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Tovosia v Koli [2025] SBCA 5; SICOA-CAC 65 of 2024 (11 April 2025)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

REASONS FOR JUDGMENT
Palmer CJ.

1. I have read the judgment by Wilson JA. and concur with the reasons and the orders made.
2. The appeal grounds raised were quite specific and I am satisfied have no basis for success in this appeal and should be dismissed. The petition is to be remitted to the High Court for hearing of the matters which the primary judge had ordered should proceed to trial.
3. The First Respondent is to have his costs to be taxed if not agreed.

Wilson JA.

4. This is an appeal against the interlocutory decision of a Judge of the High Court on an application by the respondents to an election petition to strike out the amended petition on the grounds that it was frivolous, vexatious and an abuse of process, and that it did not disclose a reasonable cause of action to warrant its progressing to trial.
5. In the election held on 17 April 2024 the appellant Tovosia and the first respondent to the appeal Koli were candidates for the East Guadalcanal Constituency. Tovosia was the successful candidate.
6. On 28 May 2024 Koli filed a petition pursuant to the Electoral Act 2018 alleging corrupt and illegal conduct by Tovosia and his agent contrary to ss 126 (election bribery), 127 (undue influence), 121 (interfering with voting) and 123 (display, publication and distribution of false material) of the Electoral Act 2018. It contained two allegations of bribery, two allegations of undue influence, one allegation of interfering with voting, and one allegation of publication, display and distribution of false material.
7. By s 108(6) of that act, the High Court –
   • must declare the election of a candidate void if any corrupt or illegal practice was committed in connection with the candidate elected or the candidate’s agent.
8. At a directions hearing on 2 July 2024 the primary judge gave Koli leave to file and serve an amended petition by 3 July 2024, and directed Tovosia to file and serve a strike-out application by 9 July 2024. His Lordship gave directions in relation to the strike-out application and listed it for hearing on 8 August 2024.
9. Koli filed an amended petition on 3 July 2024. It amended the references to provisions of the Electoral Act as follows –
   1. in paragraph 3, in lieu of ‘section 126’, it inserted ‘section126(1)(a)-(b)’;
   2. in paragraph 4, in lieu of ‘section 127’, it inserted ‘section 127(a)-(b)’;
   3. in paragraph 5, in lieu of ‘section 121’, it inserted ‘section 121(a)’; and
   4. in paragraph 6, in lieu of ‘section 123’, it inserted ‘section 123(a)-(b)’.
10. On 9 July 2024 Tovosia filed an interlocutory application to strike out the amended petition. It was set down for hearing on 8 August 2024.
11. On 8 August 2024, the primary judge gave Koli leave to file a further amended petition. The leave was time limited – that is, the further amended petition had to be filed that day. His Lordship also gave further directions for the conduct of the strike-out application. Further amendment of the petition by 8 August 2024 and the directions were set out in a document headed ‘Consent Direction Orders’ subsequently signed by the parties’ counsel and sealed by the Court on 12 August 2024.
12. Koli’s counsel filed a document on 8 August 2024 headed ‘Further Amended Election Petition’ that purported to make the following further amendments to the petition –
    1. in paragraph 3, in lieu of ‘section 126(1)(a)-(b)’, to insert ‘section 126(1)(a)-(b)(ii)’; and
    2. in paragraph 4, in lieu of ‘section 127(a)-(b)’, to insert ‘section 127(b)’.
13. The document Koli’s counsel filed on 8 August 2024 was null and void because it was not signed by the petitioner himself. See Lenga v Vokia (High Court, Aulanga PJ, 2 September 2024, [2].) It was incapable of further amending the petition.
14. An amended strike-out application by Tovosia was listed for hearing on 4 September 2024 at 9.30 am. Before that time, Koli (or his counsel) had become aware of the invalidity of the document filed on 8 August 2024. At 9 am on 4 September 2024 his counsel filed another document in exactly the same terms but signed by Koli himself. In the absence of a fresh grant of leave to further amend the petition, that document was not effective in further amending it.
15. At the commencement of the hearing on 4 September 2024, the primary judge adverted to the invalidity of the document filed on 8 August 2024 and to the document filed at 9 am. There is no transcript of the oral argument or of any ruling his Lordship made in this regard. According to Koli’s counsel, his Lordship acceded to his oral application for permission to remove the document filed on 8 August and replace it with the document filed at 9 am. Tovosi’s counsel told this court that he had contested the petitioner’s application in this regard and reserved the right to appeal.
16. Rule 33 of The Electoral Act Petition Rules 2019 provides –

Amendment of petition

33(1) The Court may, at any time before or during the trial of a petition, upon the application of the petitioner, allow the petition to be amended.
(2) The Court may permit the amendment of the petition upon such terms as to costs or otherwise as the court considers just, including the requirement of section 111(1A) of the Electoral Act.
(3) Such applications shall be made on notice to the other party to the petition.
Section 111(1A) of the Electoral Act provides that the High Court must decide a petition within 12 months after it is filed.

17. It is tolerably clear that his Lordship allowed Koli to further amend the petition in the ways contained in the document filed at 9 am. His Lordship then proceeded on the basis that the matter before him was an application to strike out the ‘Further Amended Petition’ on the grounds that it was frivolous, vexatious and an abuse of the court process, and that it did not disclose a reasonable cause of action to warrant the case progressing to trial. He struck out one of the undue influence allegations, and otherwise dismissed the application.
18. The first ground in the notice of appeal is -
    • That the learned Judge made a fundamental error of law when he allowed the Petitioner to file a new “Further Amended Election Petition” after it was discovered that the Further Amended Election Petition filed on 8 August 2024 was signed by Counsel instead of the Petitioner.
19. As I understood counsel for the appellant’s submission to this court, this ground of appeal, like the subsequent grounds, related to their contention that the petition (both in its original form and as amended on 3 July 2024) had been rendered void or superseded by the document filed on 8 August 2024. The primary judge had, they submitted, made a jurisdictional error in allowing a ‘new petition’ to be filed outside the limitation period.
20. That contention should be rejected. The filing of a null and void document could not invalidate what had gone before it in the proceeding. The petition as amended on 3 July 2024 was extant when Koli asked his Lordship for permission to file the further amended petition on 4 September 2024.
21. The special character of an election petition in a parliamentary democracy is reflected in the requirement for strict compliance with relevant provisions of electoral legislation and procedural rules. In this case the grounds of appeal were narrow, and the parties’ submissions were correspondingly narrowly focused (but for the preliminary submission by counsel for the second respondent the Attorney-General concerning finality in s 111(2) of the Electoral Act as referred to in paragraph 51 of Justice Gavara-Nanu’s reasons). In my respectful opinion, it is not open to this court to rule on the adequacy of the pleading in the petition or any other issue beyond the grounds of appeal without giving the parties the opportunity to make relevant submissions. Nevertheless, it would, in my respectful opinion, be open to this court to identify matters of potential concern, without purporting to express concluded views on them.
22. For these reasons, I would dismiss the appeal and remit the petition to the High Court for hearing of the matters the primary judge ordered to proceed to trial. The appellant should pay the first respondent’s costs to be taxed if not agreed. There should be no order as to the second respondent’s costs.

