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Koli v Tovosia [2025] SBHC 79; HCSI-CC 191 of 2024 (22 May 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 191 of 2024

BETWEEN

JESSY KOLI
Petitioner

AND:

BRADLEY BILLY TOVOSIA
First Respondent

AND:

NOEL MATEA
(Returning Officer for East Guadalcanal Constituency)
Second Respondent

AND:

BENEDITO MANEISU
(Presiding Officer)
Third Respondent

Date of Hearing: On papers
Date of Ruling: 22 May 2025

Mr. G Suri for the Petitioner
Mr W Rano for the First Respondent
Mr B Pitry for the Second and Third Defendant

RULING

AULANGA; PJ:

1. This is an issue-based ruling premised on the relevant issues that are the heart of this application.
2. This is the second application by the First Respondent (Applicant) to strike out the election petition filed on 28^th May 2024 or all the subsequent amended election petitions filed by the Petitioner for this proceeding. The Second and Third Respondents, both in the materials filed for the application and written submissions, have supported the application.
3. The Applicant relies on the failure of the Petitioner to comply with the Rule 6 (1) (d) and (e) of the Electoral Act Petition Rules 2019 as the basis to strike out the current petitions filed for this proceeding.
4. Rule 6 (1) (d) and (e) of the Electoral Act Petition Rules 2019 is for mandatory compliance as it goes to the competency or the validity of the petition to be heard by the Court. It is a question that goes to the jurisdiction of the Court to hear the matter, meaning, whether the Court has the legal authority to hear and decide on the petition before it.
5. Aligned with the views held by the Courts in Fiulaua v Fuo’o [2025] SBHC 2; Talifiu v Tagini [2025] SBHC 8, Dettke v Sade [2025] SBHC 9, and more recently by the Court of Appeal in Tovosia v Koli [2025] SBCA 5, all the petition documents or whichever is current before the Court should be dismissed for lack of compliance with that mandatory requirement. The Second and Third Respondents have supported the application as evidenced in their written submissions.
6. The Petitioner objects to the application on a number of grounds that were summarised at page 2 of the Petitioner’s written submission. First, the decisions of this Court in previous cases that dealt with this issue under Rule 6 (1) (d) and (e) of the Electoral Act Petition Rules 2019 were distinguishable on facts, as this issue was not fully addressed, and thus, not binding on this Court. Second, the application is an abuse of the Court process since the Applicant has failed to obtain leave of the Court before the filing of this application, together with the omission to include “complaint” in the previous strike out application and in the notice of appeal that was already resolved by the Court of Appeal. Third, the failure of the Applicant to make an early objection to the proceeding which implies a concession on the part of the Applicant to progress with the matter in Court despite the obvious mandatory requirement in Rule 6 (1)(d) and (e) of the Electoral Act Petition Rules 2019.
7. It is important to note, and for the purpose of which will form the basis of this ruling, that this matter was brought to the Court of Appeal in Tovosia v Koli (supra). Despite the appeal not being the challenge on Rule 6 (1)(d) and (e) of the Electoral Act Petition Rules 2019, the Court of Appeal, in my view, has authoritatively given a binding interpretation of a noncompliance to Rule 6 (1)(e) of the Electoral Act Petition Rules 2019, being the second limb of this application. This Court therefore is obliged to follow and give due consideration on the clarification given by the Court of Appeal in relation to the effect of Rule 6 (1) (e) of the Electoral Act Petition Rules 2019.
8. In light of the facts, the materials filed by the parties and their respective written submissions, the relevant issues for me to consider are; whether the failure of the Petitioner to comply with Rule 6 (1)(d) and (e) renders the petition incompetent and liable to be struck out and if so, the consequence of the noncompliance.
9. It is uncontested that in the petition filed on 28^th May 2024 and the subsequent amended and further amended petitions, the Petitioner did not provide the details as required under Rule 6 (1)(d) and (e) of the Electoral Act Petition Rules 2019. The Petitioner only put “To: All the Respondents” in the Content and Form of the Petition. There is no shred of doubt that by putting only “To: All the Respondents” in the petitions, the Petitioner has failed to comply with Rule 6 (1) (d) and (e) of the Electoral Act Petition Rules 2019. In my view, this is a fundamental breach given the mandatory terms of Rule 6 (1) (d) and (e).
10. Rule 6 (1)(d) and (e) of the Electoral Act Petition Rules 2019 states:
    • 6. (1) An election petition shall—
    • (a) –
    • (b) –
    • (c)-
    • include a statement of: the address within the jurisdiction for service of the petitioner; and, the contact details of the petitioner, or of his advocate or agent;
