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Tovosia v Koli [2024] SBCA 25; SICOA-CAC 65 of 2024 (16 October 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. The Applicant makes this Application seeking leave to appeal the decision of his Lordship, Justice Aulanga (“the primary judge” hereon) given on 4 September, 2024, in which the Applicant’s Application to strike out an Amended election Petition (“the Petition” hereon) against him as the Member of Parliament for the East Guadalcanal Constituency by the Petitioner (“the First Respondent” hereon), was refused.
2. The Notice of Application for Leave to Appeal was filed on 2 October, 2024. The Application was heard on 14 October, 2024, pursuant to the Certificate of Urgency filed by the Applicant also on 2 October, 2024, which sought an urgent hearing of the Application and of the appeal, in the event of leave being granted.
3. The Applicant also seeks costs of the Application.

Grounds for Application for Leave to appeal

4. The Applicant essentially raises 3 grounds for Application for Leave to appeal, which can be summarized as follows: -
   • (a) The learned primary judge erred in law in allowing and treating a superseded election petition to be valid, and making a ruling on it; and
   • (b) The learned primary judge made procedural irregularities under the electoral laws and failed to comply with mandatory requirements under the Electoral laws; and
   • (c) The learned primary judge lacked jurisdiction to make determinations on invalid amendments to the election petition.