Gavara-Nanu JA.
Introduction
(Dissenting).

23. I have the misfortune to dissent from the majority decision of my learned colleagues. These are the reasons. The Appellant is appealing the decision of the primary judge to refuse his amended interlocutory application to strike out the election petition (“the petition” hereon) filed against him by the First Respondent (the petitioner). The Appellant’s amended strike out application filed on 13 August, 2024 was made pursuant to s. 111 (1) (b) of the Electoral Act, 2018 (as amended), (“the Electoral Act, 2018” hereon) and Rule 24 of the Electoral Act Petition Rules, 2019 (“the EAP Rules, 2019” hereon), claiming the petition was frivolous or vexatious or there were insufficient grounds to warrant the hearing of the petition. The Appellant also relied on Rule 9.75 of the Solomon Island Civil Procedure Rules, 2007 (“the CP Rules 2007” hereon), under which the Appellant also claimed the petition did not disclose a reasonable cause of action or was an abuse of the process.
24. The Appellant was the winning candidate for the East Guadalcanal Constituency in the last Solomon Islands general elections. The First Respondent was a losing candidate for the same Constituency. The Appellant was granted leave to appeal on 16 October 2024.

Petition

25. The Appellant was declared winner of the East Guadalcanal Constituency on 19 April 2024, with 3551 votes. The First Respondent polled 1829 votes, thus the Appellant’s winning margin of 1722 votes against the First Respondent.
26. The First Respondent filed the petition pursuant to s. 108 of the Electoral Act, 2018 and Rules 5 and 6 of the EAP Rules, 2019 on 28 May 2024. The petition was filed in the Civil Jurisdiction of the High Court and was titled Civil Case No. 191 of 2024. The First Respondent essentially made four allegations which constituted the grounds of the petition.
27. It should be noted that s. 108 of the Electoral Act, 2018 defines an election petition. But the contents and form (of an election petition) are prescribed under Rule 6 of the EAP Rules, 2019 and the procedure for filing a petition is prescribed under Rule 5 of the EAP Rules, 2019. Both Rules 5 and 6 are in mandatory terms.
28. In the petition, the First Respondent sought a declaration that the election of the Appellant was null and void. In each of the four grounds of the petition, the First Respondent basically alleged that the Appellant either in person or through his agents committed corrupt and illegal practices and breached ss. 121, 123, 126 and 127 of Electoral Act, 2018.
29. The four grounds of the petition are reproduced below. Reference to “1^st Respondent” as pleaded in the grounds of the petition is the Appellant herein. Thus, it (“1^st Respondent”) is to be read as such for the purposes of the discussions on the grounds of the petition.

(i) First ground of the petition

30. In the first ground of the petition which is pleaded in paragraph 3 of the petition, the First Respondent herein or the petitioner alleged that – “the 1^st Respondent by himself and “through” his Agent committed corrupt and illegal practice of several briberies contrary to section 126 of the Electoral Act, the particulars of which are stated below, and therefore was and is disqualified.

A. Particulars of bribery at Koilobisi on 7April 2024

On Sunday 7 April 2024, at about 12.00pm, at Koilobisi Village, Jerry Louis, an agent of the 1^st Respondent, distributed bags of rice to voters including Samuel Noris, and made promise that the 1^st Respondent would provide projects and told the persons receiving bag rice (sic.) to vote for the 1^st Respondent.

B. Particulars of bribery at Vila/Haimaro on 14 April 2024

On Sunday 14 April 2024, at about 11.00am, on Vila/Haimaro roadside, the 1^st Respondent himself gave $50.00 note to Bladina Hellen and asked her to vote for him”.

(ii) Second ground of the petition

31. Regarding the second ground of the petition, which is pleaded in paragraph 4 of the petition, the First Respondent herein or the petitioner alleged that – “the 1^st Respondent through his Agent, committed corrupt and illegal practice of undue influences contrary to section 127 of the Electoral Act, the particulars of which are stated below, and therefore was and is disqualified.

A. Particulars of undue influence at Karukaru on 3 April 2024

On Wednesday 3^rd April 2024, in the afternoon, at Karukaru village, Jerry Sabino, an Agent of the 1^st Respondent, threatened the people of Pachahila by telling them to vote for 1^st Respondent or the ex-militants would kill them.

B. Particulars of undue influence at Tabunahabu on 3 April 2024

On Thursday 11 April 2024, at about 3.00pm at Tabunahabu village, Alphone Toghovotu, an Agent of the 1^st Respondent, threatened the people of Tabunahabu by telling them to vote for the 1^st Respondent or else he would kill them”.

(iii) Third ground of the petition

32. Regarding the third ground of the petition, which is pleaded in paragraph 5 of the petition, the First Respondent herein or the petitioner alleged that – “the 1^st Respondent, through the 3^rd Respondent, committed corrupt and illegal practice of interfering with voting contrary to section 121 of the Electoral Act, the particulars of which are stated below, and therefore was and is disqualified.

Particulars of interfering with voting at Pichahila on 17 April 2024

On Wednesday 17 April 2024, the 3^rd Respondent Benedito Maneisu, being the presiding officer at Pichahila polling station and an Agent or supporter of the 1^st Respondent interfered with free voting of voters who required assistance, including Maria Tatamatena, by ticking the box of the 1^st Respondent on the ballot papers before giving the ballot papers to such vulnerable voters to place in the ballot box”.

(iv) Fourth ground of the petition

33. In the fourth and the final ground of the petition which is pleaded in paragraph 6 of the petition, the First Respondent herein or the petitioner alleged that – “the 1^st Respondent and his Agents committed corrupt and illegal practice of production, distribution, display and publication of false material contrary to s. 123 of the Electoral Act, the particulars of which are stated below, and therefore was and is disqualified;

Particulars of Display, publication and distribution of false material

On 5^th and 11^th April 2024, at Matekolukolu, the 1^st Respondent and his Agents, especially a person called Melchior Topughu, display (sic.) publish (sic.) and distribute (sic.) materials, tampered posters, which falsely imitated the prescribed Ballot Paper produced and issued for the East Guadalcanal Constituency election in 2024, and it was produced in such a manner that it falsely appears to have been issued by the Electoral Commission or the Chief Electoral Commissioner.
The Ballot Paper posters produced by the 1^st Respondent and his agents unfairly enlarged the 1^st Respondent’s name and image thereby hiding, obscuring and diminishing the name, image and symbol of other candidates, especially Andrew Tahisihaka and Samson Tahuniara”.

