENERAL
(representing Returning Officer for Small Malaita Constituency)
Second Respondent

Date of Hearing: 11 November 2024
Date of Decision: 22 November 2024

Mr Samuel Balea for the First Petitioner/First Respondent
Mr Primo Afeau for the First Respondent/Applicant
Mr Allen Harara for the Second Respondent (No appearance)

RULING ON APPLICATION FOR STRIKE OUT AND APPLICATION TO ENLARGE TIME

Bird PJ:

1. The country went to the polls for the National General Elections on 17 April 2024. Mr William Haomae, Mr Barnabas Upwe (Petitioners) and Mr Rick Nelson Houenipwela (First Respondent) were three of the ten candidates who contested the Small Malaita Constituency.
2. On 20 April 2024, the Returning Officer for Small Malaita Constituency declared the polling results. Mr Houenipwela polled 2,229 votes. Mr Haomae polled 1,242 votes and Mr Upwe polled 566 votes. Upon declaring the polling results, the Returning Officer further declared Mr Houenipwela as the duly elected Member of Parliament for the Constituency. Being aggrieved by the declaration, Mr Haomae and Mr Upwe filed their petition on 30 May 2024.
3. It is the case of the First Respondent that the petition was never served on him under the provisions of ‘The Electoral Act Election Petition Rules 2018’ (EPR). With that position, an application to strike and dismiss the petition was filed on 11 July 2024. The basis of the application was non-compliance of rules 16 and 19 (1) of the EPR.
4. As a consequence of the First Respondent’s application, the Petitioners filed a counter application for enlargement of time under rule 51 of the EPR. An alternative relief sought was for this court to read rule 1.17 (d) of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR) together with rule 51 of the EPR so as to make the prior service effective.

