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Maesua v Dausabea [1998] SBCA 3; CA-CAC 14 of 1997 (26 January 1998)

IN THE COURT OF APPEAL OF SOLOMON ISLANDS
Civil Appeal No. 14 of 1997

JUDGMENT

The appellant, David Maesua, was one of a number of unsuccessful candidates in the General Election held on 6 August 1997 for the National Parliament who presented petitions to the High Court complaining of an undue return or undue election of a member. It was claimed they were out of time and the petitioners were called on to show, cause why their petitions should not be struck out. After a hearing in the High Court confined to this issue, the learned Chief Justice ruled that all petitions filed later than one month after 12 September 1997 were out of time and they were struck out. The appellant’s petition was one of those affected, having been presented on 13 October, 1997, and he appeals against that ruling.

Under s 81(1) of the National Parliament Electoral Provisions Act 1980 (“the Act”), a petition may be presented to the Court in its Civil jurisdiction within one month from the date of publication of the result of the election pursuant to s 56(2)(b) of the Act. (“Court” in this context means the High Court -see s.16 (1) of the Interpretation and General Provisions Act 1978). Section 56 (1) states that at the conclusion of the election’ the returning Officer shall notify the successful candidate and the Governor-General of the result. Under sub s(2)(a) His Excellency is required to cause it to be published locally in such manner as may seem to him appropriate, and under subs(2)(b) he shall also “cause the result to be published as soon as may be in the Gazette”. It is from the date of that publication that the one month’s time for presentation of a petition commences to run under s 81 (1).

Pursuant to s.56(2)(b) the results of this election were published in the issue of the Solomon Islands Gazette bearing the date 12 September 1997, and the learned Chief Justice held that to be the date of publication for the purposes of s.81 (1). However, on the evidence presented to the High Court it is clear that the Gazette was not even printed on that date, and the appellant’s solicitor was unable to obtain a copy until 13 October 1997 in spite of earlier attempts to do so. In evidence was a letter from the Government Printer stating that the “Gazette which contains the 1997 General Elections” was received on 15 September (We take this to be a reference to the statement of results sent by His Excellency for publication). The letter outlined the steps then taken which included typesetting, proof reading and acceptance by the Prime Minister’s Office, with the material going to press on 1 October 1997. It was bound and finished and was despatched to Government Ministries on 13 October.

The issues in the appeal were whether publication of the result pursuant to s.56(2)(b) occurred on 12 September; and if not, whether it was made on a date rendering the presentation of the appellant’s petition to the High Court in time under s.81(1). At the outset Mr. Tautao of counsel for the first respondent submitted that there was no right of appeal from the High Court in this matter, and he referred us to s.82 of the Act subs(1) of which provides for the hearing of every election petition by the Court. Subsection (3) reads:

“At the conclusion of the hearing, the Court shall determine whether the member whose return or election is complained of or any other and what person, was duly returned or elected, or whether the election was void, and shall certify such determination to the Governor-General and, upon such certification being given, such determination shall be final and shall not be questioned in any proceedings, nor shall any appeal lie therefrom to any court; .....”

It will be noted that it is only the determination of the petition after a hearing which is declared final and not subject to appeal. What was decided here was only the preliminary question of whether it was presented in time, and that was a matter falling within the High Court’s ordinary jurisdiction, in respect of which there is the general right of appeal in civil proceedings under s.11 of the Court of Appeal Act. Accordingly we hold that this appeal is properly brought.

The Solomon Islands Gazette follows long-established English practice in being recognised as the officially authorised means of promulgating executive government announcements, and under s.3 of the Documentary Evidence Ordinance 1956(Cap 6) prima facie evidence of any proclamation, order, or regulation issued by Her Majesty may be given in all Courts etc. by production of a copy of the Gazette purporting to contain a copy of such items. Section 3, as we read it, provides that production of a copy of the Gazette is prima facie evidence of its contents but not prima facie evidence that the date which it bears is evidence of the date of its publication. There is no definition of publication or of the date thereof in the Act or, so far as we are aware, in any comparable legislation. “Publication” in s.56(2)(b) must therefore be given its ordinary meaning of making the information concerned available to the public or putting it into the public domain, which is precisely the purpose for which the Gazette is used. That purpose is particularly relevant to Electoral legislation, where the availability of information to citizens is important in enabling them to exercise their democratic rights. The Court should not lose sight of this in interpreting such legislation. It follows that the date of publication in the Gazette will be the first occasion on which the issue of the relevant Gazette containing the prescribed information is made available to the general public, in the sense that any member thereof is able to obtain a copy from the appropriate issuing authority, which would appear to be the Government Printer. On the evidence this did not happen until 13 October, when the appellant’s solicitor reported having obtained a copy from that office on that date, and being advised that it had only just been printed, but not yet sent out to subscribers.

What, then, is the significance of the date “12 September 1997” in the heading of the Gazette just below its title? It could be regarded as identifying the particular issue - i.e. “the Gazette of 12 September 1997”, but the date is preceded by what is evidently a serial number (No 44) which could provide a sufficient identity. By analogy with the date on newspapers and other regularly published material, the date on the Gazette could be taken as prima facie evidence of the publication date, sufficient to satisfy any statutory or other legal requirements in the absence of adequate proof to the contrary. There are obvious reasons of public convenience for the adoption of such a view, and the learned Chief Justice was influenced by the need to have certainty in fixing the time limit in reaching his conclusion that the petitions were out of time.

There was, however, ample evidence establishing that the election results were not published in the Gazette on 12 September, and sufficient evidence was produced by the appellant showing that his petition was presented to the High Court well within one month from any date on which they could be taken to have been published. Accordingly the appeal must be allowed.

Decision

Appeal allowed with costs. The order made in the High Court striking out the appellant’s petition is set aside.

Mason P.,
President, Court of Appeal

McPHERSON J.A
Judge of Appeal

CASEY J.A
Judge of Appeal