34. Based on the foregoing, it is claimed the 1^st Respondent to the petition (Appellant) was and is disqualified and is incapable of being the Member for East Guadalcanal Constituency in the Parliament. Thus, his election should be declared null and void.
35. That a by-election be ordered for the East Guadalcanal Constituency.
36. The First Respondent (Appellant) and his agents be referred to the Director of Prosecution to be charged and prosecuted.
37. That the First Respondent (Appellant) and other Respondents (to the petition) pay the petitioner’s (First Respondent) costs of and incidental to the petition on full indemnity basis or based on fees applicable in civil proceedings in the High Court under Rule 48 (4) of the EAP Rules, 2019.
38. It is important to note that the particulars of the alleged corrupt and illegal practices pleaded in respect of each of the four grounds of the petition are very brief. They are stated in one or two sentences, even for the fourth ground of the petition which alleges tampering of ballot papers and distribution of false election posters by the Appellant and his alleged agents, the particulars are only briefly stated. This is relevant to the question of whether the grounds of the petition were sufficiently pleaded to disclose a reasonable cause of action.

C. Amendments to the petition and further documents filed

39. On 2 July 2024, the First Respondent applied for and obtained leave to amend the petition. Thus, on 3 July 2024, the First Respondent filed the amended petition pursuant to the leave granted on 2 July 2024 (“the first amended petition” hereon). The first amended petition was signed by the First Respondent. That amended petition made several amendments to the petition. First, it amended the first ground of the petition pleaded in paragraph 3 of the petition by adding Subsections “(1) (a)-(b)” to s. 126 of the Electoral Act. The old paragraph 3 only pleaded s. 126 of the Electoral Act. Second, it amended the second ground of the petition pleaded in paragraph 4 of the petition by adding Subsections “(a) – (b)” to s. 127 of the Electoral Act. The old paragraph 4 only pleaded s. 127 of the Electoral Act. Third, it amended the third ground of the petition pleaded in paragraph 5 of the petition by adding Subsection “(a)” to s. 121 of the Electoral Act. The old paragraph 5 only pleaded s. 121 of the Electoral Act. Fourth, it amended the fourth ground of the petition pleaded in paragraph 6 of the petition by adding Subsections “(a)-(b)” to s. 123 of the Electoral Act. The old paragraph 6 only pleaded s. 123 of the Electoral Act. Fifth it added “1^{st” to} the word ‘Respondent’ in paragraph 8 of the petition. The old paragraph 8 only pleaded “Respondent”.
40. On 9 July 2024, the Appellant filed an application to strike out the first amended petition. The application was made pursuant to s. 111 (1) (b) of the Electoral Act, 2018. The Appellant claimed that the petition was frivolous or vexatious or that there were insufficient grounds to warrant the hearing of the petition.
41. On 17 July 2024, the First Respondent filed a written response to the Appellant’s strike out application.
42. On 6 August 2024, the First Respondent filed another application for leave to amend the first amended petition. On 7 August 2024, the primary court granted leave to the First Respondent to amend the first amended petition. On 8 August 2024, the First Respondent filed a further amended petition (“the second amended petition” hereon). However, the second amended petition was signed by the First Respondent’s lawyer, not by the First Respondent.
43. On 13 August 2024, the Appellant filed an amended application to strike out the second amended petition. The amended strike out application was listed for hearing on 16 August 2024; however, the hearing was later adjourned to 4 September 2024 for the reasons canvased later in the judgment.
44. On 4 September 2024, the First Respondent filed another amended petition (“the third amended petition” hereon), before the hearing of the Appellant’s amended strike out application (filed on 13 August 2024). It is not disputed that the First Respondent filed the third amended petition without leave and without notice to the Respondents, especially the Appellant. It is important to note that the third amended petition was a duplication of the second amended petition, which was null and void for not being signed by the petitioner. At the hearing before this Court, Mr Suri told the Court that the second amended petition was verbally withdrawn on 4 September 2024 resulting in the First Respondent filing the third amended petition.
45. The third amended petition made two amendments to the first amended petition. First, it amended the first ground of the petition pleaded in paragraph 3 of the petition by adding Subsection “(ii)” to s. 126 (1) (a)-(b) of the Electoral Act. Thus, the amended paragraph 3 now read, s. 126 (1) (a)-(b) (ii) of the Electoral Act. Second, it (third amended petition) amended the second ground of the petition pleaded in paragraph 4 of the first amended petition. The amendment deleted Subsection “(a)” to s. 127 (a)-(b) of the Electoral Act, pleaded in paragraph 4 of the first amended petition. Thus, the amended paragraph 4 now only read s. “127 (b)” of the Electoral Act.
46. It is important to note that all the amendments to the petition were only in relation to the particular sections of the Electoral Act, 2018, which the First Respondent alleged were breached by the Appellant. The particulars of the grounds of the petition were not amended at all.
47. It should be noted that the decision of the primary judge on the Appellant’s second amended strike out application filed on 13 August 2024 was based on the third amended petition.

D. Appeal

48. The Appellant filed the Notice of Appeal on 17 October 2024. It raises six grounds, which can be summarized as follows: -

Grounds of Appeal

1. The learned primary judge made a fundamental error of law when he allowed the First Respondent to file a new and further amended Petition after it was found that the earlier amended Petition filed on 8 August 2024 was signed by the First Respondent’s lawyer, not by the First Respondent; and
2. The learned primary judge made a fundamental error of law by dealing further with the Petition because when the amended Petition signed by the First Respondent’s lawyer was filed on 8 August 2024 it effectively rendered the Petition void and incompetent; and
3. The learned primary judge acted beyond his powers when he purportedly dealt further with the Petition after 8 August 2024, when in law there was no Petition on foot; and
4. The learned primary judge also erred in law when he purportedly dealt further with the Petition after the filing of the amended Petition on 8 August 2024 which the First Respondent’s lawyer signed because that amended Petition also superseded the original Petition and the amended Petition that was filed on 3 July, 2024; and
5. That as a consequence, the amended Petition filed on 4 September 2024 also rendered the Petition statute barred; and
6. That the amended Petition filed on 4 September 2024 was a nullity and should be dismissed; and
7. The First Respondent to pay the Appellant’s costs.