    • (e) clearly identify the respondent or respondents to the petition together with their usual or last known address.” (Underlined mine).
11. There is a settled law in this jurisdiction in Movobule v Tozaka [2016] SBHC 44, a case decided by using the repealed Election Petition Rules 1976 that the word “shall” in the context of election petition matters imposes a peremptory and obligatory requirement that requires strict compliance. As election petition cases are not ordinarily normal civil cases, and were brought against the member of the parliament who was voted by the majority of the electorate, the need for such strict compliance is therefore necessary to ensure that only competent petitions are heard in Court.
12. By failing to include the particulars required in Rule 6 (1) (d) and (e) of the Electoral Act Petition Rules 2019, it therefore renders all the petitions filed in this proceeding inherently deficient as to the address of the jurisdiction for service of the petition(s), the contact details of the Petitioner or his advocate, the clear identification of all the Respondents to the proceeding and the usual or last addresses of the Respondents being named in the proceeding. This omission is fatal and goes to the validity of the petition itself which in turn linked to the question of whether this Court has the authority to hear and decide on an invalid petition, as decided in Ramoli v Electoral Commission [2024] SBHC 101, Dettke v Sade [2025] SBHC 9 and more fundamentally, by the Court of Appeal in Tovosia v Koli (supra).
13. More importantly for this matter is the binding explanation and interpretation by the Court of Appeal in Tovosia v Koli (supra) for this present proceeding regarding the noncompliance with Rule 6 (1)(e) of the Electoral Act Petition Rules 2019. In that case, the Court of Appeal, at paragraphs 117 to 118, states:
    • “117. There is one other issue to raise. This issue was raised in court during the hearing. It is an issue that goes to the competency of the petition. The issue relates to the mandatory requirements of Rule 6 of the EPA Rules, 2019 and relates to – Contents and form of election petitions. The pertinent part of the Rule is 6 (1) (e). The Rule is in these terms: -
    • 6. (1) An election petition shall-
    • (a) –
    • (b) –
    • (c) –
    • (d) –
    • (e) Clearly identify the respondent or respondents to the petition together with their usual or last known address.
    • 118. The significance of this Rule relates to service of an election petition and other related documents on the respondents to the petition. In the petition the First Respondent, simply stated – “To: All the Respondents”. This to me is a fundamental breach of Rule 6 (1) (e), which governs and regulates the election petitions and the breach of which must affect the competency of the petition, and it is a matter that goes to the jurisdiction of the Court. The Court has the duty to apply Rule (1) (e) as intended.”
14. In my view, and as earlier alluded to, despite the issue on the noncompliance of Rule 6 (1) (e) was not the subject the appeal, the above statements made by the Court were binding and authoritative statements that settled any contrary arguments on Rule 6 (1) (e) of the Electoral Act Petition Rules 2019.
15. Given the Court of Appeal has ruled that simply addressing the petition “To: All the Respondents” without specifying who they are and their addresses is a fundamental breach, this noncompliance in my view therefore undermines the entire process and the validity of this proceeding. The effect of it therefore is that since Rule 6 (1) (d) and (e) regulate procedural steps necessary for the Court’s jurisdiction; the Petitioner’s noncompliance to the Rule now affects the petition’s competency. This is a fundamental and jurisdictional breach that this Court must act strictly to safeguard its processes from being abused given the mandatory nature of the Rule. The Court has no jurisdiction to proceed to trial unless the requirements are met.
16. In light of the above, the next obvious issue or question is the effect or consequence of the noncompliance to Rule 6 (1) (d) and (e) of the Electoral Act Petition Rules 2019.
17. There is a corpus of decisions from this Court such as in Dettke v Sade [2025] SBHC 9 and Talifilu v Tagini [2025] SBHC 8. The Court in those cases have clearly decided that a noncompliance to Rule 6 (1) (e) is fatal to the proceeding, the same position re-echoed by the Court of Appeal in Tovosia v Koli (supra). As rightly expressed in Dettke v Sade (supra), that because of the clear mandatory requirement in the Rule, the Court does not have a discretion or to be astute in finding ways to defeat the mandatory requirement of the Rule.
