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Maeue v Maenu [2025] SBHC 42; HCSI-CC 187 of 2024 (26 March 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 187 of 2024

BETWEEN

AUGUSTINE AUGA MAEUE
Petitioner

AND:

HARRY PHILIP
Second Petitioner

AND:

BEN MAENU
Respondent

Date of Hearing: 30 August 2024
Date of Ruling: 26 March 2024

Mr Evan Olofia for the First and Second Petitioner
Mr Peter Teddy for the Respondent

Pitakaka; PJ

RULING ON APPLICATION TO STRIKE OUT PETITION

Introduction

1. This ruling concerns an application filed by the First Respondent on 9 July 2024 to strike out the Election Petition filed by the Petitioners, Augustin Auga Maeue and Harry Philip, on 27 May 2024, in respect of the Lau Mbaelelea Constituency, Malaita Province.
2. The Petitioners allege three instances of fraudulent voting by agents of the First Respondent, four instances of election bribery, and claim that the Respondent's corrupt and illegal practices, in breach of the Electoral Act 2018.
3. The First Respondent seeks to strike out the petition on the grounds that:
   1. it is frivolous and vexatious, and that the allegations are insufficient to warrant a hearing, pursuant to section 111(b)(i) and (ii) of the Electoral Act 2018 and Rules 9.75(a),(b) and (c) of the Solomon Islands Courts (Civil Procedure Rules) 2007; and
   2. the election petition is vague and ambiguous in not specifically pleads what offences were committed in Section 120 and 126 of the Electoral Act rendering the pleadings to lack merit, lack evidence to support it and should be struck out.
4. The First Respondent relies on two sworn statements by Hon. Ben Maenu, both dated 9 July 2024, to support the application.
5. The Petitioners rely on sworn statements from Borofi Dafie, Lucia Sousou, Patrick Alick, Kevin Fakaomea, and Joe Muaga, all filed on 27 May 2024, to support the three allegations of fraudulent voting.
6. The Petitioners rely on sworn statements from Rex Samani, Lawinter Feni, John Limei, and Dorothy Misifea, all filed on 27 May 2024, to support four allegations of election bribery.

Issues for Determination

7. The primary issue before the Court is whether grounds of the Election Petition should be struck out on the grounds that it is frivolous, vexatious, and insufficient, and whether the allegations made by the Petitioners provide sufficient grounds to warrant a hearing. The specific issues for determination are:
   1. Whether the allegations of fraudulent voting by agents of the First Respondent should be struck out as frivolous, vexatious, vague, ambiguous and insufficient.
   2. Whether the allegations of election bribery should be struck out on the same grounds.
   3. Whether amendment is possible.