E. Submissions
(i) By the Appellant

49. The first part of the Appellant’s submission at the hearing was based on s. 111 (2) of the Electoral Act, 2018, which provides that the decision of the Court in respect of an petition is final. Section 111 is in these terms: -
    • 111.Procedures and rules for petitions
    • (1) The Court:
      • (a) must hear and decide a petition under this Part in open court; but
      • (b) may dismiss a petition without a hearing if:
        • (i) the petition is frivolous or vexatious; or
        • (ii) there are insufficient grounds to warrant the hearing of the petition.
    • (1A) The Court must decide a petition under this Part within 12 months after it is filed.
    • (2) The decision of the Court on a petition under this Part is final.
    • (3) The Chief Justice may, subject to this Act, make rules of practice and procedure in relation to petitions under this Part.
    • (4) Subject to rules made under subsection (3):
      • (a) the procedure at the hearing of an election petition, must (as near as possible) be the same (and the Court has the same powers, jurisdiction, and authority) as if it were a civil action; and
      • (b) witnesses:
        • (i) may be summoned and sworn in the same manner as in the hearing of a civil action; and
        • (ii) are subject to the same penalties for perjury.
    • (5) The Court must give a certificate of its decision on a petition under this Part to the Commission, the Governor-General and the Speaker.
50. Section 111 is under PART 8 of the Act, which has the heading in these terms – PART 8 PETITIONS RELATING TO ELECTIONS AND MEMBERS OF PARLIAMENT.
51. At the hearing, the issue regarding a decision of a primary court relating to an election petition being final under s. 111 (2) of the Electoral Act 2018, was raised as a preliminary point by counsel for the Second Respondent herein. The Court told counsel that the issue did not appear seem relevant because the provision, viz; s. 111 (2) relates to a decision of a primary court on a substantive election petition. Thus, the issue did not arise before us, the counsel conceded and did not press the issue further.
52. The principal argument by Mr Rano of counsel for the Appellant was, the primary judge committed jurisdictional errors. It was basically argued that the primary judge erred in hearing and deciding the third amended petition because the second amended petition which the lawyer for the First Respondent signed was, pursuant to Rule 6 (4) of the EAP Rules, 2019 null and void. It was also argued that the second amended petition had also superseded and nullified the petition viz; the first amended petition, therefore there was no petition on foot to amend. It was further argued that for the same reason, even the third amended petition was void of any legal effect as it had no legal basis, and even if it did, there was no petition on foot to amend. Furthermore, the third amended petition being a duplication of the second amended petition was an abuse of process. In this regard, the lawyer for the Appellant referred to the primary judge’s own decision in Bradley Lenga v. James Lency Vokia, (Unreported High Court), Civil Case No. 197 of 2024, which the primary judge delivered in the same morning of 4 September 2024, before hearing the Appellant’s amended strike out application. In Bradley Lenga, the primary judge decided a similar issue as in this case, viz; whether a further amended election petition signed by the lawyer for the petitioner (the lawyer happened to be the same lawyer for the First Respondent in this case) was valid. The primary judge held that pursuant to Rule 6 (4) of the EAP Rules, 2019, the lawyer had no authority to sign the further amended petition; only the petitioner could sign, thus the further amended petition in Bradley Lenga was declared null and void. The primary judge relied on Bae v. Ramofafia [2019] SBHC 89 which was followed in Ramoli and Ors v. Electoral Commission and Tuasulia HCSI CC 210 of 2024. It was after the ruling in Bradley Lenga, the second amended petition which Mr Suri of counsel for the First Respondent signed was verbally withdrawn, resulting in the First Respondent filing the third amended petition on that same day for the hearing of the Appellant’s amended strike out application.
53. Mr Rano relied on s. 111 (4) of the Electoral Act 2018, to submit that the principles relating to amendments to pleadings in civil proceedings prescribed under the CP Rules, 2007 applied in this case. He also relied among others, on Warner v. Samson and Another [1995] 1 QB 297, where Hodson LJ said: -
    • “I do not think that this amendment can be ignored. Once pleadings are amended, what stood before the amendment is no longer material before the court and no longer defines the issues to be tried. Here the defendant has obtained leave to amend, and there has been no appeal against that order; and, whatever may have taken place at the hearing of the application to amend, the court must, I conceive, regard the pleadings as they stand, the purpose of amendment being to determine the real question in controversy between the parties (My underlining).
54. Mr Rano relied further on the utterance by Ormerod LJ in that case where his Lordship said: -
    • “The defence in question is a pleading which is capable of amendment like any other pleading. Once it is amended, it takes its place on the record as a part of the pleadings setting out the issues upon which the action will be tried...When the amended defence was delivered, nothing had been done by the landlord to claim possession of the premises...when a claim was made the position on the record was that the landlord’s title was admitted” (My underlining).
55. Thus, the gist of the Appellant’s counsel’s submissions as I understand it is that pursuant to the observations by Hodson LJ and Ormerod LJ in Warner v. Samson and Another (supra) and other authorities cited, the primary judge lacked jurisdiction and made jurisdictional errors in hearing and ruling on the third amended petition because the second amended petition being void of any legal effect had nullified the first and third amended petitions. Therefore, the court below acted without jurisdiction on 4 September 2024 in entertaining the third amended petition. The primary judge’s decision on 18 September 2024 was as a result a nullity. It was submitted that the principles stated in Warner v. Samson and Another (supra) and other cases cited having been followed and adopted in this jurisdiction, this Court should also adopt them and allow the appeal.
56. A further reliance was placed on s. 16 of the Court of Appeal Act, (Cap. 6), it was argued that this Court has wide and unfettered discretionary powers to decide this appeal on any terms it thought just. The Court was also urged to exercise its supervisory power under s. 12 of the Court of Appeal Act, (Cap.6) and dismiss the remaining grounds of the petition which were ordered by the primary judge to proceed to trial. Furthermore, make any other appropriate orders which considered just in the circumstances of the case.

(ii) By the Respondents

57. Mr. Suri, of counsel for the First Respondent, conceded that he erroneously signed the second amended petition. He however submitted among others that the second amended petition was orally withdrawn by him on 4 September 2024 and replaced with the third amended petition. He told the Court that the oral application to withdraw the second amended petition was allowed by the court which had power to grant such an application under Rule 2.10 of the CP Rules, 2007. It was therefore submitted that the court had power to grant the amendments to the petition under Rule 8.5 of the CP Rules, 2007 and Rule 33 of the EAP Rules, 2019. Thus, it was submitted that the third amended petition was valid, and the primary judge had jurisdiction hear and rule on it.