Application to strike

5. The application filed first in time was the application to strike by the First Respondent. I will deal with that application first. The applicable rules relating to this application are rules 16 and 19 (1) of the EPR. 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.
6. It is the case for the First Respondent 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.
7. The Petitioners petition was filed on 30 May 2024. The 14 days period stipulated under r. 16 of the EPR 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.
8. The petition and all other relevant documents came to knowledge and possession of the First Respondent on 18 June 2024. That date was about six days after the time limited for service under r. 16. The documents were given to one Alice Tusipue Baiabe by an employee of Rano & Company at the Heritage Park Hotel. Ms Baiabe was asked to give the documents to the First Respondent. The documents were not personally delivered by the Petitioners to the First Respondent.
9. It is therefore the First Respondents argument that since the petition and the relevant documents were not personally served on him by the Petitioners within 14 days as required under r.16 of the EPR, their petition should be struck out and dismissed.
10. It is also the case for the First Respondent that since all of the relevant documents were not personally served by either of the Petitioners on him under r. 19 (1) of the rules, the petition should also be struck out and dismissed.
11. Having said that, the First Respondent says that time is of essence in election petition proceedings. Rule 4 of the rules highlights that. It also provides that in circumstances of doubt on interpretation of the rules, the interpretation which favours the expeditious resolution of the petition or reduces or minimise costs to the parties is to be preferred.
12. To put into effect the essence of time under r.4 as read with section 111 (1A) of the Act, strict time limitations are prescribed. There are limitation for the filing of petitions, for service of petitions and all relevant documents and for applications for substituted service if personal service was unsuccessful and or difficult.
13. The Petitioners concede that the petition and all relevant documents were not served within the time required under r. 16. They nonetheless say that non-compliance was not inordinate and intentional. The delay was excusable and they have good reasons.
14. I have perused and noted the contents of the various sworn statements filed on behalf of the Petitioners. The sworn statement of Mr Upwe says that he filed the petition on 30 May 2024. The notice of nature of security was issued by the Registrar on 31 May. He then delivered the documents at Rano & Company office for them to effect service on the First Respondent.
15. Mr Upwe also stated that the last day for service was 14 June 2024. On 11 June he checked with Mr Joseph on the issue of service. Mr Joseph responded in surprise thinking that Mr Upwe had already effected service. There was miscommunication and or misunderstanding about service. Each of them had assumed that the other had already effected service. The petition and the relevant documents were allegedly served on 18 June 2024.
16. The two sworn statements of Mr Joseph, further confirmed what was said by Mr Upwe. He stated that various attempts were made by him and the office to effect service on the First Respondent. He was also of the view that the petition and all relevant documents were supposed to have been served on the First Respondent by 14 June 2024.
17. The first attempt to serve the petition and documents was on 11 June. The First Respondent was in a meeting at the Parliament House. They were unable to have the documents served.
18. Other attempts were made on 12 and 13 June 2024. Those attempts were carried out at the Parliament House, the Opposition Office and at his residence. They were also unable to serve the First Respondent. Another attempt was made on 17 June at the Opposition Office. They were told the First Respondent was at Heritage Park Hotel. They left the documents with the secretary at that office.
19. They did another check at the Heritage Park Hotel on 18 June. They were informed the First Respondent was attending an induction meeting there. They were unable to effect personal service. They left the documents with Ms Baiabe to give to the First Respondent. The sworn statement of Mr Papage filed on 25 June 2024 confirmed that event.
20. The sworn statement of Mr Rano has attempted to explain the reasons of non-compliance with service under r.16. He was incharge of the file. During the relevant times, he was ill and was indisposed. He was unaware when the petition and the relevant documents were returned to his office. There was no arrangement of service done. He also thought that the Petitioners would have served the petition and the relevant documents
21. Having stated the above, the Petitioners are further of the view that the late service of the documents is not prejudicial to the First Respondent. He has not been disadvantaged by the late service and the preparation of his defence. The application to strike should be dismissed with cost.
22. Having discussed the circumstances of the First Respondent and the Petitioners, the undisputed facts are the following:
    1. The petition was filed on 30 May 2024;
    2. The notice of nature of security was issued on 31 May 2024;
    3. The period of service under r. 16 was 14 days inclusive of the day of filing;
    4. The petition and all relevant documents came to the First Respondent’s knowledge and possession on 18 June 2024.
23. In this proceeding, the First Respondent holds the view that the last day of service under r. 16 ends on 12 June 2024. The Petitioners hold two contrary views that the last day of service was 13 and 14 June 2024.
24. Having stated those dates, I can see that r. 16 is very clear and unambiguous. All parties should be able to work out the exact and correct date by properly perusing the relevant rule. I have noted that the catch words in r. 16 are ‘the time for serving ................... shall be 14 days inclusive of the day of filing’.
25. The petition was filed on 30 May 2024. I can therefore say with confidence that the 14 days starts on that day. That was the very day the Petitioners filed their petition. The day of service also starts on that day. 14 days from that day will ordinarily end on 12 June. It does not end on 13 or 14 June as asserted by the Petitioners. With that in mind, the petition and all the relevant documents only came to the knowledge and possession of the First Respondent six (6) days after 12 June.
26. The sworn statement of the First Respondent filed on 9 August 2024 relates to Mr Upwe’s personal knowledge about his private residence and his office. There should not be any excuse on proper service on him.
27. Mr Upwe and his agent are blaming each other for non-service in accordance with the prescribed period. It is further noted that there is absolutely no attempt made by Mr Upwe and or Mr Haomae to effect personal service on the First Respondent between 30 May to 12 June 2024.