Background facts given by the Applicant

5. The Applicant gives among others, the following background facts. On 28 May, 2024, the First Respondent filed an election Petition against the Applicant, who was the duly elected Member for East Guadalcanal Constituency in the last Solomon Islands general elections. The First Respondent was a losing candidate for the same Constituency. For the purposes of this Application, it is convenient at this juncture to note that the Petition was duly signed by the First Respondent as required by the electoral laws.
6. On 3 July, 2024, the First Respondent filed an amended Petition, which the First Respondent himself signed, and filed on the same day. The amended Petition was filed by consent.
7. On 9 July, 2024, the Applicant filed an application to strike out the amended Petition filed on 3 July, 2024. The Applicant invoked s. 111 (1) (b) of the Electoral Act, 2018, in seeking to strike out the amended Petition, viz; for being frivolous or vexatious or that there were insufficient grounds to warrant the hearing of the Petition. Thus, although the amended Petition filed on 3 August, 2024 by the First Respondent was by consent, the Applicant subsequently applied to have it struck out under s. 111 (1) (b) of the Electoral Act.
8. On 6 August, 2024, the First Respondent again filed an application seeking leave to further amend the Amended Petition filed on 3 August, 2024. The Applicant argued that, that application was forced on by his application to strike out which was filed on 9 July, 2024 under s. 111 (1) (b) of the Electoral Act.
9. On 8 August, 2024, following a contested application, the primary judge granted leave to the First Respondent to file a further amended Petition. But the amended Petition was signed by the First Respondent’s lawyer, not by the First Respondent.
10. On 13 August, 2024, the Applicant filed an amended application to strike out the further amended petition filed on 8 August, 2024, on the basis among others, that it was signed by the First Respondent’s lawyer and not by the First Respondent.
11. In his final ruling on the Applicant’s amended strike out application, which is the subject of this Application, the primary judge treated the Amended Petition filed on 3 July, 2024, as valid and made determinations on it, although it had been, according to the Applicant superseded by the subsequent amended petitions filed by the First Respondent.
12. During the hearing of the Application, I asked both counsel to assist the court on the relevant criteria the Applicant had to satisfy for grant of leave to appeal the decision of the primary judge. The Court received no assistance from counsel on the point. The Court sought counsels’ assistance on the point because no case law was cited by either counsel on the point, and the Court was not addressed on the point in their submissions. All the submissions by counsel, both oral and written including cited cases were of no assistance to the Court because they were only relevant to substantive issues relating to appeal proper. I have no doubt that lack of assistance by counsel on the point was not because of lack of decided cases in this jurisdiction on the point, viz; the criteria for grant of leave. The Court considered it appropriate to specifically raise point or issue with counsel because it was vital, pertinent and determinative, unfortunately it was not seen in the same light by counsel. The end result to me was that much time was unnecessarily wasted on matters or issues which were irrelevant to the issue before the Court, viz; satisfying or establishing the relevant criteria for grant of leave to the Applicant to appeal the decision of the primary judge.
13. As I reminded counsel during hearing, the issue before me was whether the materials before the Court sufficiently or prima facie established the criteria for grant of leave, which was whether the materials disclosed an arguable case or serious issues warranting the appeal on the merits before the full Court of Appeal. Thus, my task was simply to decide that issue, and the onus was on the Applicant to satisfy that test or criteria. In this regard, I find support from the observations made by the court in Lord & Co. Ltd v. Timothy Inapero [2010] PGSC 33; SC1081. I find the observations plenary and are pertinent and helpful. The Court relevantly said: -
    • “The principles on grant or refusal of leave applications are settled. The grant or refusal of leave is discretionary. The main principle to be established on an application for leave is that there is an arguable case.
    • He (counsel) submitted that when the Court considers the nature of the case, the grounds of the case, the affidavit material and the questions involve, they demonstrate that the Appellant’s case is arguable.
    • He (counsel) submitted that the grounds set out in the application for leave are not speculative or spurious but demonstrate that the Appellant has an arguable case.
    • A quick perusal of all the materials, in particular the grounds or reasons why leave should be granted, and the nature of the case as pleaded, demonstrate clearly that, the issues raised are arguable”. (My underlining).
14. I respectfully agree with these observations and adopt them here as constituting the appropriate test for the Applicant to satisfy for the Court to grant him leave to appeal the decision of the primary judge.
15. Therefore, all that the Applicant has to satisfy is that the materials before the Court firmly show or disclose an arguable case or that there are serious issues to be determined in an appeal. This is a key requirement for grant of leave because in my view, the leave to appeal procedure, not only establishes the relevant criteria for grant of leave but it also safe guards the process and ensures that leave to appeal process is not abused and that only meritorious cases or applications proceed to appeal.
16. In this case, I also find the materials before the Court provide compelling reasons that the decision of the primary judge should be appealed.
17. Sometimes, the courts deciding applications for leave to appeal apply the test of the “appellant having a reasonable chance or prospect of succeeding on appeal, if leave is granted”. I find such approach inappropriate and dangerous simply because the appeal is still not yet on foot and the issues are not yet litigated before the appellate court. With respect, I do not prescribe to such test and will not apply it here. It can amount to an abuse of process for using the court’s processes improperly. In Michael Newell Wilson v. Clement Kuburam [2016] PGSC 7; SC1489, the Supreme Court of Papua New Guinea in emphasizing this point said: -
    • “The types of abuses of process may vary from case to case but to establish an abuse of process there must be evidence showing that the processes of the court have been improperly used; or have been used for an improper purpose; or have been used in an improper way; or that such abuse of process have resulted in the right of the other party being denied, defeated or prejudiced: National Executive Council v. Public Employees Association [1993] PNGLR 264 and The State v. Peter Painke [1976] PNGLR 210”.
18. In this case, the narrative of the background facts by the Applicant is also disputed in certain respects by the First Respondent who has also raised a series of legal issues in submissions. Both parties have indeed raised serious legal and factual issues. For example, it was argued by counsel for the First Respondent that the ruling by the primary judge which is the subject of this application is not before the court. Furthermore, the First Respondent argued that the Court of Appeal lacks jurisdiction to hear any form of appeal against the ruling of the primary judge because pursuant to s. 111 (2) of the Electoral Act, 2018, the decision of the primary court was final. In this regard, counsel for the First Respondent also relied on the principle of finality to proceeding. However, whether this argument is applicable to applications of this nature viz; interlocutory applications in election petition proceedings or it only applies to substantive election petition proceedings, is a contentious legal issue, which can only be decided by the full Court of Appeal.
19. The Applicant has also raised an issue of whether the original petition has been superseded by the amended petitions, this also gives rise to the question of whether there is a valid Petition at all against the Applicant. One of those amended petitions which the Applicant claims was treated as valid by the primary judge was signed by the lawyer for the First Respondent. The lawyers for the Applicant and the Second Respondent have cited some decided cases to argue that the amended petition upon which the primary judge made determinations was not valid. Thus, it was submitted that the Petition has been rendered invalid. These are all serious legal and factual issues which in my view constitute compelling reasons for leave to appeal should be granted so that the issues can be properly and fully determined by the full three member bench of the Court of Appeal in an appeal.
20. Consequently, having regard to the principles stated in Lord & Co. Ttd v. Timothy Inapera (supra), even from a quick perusal of the materials before the Court including submissions by counsel, I am satisfied that they disclose and establish an arguable case or serious legal and factual issues which can only be properly and effectively determined by the Court of Appeal on appeal proper. Thus, it is my duty to grant leave to the Applicant to appeal the decision of primary judge, which I now do.
21. The Court makes the following orders: -
    1. Leave is granted to the Applicant to appeal the decision of the primary judge given on 4 September, 2024; and
    2. Pursuant to the Certificate of Urgency filed on 2 October, 2024, the Applicant shall file and serve his Notice of Appeal forthwith; and
    3. The parties are to file and serve their submissions, including extracts of submissions for substantive appeal forthwith; and
    4. The substantive appeal to be set down for hearing next Tuesday 22 October, 2024 at 1.30pm.
    5. The Applicant’s costs of and incidental to this Application are to be paid by the First Respondent, which are to be taxed, if not otherwise agreed.
22. Orders accordingly.

Gavara-Nanu JA