F. Consideration

58. The election petitions fall within the civil jurisdiction of the High Court, thus they are in that regard civil proceedings therefore, where there is void in the Electoral Act, 2018 and the EAP Rules, 2019, to deal with issues arising in election petitions, appropriate provisions of the CP Rules, 2007, may be invoked to deal with such issues. In my view, this recourse is permitted by s. 111 (4) (a) of the Electoral Act, 2018, which relates to hearing of an election petition, but in my view, it also allows for hearing of an interlocutory application such as those under s. 111 (1) (b) of the Electoral Act, 2018. To me, this can be properly inferred from the combined reading of s. 111 (3) and (4) of the Electoral Act, 2018 and in my view, Rule 50 of the EAP Rules, 2019 is complementary to this procedure. It is convenient to reproduce Rule 50 of the EPA Rules, 2019. It is in these terms: -
    • Procedure where Rules silent
    • 50. Wherever these Rules are silent as to the procedure to be followed in particular circumstances the procedures of the Court shall, as near as the circumstances will admit, be the same and the Court has the same powers, jurisdiction and authority as if it were hearing a civil proceeding.
59. This appeal is against the decision of the primary judge given on 18 September 2024, in respect of the amended interlocutory application by the Appellant, filed on 13 August 2024, under s.111 (1) (b) of the Electoral Act, Rule 24 of the EAP Rules, 2019 and Rule 9.75 of the CP Rules, 2007, to strike out the second amended petition for insufficient pleading and for being frivolous or vexatious or that there were insufficient grounds to warrant the petition being tried. In his decision, the primary judge refused to strike out grounds of the petition which the primary judge referred to as grounds 3.A, 3.B, 4.A, 5 and 6 thus ordering these grounds to be tried. The application was, however, successful in respect of a ground of the petition the primary judge referred to as ground 4.B, thus it was struck out and dismissed.
60. It is important to note the following matters of procedure that occurred in the conduct of the petition by the primary judge leading up to the hearing of the Appellant’s amended strike out application on 4 September 2024. In my view these are relevant for the Court to consider when deciding whether there was abuse of process by the First Respondent, if there was, then that should render the petition frivolous or vexatious under Rule 9.75 of the CP Rules, 2007 and s. 111 (1) (b) of the Electoral Act, 2018. The issue of abuse of process was considered by the primary judge.
61. On 2 July 2024, the primary judge gave inter partes Directional Orders which were as follows. First, the First Respondent be granted leave to amend the petition and file and serve the amended petition by 3 July 2024. Second, the Applicant (Appellant) file and serve his strike out application by 9 July 2024. Third, the First and Second Respondents respond to the Appellant’s strike out application by 16 July 2024. Fourth, the Applicant (Appellant) file and serve their written submissions with relevant case law authorities by 18 July 2024. Fifth, the First and Second Respondents file and serve their written submissions in response, with relevant case law authorities by 25 July 2024. Sixth, the Applicant’s (Appellant’s) strike out application be heard on 8 August 2024 at 9,30am. Seventh, costs be reserved. The Orders were perfected and sealed on 4 July 2024.
62. The First Respondent filed the first amended petition on 3 July 2024, in compliance with the Directional Orders.
63. The Appellant filed the strike out application on 9 July 2024, also in compliance with the Directional Orders.
64. The First Respondent, also in compliance with the Directional Orders filed his response to the Appellant’s strike out application on 17 July 2024. The First Respondent in his written response argued that the petition sufficiently pleaded material facts in support of the allegations or the grounds of the petition, the petition was therefore competent.
65. On 8 August 2024, the primary judge gave Consent Directional Orders. The Orders were as follows. First, the First Respondent file and serve the second amended petition by 8 August 2024 (the same day Consent Directional Orders were given). Second, the Appellant file and serve an amended application to strike out, sworn statements in support of the amended strike out application and amended written submissions by 13 August 2024. Third, the First Respondent and Second Respondent (Noel Matea – the Returning Officer) file and serve their written submissions by 14 August 2024. The Orders were filed on 12 August 2024.
66. On 16 August 2024, the primary judge gave further Directional Orders, which were as follows. First, the matter be adjourned to 4 September 2024 at 9.30am for hearing of the Appellant’s amended strike out application. Second, the Attorney General, on behalf of the Second and Third Respondents to the petition file and serve their written submissions by 23 August 2024. Third, costs be reserved. The Orders were perfected and sealed on 19 August 2024.
67. On 4 September 2024, the First Respondent filed the third amended petition, which as I alluded to earlier was a duplication of the second amended petition. On that same day, the primary judge heard Appellant’s amended strike out application. The third amended petition was filed without leave and notice to the Respondent, especially the Appellant.
68. On 18 September 2024, the primary judge delivered his decision in which the Appellant’s amended strike out application relating to grounds 3.A; 3.B; 4.A; 5 and 6 of the petition was refused. These grounds were ordered to be tried. Only ground 4.B of the petition was struck out and dismissed. Costs were ordered to be in the cause.
69. There is no material evidence before the Court showing that the hearing of the Appellant’s first strike out application scheduled for 8 August 2024 was vacated, and if there was such an application, who the mover of such application was. In the absence of such evidence, it is reasonable to assume that the Appellant’s strike out application was not heard on 8 August 2024, because of the application for leave to further amend the petition, filed by the First Respondent on 6 August 2024. It is also reasonable to assume that it also led to the Consent Directional Orders being given on 8 August 2024. It is further noted that on 8 August 2024, the second amended petition was filed. That also appears to have led to the further Directional Orders being given by the primary judge on 16 August 2024, pursuant to which the hearing of the Appellant’s amended strike out application filed on 13 August 2024 was set down for hearing on 4 September 2024. Also on 4 September 2024, the First Respondent was allowed to file the third amended petition before the hearing of the Appellant’s amended strike out application. The third amended petition was filed without leave, unlike the two previous amended petitions, viz; the first and second amended petitions for which leave was sought and obtained before the amended petitions were filed. It is to be noted that the Appellant’s first strike out application sought to strike out the first amended petition for insufficient pleadings.
70. The decision being appealed relates to exercise of discretion by the primary judge in which the primary judge purportedly refused to strike out three of the four grounds of the petition. It is trite law that for this Court to interfere with the decision of the primary judge, the Appellant must demonstrate that the primary judge erred in the exercise of his discretion in refusing to strike out grounds of the petition he referred to as grounds 3.A, 3.B, 4.A, 5 and 6. In Walesaefala v. Solomon Islands Water Authority [2024] SBCA 5; SICOA-CACA 13 of 2022 (31 May 2024), this Court was faced with a similar situation, in which it had to consider an interlocutory application under Rule 9.75 (a) and (b) of the CP Rules, 2007 to strike out the appellant’s civil claim for being frivolous or vexatious or for not disclosing a reasonable cause of action. The Court said: -
    • 15. The decision appealed against here relates to exercise of discretion regarding practice and procedure. It is trite law that for the appeal to succeed the appellants must demonstrate that the learned primary judge erred in exercising his discretion in striking out the appellants’ claim. The oft cited principles which an appellate court should have regard to when deciding whether it should interfere with the decision of the primary judge were succinctly stated by Kitto J. of the High Court of Australia in Australian Coal and Shale Employees Union v. The Commonwealth [1953] HCA 25; [1956] 94 C.L.R 621 at 627. These principles have been widely adopted by the courts in this and other jurisdictions. His Honour stated the principles in this way:
      • “The appellant Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction except where the exercise of that discretion is wrong. A discretionary judgment will be set aside if an identifiable error occurred in the exercise of the discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is unreasonable or plainly unjust” and such an error can be inferred.”
    • 16. These principles were stated broadly by the High Court in a much earlier case of House v. The King [1936] HCA 40; (9136) 55 C.L.R 499 at 504-505 per Dixon, Evatt and McTiernan JJ. Their Honours said:
      • “The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” (My underlining).
71. The Appellant has raised issues relating to the jurisdiction of the primary court in his grounds of appeal. Mr Rano of counsel for the Appellant submitted that the primary judge lacked jurisdiction to entertain the Appellant’s amended strike out application on 4 September 2024 because the third amended petition filed on 4 September 2024 upon which the primary judge’s decision was based was a duplication of the second amended petition which was null and void. In advancing this argument, Mr Rano purportedly relied among others, on the excerpts of the judgments of Ormerod LJ and Hodson LJ in Warner v. Samson and Another (supra). In my view, what their Lordships said in their respective judgments simply reiterated the general rule that any part of a document or a process that is amended becomes obsolete and is no longer alive and therefore cannot be relied upon. What is alive and can be relied upon is the amending document or process. There cannot be any dispute that the second amended petition which the lawyer for the First Respondent signed was pursuant to Rule 6 (4) of the EAP Rules, 2019, null and void. This was also conceded by Mr Suri. The effect of this is the first amended petition filed on 3 July 2024 was the one to be determined. However, given that there was the third amended petition which purportedly was filed in an attempt to revive or replace the second amended petition which was rendered null and void, the question still remains whether the third amended petition was valid, and whether the primary judge had jurisdiction to hear and rule on it.
72. In my respectful opinion the primary judge lacked jurisdiction to hear and determine the Appellant’s amended strike out application on 4 September 2024 because it was not properly before the primary court as it was related to the second amended petition which was rendered null and void. In this regard, the third amended petition was pursuant to Rule 9.75 of the SICP Rules, 2007 and s. 111 (1) (b) of the Electoral Act, 2018 frivolous or vexatious and an abuse of process. The First Respondent had improperly used the processes of the court to obtain the relief sought. The filing of the third amended petition was sudden and made without proper notice to the other parties, especially the Appellant. The Appellant should have also been allowed to file a proper amended strike out application. The First Respondent should have also sought leave to file the third amended petition as he did previously and should have given notice to the Appellant and other Respondents to the petition for the third amended petition. He did not. To me, this was a clear breach of s. 33 (3) of the EPA Rules, 2019 which is in mandatory terms. Thus, it was an abuse of process. The Rule is in these terms: -