Paragraph 3 - Fraudulent Voting

8. It is important to note at the outset that the allegations of fraudulent voting are introduced in paragraph 3 of the petition before the pleading of particulars in the following terms, “The petitioner further aver that before the 2024 National General Election “NGE” the Respondent, Ben Maenu, was by his agents guilty of corrupt practices of fraudulent voting contrary to Section 120 of the Electoral Act 2018”.
9. The Applicant/Respondent submitted that paragraph 3 must be read together with the particulars of fraudulent voting in paragraphs 4.1, 4.2 and 4.3 of the petition.
10. The Respondents/Petitioners on the other hand submitted that paragraph 3 is only a nominal part of the actual pleading on the offence of fraudulent voting contained in paragraphs 4.1, 4.2 and 4.3 of the petition, so even if paragraph 3 is struck out it does not nullify the three allegations of fraudulent voting in paragraphs 4.1, 4.2 and 4.3 of the petition.
11. The court determines firstly that the pleading in paragraph 3 of the petition raises a jurisdiction issue of the court and therefore must be dealt with first. If the court finds that this issue is made out then it will be unnecessary to deal with the other grounds in the application. The court is of the view that a fair reading of the pleading in paragraph 3 of the petition is that it must be read together with the particulars of fraudulent voting alleged in paragraphs 4.1, 4.2 and 4.3 and will suffer the same consequences.
12. The court rejects the submissions of the respondent/petitioner on this point.
13. The pleading in paragraph 3 which prefaced the particulars of fraudulent voting in the particulars in paragraphs 4.1, 4.2 and 4.3 is flawed because it alleges that the Respondent, Ben Maenu, was by his agents are guilty of corrupt practices of fraudulent voting.
14. In Salopuka v Panakitasi^[1] and Maneka v Bosawai^[2], the courts criticized the improper pleading of criminal offenses in election petitions, emphasizing the distinction between civil and criminal jurisdictions.
15. In Salopuka, the petition filed by Oliver Noll Salopuka accused Dickson Mua Panakitasi of bribery under section 126 of the Electoral Act 2018. The petition sought to invalidate the election based on the respondent’s guilt, relying on criminal provisions. Chief Justice Palmer criticized this approach, stating that an election petition is not a criminal proceeding. Rather than focusing on proving a candidate’s guilt, the purpose of an election petition is to assess the validity of the election in a civil context, not to establish criminal liability. The Court clarified that the petition should address whether the election was valid, based on evidence of bribery or corrupt practices, which are distinct from criminal charges. Palmer CJ underscored that proof of guilt in a criminal case requires a higher standard than the balance of probabilities in a civil matter, which is the appropriate standard for election petitions.
16. In Maneka v Bosawai (supra), the petitioner, Mr. Maneka, alleged that Dr. Bosawai had breached sections 126 and 127 of the Electoral Act 2018, accusing him of election bribery and undue influence, both criminal offenses. Justice Bird also criticized this approach, emphasizing that criminal allegations should not be part of election petitions. Justice Bird reinforced the principle that election petitions are civil matters and must adhere to civil procedures. The introduction of criminal accusations like bribery or undue influence transforms the petition into a criminal case, which is improper.
17. The petitions in both Salopuka and Maneka (supra) were struck out on this issue. Both cases highlight critical lessons for election petitions:
    1. Civil Jurisdiction: Election petitions must focus on challenging the validity of the election, not on alleging and proving the guilt of a candidate.
    2. Proof Standards: The burden of proof in election petitions is different from criminal cases. While criminal cases require proof beyond a reasonable doubt, election petitions only require proof on the higher standard of balance of probabilities.
18. The core issue in Salopuka and Maneka is the improper pleading of criminal offenses in election petitions. The Courts consistently emphasized that election petitions must remain within the civil jurisdiction, focusing on the validity of the election rather than the guilt of the candidate. By invoking guilt of the respondent, petitioners risk converting a civil matter into a criminal prosecution, which is procedurally inappropriate and legally flawed. Courts have made it clear that such petitions should not accuse a candidate of committing a criminal offense but should challenge the integrity and legitimacy of the election process itself.
19. Therefore, having regard to the pleading in paragraph 3 read with the particulars of fraudulent voting in paragraphs 4.1, 4.2 and 4.3 of the petition viewed in the context of the law in Salopuka and Manekas (supra) the court finds that it establishes that the pleading alleges guilt on the respondent or his agent and as such it is no longer civil suit but criminal in nature. Consequently, this in effect renders the petition grounds of fraudulent voting in paragraph 3 read with the particulars of fraudulent voting in paragraphs 4.1, 4.2 and 4.3 of the petition have no reasonable cause of action in the civil sense and that the petition is frivolous and vexatious and must be struck out accordingly.
20. 20 The court determines that having establish that paragraph 3 is struck out all the particulars of fraudulent voting in paragraphs 4.1, 4.2 and 4.3 are also strike out for the same reasons.
21. In law, issues that goes to the jurisdiction of the court are fundamental because it concerns whether a petition was properly brought before the court therefore where pleading as in this case are of criminal nature the court will lack jurisdiction to hear the petition.
22. The failure to plead a civil jurisdiction of the petition within the prescribed period permitted by law to file a claim is not a procedural lapse but a jurisdictional defect that deprives the Court of the authority to hear the petition. (see Jackson Fiulaua v Ricky Fuo’o,^[3])
23. As established in Anisminic Ltd v. Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147, if it is determined that the Court does not have jurisdiction, the proceedings must cease immediately.
24. 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.
25. Here the petition was brought before the court on filing on 27 May 2024 which alleges guilt against the respondent and his agent which is criminal in nature and the court do not have jurisdiction to hear the petition in its criminal jurisdiction.
26. This in effect affects the court’s jurisdiction, as no valid petition was filed within the 30-day limit set by Section 108(3) of the Electoral Act 2018.
27. The court determines that the defects identified in paragraph 3 read with the particulars of fraudulent voting in paragraphs 4.1, 4.2 and 4.3 are fundamental in that no amendment can cure them. This is because Section 108(3) of the Electoral Act 2018 requires that all election petitions be filed within 30 days of the publication of election results. Per Temahua v. Vaqara^[4], any amendment introducing a new cause of action or rectifying substantial defects after this time is impermissible.
28. To amend the petition as suggested by the counsel of the Petitioner in his submission will require changing a cause of action from a criminal one to civil will have the effect of introducing a new cause of action after the time permitted by law. That is, this issue cannot be cured without introducing new facts or causes of action, making an amendment impermissible.
29. Since the court finds that the petition grounds on fraudulent voting in paragraph 3 read with the particulars in 4.1, 4.2 and 4.3 are struck out on the jurisdiction ground it is unnecessary to deal with the other grounds in the application to strike out the petition.