18. This Court has been urged by counsel for the Petitioner to consider, amongst other grounds, to depart from the previous decisions of this Court on similar issues to the present case. One of the cases is Dettke v Sade (supra) when considering the circumstances of this case, that the Applicant has been served with the petition documents and had voluntarily submitted to the jurisdiction of the Court, hence this Court is entitled to hold that a failure to comply with Rule 6 (1) (d) and (e) of the Electoral Act Petition Rules 2019 does not automatically render this proceeding a nullity. Furthermore, in light of no leave was obtained by the Applicant at the time of filing of the application, this application therefore amounts to an abuse of the Court process.
19. In my view, the effect of noncompliance to the mandatory requirements in Rule 6 (1) (e) as found in Dettke v Sade (supra) and Talifilu v Tagini (supra) equally applies to this case. I hold the view that those cases reflect a reasonable and correct interpretations of the Court in relation to the effect of noncompliance to Rule 6 (1)(e), and for that reason, I find no convincing way why I should decide this case differently.
20. It is also in my view that the Applicant can still apply to strike out the election proceeding at any time of the proceeding including during a trial as experienced in Laore and Lepe v Junior HCSI CC No. 200 of 2024. The fact that the application was not promptly brought after the filing of the petition cannot be said to be an indication or expression of the Applicant’s voluntary submission to the jurisdiction of the Court. The timing of the application depends on the detection of the issue or ground that warrants the application to strike out, and the need to ensure that only valid petitions are preserved for trial. As rightly said by Lawry J in Dettke v Sade (supra), at paragraph 50, “As rule 6(1) (e) makes a requirement as to what must be included in the petition, and in the present case that includes clear identification of the First Respondent and identification of his usual or last known address, the Court must give effect to that requirement. The common law then has given guidance about whether there are circumstances when the Court should not give effect to the requirement. The First Respondent has taken full part in the proceedings and not raised the issue until the week before trial. To find that a petition has not complied with the rules but to permit the petition to still be heard is a step that cannot be taken lightly as to do so would undermine the clear direction of the rule.” Based on those reasons, the submission of the Petitioner must be rejected.
21. Finally, on the issue of the failure of the Applicant to obtain leave of the Court to file the present application. It is my view that in this jurisdiction, the requirement for leave of Court to file an application to strike out an election petition is not explicitly stated in the Electoral Act Petition Rules 2019. However, based on the prevailing legal practices and judicial precedents, it is generally accepted that, except for an application to amend the petition as held in Tovosia v Koli (supra), such applications can be made without prior leave of the Court. In any event, the granting of leave for filing an application to strike out rests solely on the discretion of the Court. For this case, the Petitioner had been given due notice of the filing of the application including the opportunity to respond. Based on those reasons, I do not find the application is an abuse of the Court process.
22. It follows that the application by the First Respondent (Applicant) is granted with consequential orders that the election petition filed on the 28^th May 2024 including all the subsequent amended election petitions filed by the Petitioner for this proceeding, are struck out accordingly. A certificate confirming the validity of Honourable Bradley Tovosia as duly elected member of East Guadalcanal Constituency is to be issued to (i) the Governor-General, (ii) the Speaker of the National Parliament of Solomon Islands and (iii) the Electoral Commission. Costs of the hearing shall be paid by the Petitioner to all the Respondents on a standard basis, to be taxed if not agreed upon.

Orders of the Court

1. The application by the First Respondent to strike out the election petition filed on 28^th May 2024 inclusive of all the subsequent amended election petitions filed by the Petitioner for this proceeding, is granted.
2. Consequently, the election petition filed on 28^th May 2024 inclusive of all the subsequent amended election petitions filed by the Petitioner for this proceeding, are struck out.
3. A certificate confirming the validity of Honourable Bradley Tovosia as duly elected member of East Guadalcanal Constituency to be issued to (i) the Governor General, (ii) the Speaker of the National Parliament of Solomon Islands and (iii) the Electoral Commission.
4. Costs of the hearing to be paid by the Petitioner to all the Respondents on a standard basis, to be taxed if not agreed.

THE COURT
Hon. Justice Augustine Sylver Aulanga
PUISNE JUDGE