Amendment of petition

33. (1) The Court may, at any time before or during the trial of a petition, upon the application of the petitioner, allow the petition to be amended.
(2) The Court may permit the amendment of the petition upon such terms as to costs or otherwise as the Court considers just, including the requirement of section 111 (A) of the Electoral Act.
(3) Such application shall be made on notice to the other party to the petition.

73. In Fasi v. Regina [2005] SBHC 76; HCSI-CRC 489 of 2005 (24 June 2005, Kabui J. in describing abuse of court process said: –
    • “The courts are obliged to protect themselves as institutions of fairness in terms of the proper administration of justice from abuse of process which may result in the courts being ridiculed as instruments of injustice, oppression and harassment if abuse of process is not jealously guarded against by the courts. Put it in another way, the image of the court system must be safe-guarded against abuse of process”. (My underlining).
74. In an earlier case of Tatau v. Director of Public Prosecutions [1991] SBHC 36; HCSL – CRAC 289 of 1992 (November 1992, Palmer J (as he then was), in discussing abuse of process cited a Papua New Guinea case of The State v. Peter Painke [1976] PNGLR 210, where the court at pages 212-213 said: -
    • “There is no doubt that this Court, as a superior court of record has inherent jurisdiction to take steps to prevent any abuse of its process. It is a power that extends to all situations where the justice of the case requires it to be exercised and is not confined to any closed categories of cases. It is a jurisdiction which the Court has “to ensure that the pursuit of its ordinary procedures by litigants does not lead to injustice..... may be exercised at any stage of the proceedings where it appears to be demanded by the justice of the case.” (My underlining).
75. Then his Lordship went on to quote an excerpt from the judgment of Mitchell J in Tringali v Stewardson Stubbs & Collett Ltd [1965] N.S.W.R.418 in which his Honour at p.418 said: -
    • “Abuse of the process of the court is an expression used to describe any use of the process or procedures of the court for an improper purpose or in an improper way.” (My underlining)
76. In Michael Newell Wilson v. Clement Kuburam [2016] PGSC 7; SC1489 the Papua New Guinea Supreme Court in commenting on the inherent power of the Court to protect its processes from being abused, said this: -
    • “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”.
77. Having regard to these principles the court below in my respectful view erred in law and acted without jurisdiction in hearing and ruling on the third amended petition which for the reasons given was an abuse of process. Furthermore, there was no strike out application by the Appellant before the primary court because the amended strike out application which the primary judge purportedly dealt with was against the second amended petition which was a nullity.
78. The grounds prescribed for summary determination under s. 111 (1) (b) of the Electoral Act, 2018, and Rule 9.75 under CP Rules, 2007, all go to the competency of a proceeding, thus the jurisdiction of the Court.
79. It is convenient to reproduce Rule 9.75 of the CP Rules, 2007. The Rule is in these terms: -

Frivolous and vexatious proceedings

9.75 If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) the proceedings are frivolous or vexatious; or
(b) no reasonable cause of action is disclosed; or
(c) the proceedings are an abuse of the process of the court;

the court may, on the application of a party or on its own initiative, order that the proceedings be dismissed generally or in relation to that claim.