28. Rule 19 (1) of the EPR requires and puts legal obligation on the Petitioners to personally serve the petition and all relevant documents on the First Respondent. The word ‘shall’ is used in that rule. It is therefore a mandatory provision that must be complied with by the Petitioners.
29. Having perused the EPR 2019, I can see no other provision therein that can convince me otherwise. That rule is conclusive and mandatory. It does not allow their agents, lawyers or anybody else for that matter to serve the petition and the relevant documents on the First Respondent.
30. In that regard, the attempts made by their agent, being Rano & Company on 11, 12, 13, 17 and 18 June 2024 are futile to their case. They do not and will not assist the Petitioners in any way possible. I have also noted that Mr Upwe is a legal practitioner. In paragraph 9 of his sworn statement he stated inter alia ‘ I understand I am required to serve both the petition and the notice of nature of security on the respondents within 14 days, inclusive of the day of filing’.
31. The above is a very bold statement made by Mr Upwe. He understands the requirement of the law but failed to comply with it. On the same token, he could have also understood that r. 19 (1) is a conclusive and mandatory requirement. Even so, he did not comply. There need not be any attempt made by Rano & Company to serve the First Respondent. They are not authorised by law to effect service of the petition and the relevant documents.
32. By 11 June 2024, Mr Upwe still has a day to effect personal service on the First Respondent. He never did but still expected his agent to carry out service for him and Mr Haomae. Mr Houenipwela in his sworn statement says Mr Upwe has personal knowledge of his private residence and office.
33. It is noted that Mr Upwe has not stated any reasons why personal service was not done. His sworn statement merely puts blame on his agent and their misunderstandings on service. I am of the view that the misunderstandings they might have had, is of no assistance to them because of the requirement of r. 19 (1) of the rules.
34. Even so, the Petitioners have through their counter application sought relief under r. 51 of the EPR. They seek extension of time to serve the petition and the relevant documents. They also seek further relief for me to render the alleged service of 18 June effective under r. 1.17 of the CPR.
35. R. 51 gives me discretion to enlarge time for good cause. So what is good cause? The phrase ‘good cause’ has been discussed by this court in previous cases. In order for the court to determine good cause, the Petitioners must state in evidence the reasons for delay in not effecting service. Not only that but the reasons given must be adequate, proper and valid.
36. I have discussed the reasons for the delay alluded to in the Petitioners various sworn statements. They basically contained administrative failures by the agent and miscommunication and misunderstanding between the Petitioners and their agent. The various sworn statements do not contain any reason or explanation by the Petitioners why they did not comply with the mandatory requirement of r. 19 (1) of the rules.
37. I have already stated in this ruling that the Petitioners agent has no authority in law to serve the First Respondent. That view held by the Petitioners and their agent is flawed in law. It is a misconceived view and a misapplication of the requirement of r. 19 (1) of the rules. In saying that, any attempts made by the agent or any alleged service carried out by them in place of the Petitioners is contrary to law and is ineffective.
38. In the case of Maneka v Bosawai – CC171/24, I discussed whether I could exercise my discretion under r. 51 to extend time. For me to invoke that discretion, the Petitioners must show good cause and the reasons given by them must be adequate, proper and valid.
39. From the scenario of this case and from my above discussions, the only evidence that I will be able to take into account is that of Mr Upwe. In his sworn statement, Mr Upwe did not give any reason whatsoever as to why he failed to effect personal service on the First Respondent under r. 19 (1) of the rules. Mr Haomae on the other hand did not file any sworn statement on the issue to assist me in my deliberation.
40. In view of the above, I am therefore unable to exercise my discretion under r. 51 to enlarge time for the Petitioners to effect service on the First Respondent. I refuse to grant the relief sought by the Petitioners.
41. In relation to the alternative relief sought and in view of my discussion in paragraphs 36 and 37 above, I am also unable to render the alleged service done on the First Respondent on 18 June 2024 effective under r.1.17 of the CPR. I also refuse to grant the alternative relief sought by the Petitioners. I must reiterate here that of paramount importance is the provision and application of r. 4 of the rules.
42. In refusing to grant the reliefs sought by the Petitioners, I am only left to determine the application to strike by the First Respondent. I have discussed at great length all of the circumstances of the Petitioners and the First Respondent. I have held that the petition having being filed on 30 May 2024 was supposed to have been personally served by either of Mr Haomae and Mr Upwe on the First Respondent by 12 June 2024.
43. The petition and all relevant documents only came to the knowledge and possession of the First Respondent on 18 June. The documents were given to Ms Baiabe by the agent. That was the sixth day after the period of service has lapsed. None of the Petitioners effect service. There was absolutely no attempt made by the Petitioners to personally serve the First Respondent as required by r. 19 (1).
44. Even by 11 June, Mr Upwe still informed his agent to serve the First Respondent with the relevant documents. He did not make any last attempt to carry out personal service, even though he has personal knowledge of the First Respondent’s private residence and office.
45. In light of all the matters discussed, I am inclined to grant the order sought by the First Respondent to strike out the petition and have it dismissed. I hereby order that the petition of the Petitioners filed on 30 May 2024 is hereby struck out and dismissed. It contravened r. 16 and r. 19 (1) of the EPR 2019 and is ineffective. I also order cost against the Petitioners.
46. The effect of the courts’ ruling therefore is that Mr William Haomae and Mr Upwe’s petition filed on 30 May 2024 id hereby struck out and dismissed. Mr Upwe had filed the relevant documents to withdraw his petition. Consequently, I hereby order cost against Mr Haomae. I further direct that a certificate confirming the validity of the election of Honourable Rick Nelson Houenipwela as the duly elected candidate for Small Malaita Constituency is to be issued to;
    • (i) The Governor General;
    • (ii) The Speaker of the National Parliament; and
    • (iii) The Electoral Commission.

THE COURT
Justice Maelyn Bird
Puisne Judge