Paragraph 5 - Election Bribery

30. Paragraph 5 of the Petition also pleads that “the Petitioners further state that before the 2024 NGE, the said Respondent, Ben Maenu was by his agent guilty of corrupt practices of Election Bribery contrary the provisions of the section 126 of the Electoral Act 2018”.
31. The court is of the view that the on a fair reading the effect of the pleading in paragraph 5 of the petition is that it must be read together with the particulars of election bribery alleged in paragraphs 5.1, 5.2,5.3 and 5.4 will suffer the same consequences.
32. The court determines that paragraph 5 of the petition also raises a jurisdiction issue and for the same reasons set out in relation the paragraph 3 of the allegation of fraudulent voting suffers the same consequences.
33. The pleading in paragraph 5 which prefaced the particulars of election bribery voting in the particulars in paragraphs 5.1, 5.2, 5.3 and 5.4 is flawed because it alleges that the Respondent, Ben Maenu, was by his agents are guilty of corrupt practices of election bribery contrary to Section 126 of the Electoral Act 2018.
34. Therefore, having regard to the pleading of election bribery in paragraph 5 read with paragraphs 5.1, 5.2, 5.3 and 5.4 of the petition viewed in the context of the law in Salopuka and Maneka (supra) the court finds that it is established that the pleading alleges guilt on the respondent or his agent and as such it is no longer civil suit but criminal in nature. Consequently, this in effect renders the petition grounds of election bribery in paragraph 5, 5.1, 5.2, 5.3 and 5.4 to have no reasonable cause of action in the civil sense and that the petition is frivolous and vexatious and must be struck out accordingly.
35. That is paragraph 5 and the particulars of bribery in 5.1, 5.2, 5.3 and 5.4 are struck out accordingly.
36. The court determines that the defects identified in paragraph 5 read with the particulars of election bribery in paragraphs 5.1, 5.2 , 5.3 and 5.4 are fundamental in that no amendment can cure them. This is because Section 108(3) of the Electoral Act 2018 requires that all election petitions be filed within 30 days of the publication of election results. Per Temahua v. Vaqara^[5], any amendment introducing a new cause of action or rectifying substantial defects after this time is impermissible.
37. To amend the petition as suggested by the counsel of the Petitioner in his submission will require changing a cause of action from a criminal one to civil will have the effect of introducing a new cause of action after the time permitted by law. That is, this issue cannot be cured without introducing new facts or causes of action, making an amendment impermissible.
38. 38. Since the petition grounds of election bribery in paragraph 5 read with the particulars in paragraphs 5.1, 5.2, 5.3 and 5.4 are struck out on jurisdictional grounds due to pleading of criminal guilt it is unnecessary to consider the alternative grounds of frivolous, vexatious, and/or vague or ambiguous in the application to strike out petition.

Final Order:

1. The Election Petition filed on 27 May 2024 is struck out.
2. Costs are awarded to the Respondents to be taxed if not agreed
3. I 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. Ben Maenu as the duly elected candidate for Lau Mbaelelea Constituency, Malaita Province.

DATED this 26th, 2025.
By the Court
Hon. Justice Michael Collin Pitakaka
Puisne Judge of the High Court

[1] [2020] SBHC 72; HCSI-CC 280 of 2019 (1 May 2020), Palmer CJ

^[2] [2024] SBHC 73

^[3] [2025] SBHC 2; HCSI-CC 206 of 2024 (29 January 2025), CJ

[4] [2020] SBHC 13; HCSI-CC 282 of 2019 (20 March 2020) Palmer CJ
[5] [2020] SBHC 13; HCSI-CC 282 of 2019 (20 March 2020) Palmer CJ