80. Under Rule 9.75 of the CP Rules, 2007 the Court is empowered to dismiss a proceeding (petition) either generally or in respect of a part of the proceeding (petition) either upon an application of a party or on its own initiative. The phrase on its own initiative in this Rule clearly refers to the inherent power of the Court.
81. In my view, in an application under s. 111 (1) (b) of the Electoral Act, 2018 and Rule 9.75 of the CP Rules, 20027 the court must among others, look at the pleadings first to see if the pleadings disclose a reasonable cause of action. This is relevant for summary dismissal under s. 111 (1) (b) of the Electoral Act, 2018 and Rule 9.75 of the CP Rules, 2007, especially on the question of whether the petition is frivolous or vexatious which is an issue or ground tied to the issues of whether the petition disclosed a reasonable cause of action.
82. In Joachim Maser and Ronnie Bruno v. Henry Salin & Ephraim Naso [2021] PGSC 30; SC2093, Papua New Guinea Supreme Court in discussing the inherent power of the Court to deal with matters going to the jurisdiction of the Court said this: -
    • It is settled law that, the Courts have an inherent jurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that is always open to the court at any stage of the proceedings. As such, it does not matter whether a party appearing before the Court is raising it, because it goes into the competence of the very proceedings brought before the Court.
    • ...The inherent power of the Court carries with it, the onerous responsibility to safeguard its processes and procedures against abuse.” (My underlining).
83. It is important to remember that election petitions are not ordinary civil proceedings as they challenge the wishes of the majority of voters in a particular constituency. Moreover, the petitions aim to remove the right of the winning candidates from holding and enjoying public office as a Member of Parliament. Thus, the onus placed on petitioners is onerous. The election petitions therefore must not only comply strictly with the electoral laws, but must also be sufficiently pleaded and must disclose a reasonable cause of action. The seriousness of election petitions is reflected in the higher burden of proof placed on a petitioner to prove every allegation made in the petition. Thus, on trial the petitioner must prove the allegations against the respondent with higher standard of proof than the civil standard of proof but only slightly lower than the criminal standard.

Pleadings

84. The pertinent issue that was before the primary judge was whether the pleadings disclosed a reasonable cause of action. The primary judge had the power to consider this issue under Rule 9.75 of the CP Rules, 2007. The relevance of any evidence to be called at the trial depended on the material facts pleaded. In Kopu v. Bonuga [2024] SBHC 146; HCSI-CC 193 of 2024 (30 October 2024), Bird PJ, in my respectful view emphasized the same point. The learned judge was considering pleadings in an election petition in which allegations of bribery, fraud and undue influence were made. The learned judge relevantly said this: -
    • In any event, it is essential that all material facts must be pleaded. The sworn statements are merely used as evidence to verify the facts that are pleaded. If all material facts are not pleaded, the sworn statements could not be used to cure that defect. The basis of the whole case is what is pleaded. In this case, the basis of this proceeding is what has been pleaded in the petition.
    • Under rule 9.75 (2) of the CPR, it is discretionary for the court to hear and take into account the evidence adduced in a hearing of an application to strike out. That rule reiterates the need that pleadings in any case must be clearly particularised and sufficient to invoke the power of the court to entertain it.
    • In relation to the above discussion, I have also taken into consideration the various cases relied upon by all counsel. I take particular reference to the Sasako case and the comments of the Honourable Chief Justice therein. I am inclined to adopt the reasoning and principle cited by the learned Chief Justice.
    • I have also noted that counsel for the Petitioner/1^st Respondent has submitted that the judgment of the Honourable Chief Justice in that case was made after trial. I have also noted that aspect of the case. I am nonetheless of the view, that having read that judgment, it only confirms to me the very fact that any allegation of such a nature as in this proceeding, cannot and will never succeed after trial. There has been lack of sufficient pleadings in the Sasako case.
    • That abnormality or defect can never be cured even at trial. It would therefore be time wastage and will become very costly if I decide to maintain the petition in such a circumstance. On that note, Mr Kwaiga’s argument could not be sustained. In any event, the recent rulings of the Honourable Chief Justice in the case of Peter Soqoilo v Jimson Tanagada – CC185 of 2024 and Jeromy Manengelea Rex v Peter Shanel Agovaka – CC176 of 2024 will confirm my above view.
    • If I may also mention, that section 126 of the EA has five (5) subsections to it. All of the allegations contained in paragraphs 3.1, 3.2, 3.3, 3.4, 3.7, 3.8, 3.9, 3.10 and 3.11 are very broad and general under that section. No specific subparagraphs were cited that relate to each of the allegations. The court is not assisted with general citation of sections relied upon by the Petitioner/1^st Respondent. What that could have meant is that the whole of section 126 of the Act has been allegedly breached. That could not be the case.
    • Having thoroughly discussed what is required in a strike out application, I am of the view that the allegations contained in paragraphs 3.1, 3.2, 3.3, 3.4, 3.7, 3.8, 3.9, 3.10 and 3.11 of the petition are not sufficiently substantiated in the pleadings and cannot be sustained and are struck out in their entirety. (My underlining).
85. In Salopuka v. Panakitasi [2020] SBHC 72; HCSI-CC 280 of 2019 (1 May 2020), Palmer CJ had this to say regarding pleading: -
    • “There is a major flaw to this allegation from the outset and which would warrant its dismissal. This relates to the incomplete nature of the pleadings in not setting out sufficient particulars of bribery.
    • ...The function of pleadings is not merely to define the cause of action, which is, that a promise, offer or gift was made or given, but also to show what acts or omissions will be put forward as constituting the specific element of that activity being done with an intention to influence voters to vote for the Respondent. It is necessary to state how and in what way the gift was corruptly given so as to influence the voter to vote for the Respondent. When assessed in that light, the facts pleaded are insufficient and inadequate. This is bad pleadings and should be dismissed”. (My underlining).
86. Then in Manetoali v. Manemahaga [2024] SBHC 104; HCSI-CC 179 of 2024 (17 September 2024, Aulanga; PJ said this regarding pleading: -
    • “The pleadings alleging this ground lack a cause of action against the First Respondent. The allegation is fundamentally insufficient and inherently weak. Therefore, it is pointless to preserve this ground for trial”.
87. Thus, it is an established principle of pleading that all the material facts supporting the claims, or the grounds of the petition must be clearly and precisely pleaded and the material facts pleaded must be sufficient and must disclose a reasonable cause of action. This is vital to sustain a claim or the ground of an election petition at trial. Thus, whether the grounds of the petition will be sustained at trial or not will depend on whether material facts had been pleaded. The added reason is to make the opposing party aware of what is alleged against it, and what to defend, even for the party to be able to determine whether the case alleged against it is sustainable in law, if not, then the opposing party can apply for the proceeding to be dismissed. This is a long-established principle of law. For example, in Philips v. Philips [1878] UKLawRpKQB 96; [1878] 4 Q.B.D 127 at 139, Brett L.J stated the time-honoured principle this way: -
    • “In my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard, and tell them what they have to meet when the case comes on for trial” (Our underlining).
88. Once it is established that the pleadings are insufficient or bad, thus not disclosing a reasonable cause of action, that would be the end of the matter because there would be no life in the petition and everything after that will also have no life. In such situations, the proceeding or the petition would be rendered frivolous or vexatious. The court has power to dismiss proceeding or a petition in such situations to protect its processes from being abused.
89. The pleadings would be insufficient and bad if material facts were not pleaded or insufficiently pleaded. In Bruce .v. Odhams Press Ltd [1936] 3 All ER 287 at 294, Scott L.J in discussing the meaning of ‘material’ in the context of ‘material facts’ said: -
    • “The word material means necessary for the purpose of formulating a complete cause of action and if one “material fact” is omitted, the statement of claim is bad” (Our underlining).
90. Odgers on – “Principles of pleadings” at page 98 says: -
    • “Whether a particular fact is material or not depends mainly on the special circumstances of the particular case...Sometimes it is material to allege and prove that the defendant was aware of a certain fact; at other times it is sufficient to aver that he did some act, without inquiring into the state of his mind” (Our underlining).
91. Material facts which are not pleaded cannot be relied upon on trial as there would be nothing for the claimant or the petitioner to prove. See, Kopu v. Bonuga (supra). Proper and good pleadings in an election petition should state the elements of any corrupt and illegal acts or practices allegedly committed by the respondents. The courts have power to decide these issues before trial and if a petitioner who wanted to rely on a material fact that has not been pleaded the proper thing for the petitioner to do is to formally apply for leave to amend the pleadings with appropriate notice being given to the opposing party for the amendment and plead the fact(s) to be proved on trial by evidence. In this case, the First Respondent was given ample opportunity to make appropriate amendments to the petition. In my view, even after the amendments that had been made to the petition, the pleadings as they stand cannot be sustained at trial. It would be clear abuse of process if the pleadings were amended again. In my view, that would result in redrafting the petition. In these circumstances, this being a civil appeal, this court has power under s. 12 of the Court of Appeal Act, (Cap. 6) to exercise the powers the primary judge should have exercised and strike out and dismiss the rest of the grounds of the petition. Section 12 of the Court of Appeal Act (Cap. 6) is in these terms: -
    • Powers of Court of Appeal in civil appeals
    • 12. For all the purposes of and incidental to the hearing and determination of any appeal under this Part of this Act and the amendment, execution and enforcement of any order, judgment or decision made thereon, the Court of Appeal shall have all the power, authority and jurisdiction of the High Court of Solomon Islands and such power and authority as may be prescribed by rules of Court. (My emphasis).
92. Any special legal relationship alleged between the parties or between the parties and their alleged proxies which constitute material facts, should be pleaded precisely and clearly, with particulars of such relationship. This is vital in a case where it is alleged that the respondent committed corrupt and illegal practices through alleged agents as in this case.
93. It is worth making some observations on what a frivolous or vexatious action or proceeding is. In this regard, I find the commentaries by Sir Jack Jacob, Q.C., LL.D., Dr. Juris and Iain S. Goldrein, MA - (Sweet & Maxwell) in their book titled – “Pleadings: Principles and Practice” at pages 222-223, helpful. The learned authors say, if the pleading and or action is frivolous or vexatious, the action (proceeding) may be ordered to be struck out, or amended, and the action may be ordered to be stayed, dismissed or judgment to be entered. The learned authors say this: -

“Frivolous or Vexatious Pleadings and Actions

Introduction. Any pleading or endorsement of the writ which is frivolous or vexatious may be ordered to be struck out or amended, and the action may be ordered to be stayed or dismissed or judgment to be entered, as the case may be.
Frivolous – meaning. A pleading or an action is frivolous when it is without substance or unarguable. Thus, a proceeding may be said to be frivolous when:

• (a) A party is trifling with the court; or
• (b) When to put it forward would be wasting the time of the court; or
• (c) When it is not capable of reasoned argument; or
• (d) It is without foundation; or
• (e) Where it cannot possibly succeed; or
• (f) Where the action is brought or the defence is raised only for annoyance; or
• (g) To gain some fanciful advantage; or
• (h) When it can really lead to no possible good.

Vexatious – meaning. A pleading or an action is vexatious when it lacks bona fides and is hopeless or oppressive and tends to cause the opposite party unnecessary anxiety, trouble and expense. So, it is vexatious and wrong to make solicitors parties to an action merely in order to obtain discovery from them”.

94. Therefore, a proceeding which does not disclose a reasonable cause of action by its pleading is frivolous and may be dismissed or struck out. A case which fails to comply with mandatory statutory requirements, such as the Statute of Frauds and so on, which cannot possibly succeed if tried can be frivolous and may be dismissed or struck out. A vexatious proceeding is one where a defendant is dragged into court to defend a claim which is a mere sham, useless and futile and which cannot possibly succeed at trial. In this regard, considerations for a case which is frivolous, or an abuse of process may overlap with those for a case that is vexatious.
95. When exercising its power to summarily dismiss a proceeding, the court has wide discretion even to go behind the pleadings and inquire summarily into the actual facts and circumstances, which gave rise to the issues before the court. For example, whether the claim or the petition is valid and competent at all, for the purpose of deciding at the very outset whether there is a cause of action. Such a situation may arise where a claim is statute barred or where a condition precedent going to the competency of the proceeding or petition is not established or met, thus a matter going to the competency and the validity of the proceeding. Another classic example is where a proceeding is filed outside the period allowed by law. In such a case, the proceeding or the petition would be clearly incompetent and an abuse of process. That is not the case here, it therefore follows that the case should be decided among others on how the grounds of the petition were pleaded.
96. In all the grounds of the petition except one, the First Respondent has alleged that the Appellant through his alleged agents committed corrupt and illegal practices and breached ss. 121, 123, 126 and 127 of the Electoral Act, 2018 and was therefore disqualified. It was alleged that the Appellant, through his alleged agents bribed and unduly influenced voters and interfered with voting. Furthermore, it is alleged the Appellant through his agents display (sic.), publish (sic.) and distribute (Sic.) false ballot papers and election posters. In the single allegation of bribery, it is alleged the Appellant personally gave a $50 note to a female and asked her to vote for him. All these allegations purportedly constituted the grounds of the petition.
97. It is convenient at this juncture to look at the decision of the primary judge in respect of each of the allegations against the Appellant. Regarding the ground of the petition relating to the actions of the alleged agent of the Appellant namely Jerry Louis giving bags of rice to the people at Koilobisi village on 7 April 2024 the primary judge after finding that the facts pleaded in the petition were sufficient (after the counsel for the Appellant submitted to the court that pleadings were insufficient and ambiguous) said in his view, the facts pleaded were sufficient to warrant the ground proceeding to trial. The learned primary judge said the question of who gave the bags of rice to the people who received them and for what purpose the bags of rice were given needed to be investigated at trial. The primary judge said the number of bags of rice given to the people by Jerry Louis and telling the people that the Appellant would provide projects to them if they voted for the Appellant and whether such promises to those people by Jerry Louis could influence their decisions when voting were matters of evidence to be given at the trial by those people as witnesses. The primary judge said the sworn statements and facts pleaded in the petition should not be taken in isolation to “predispose” this ground of the petition without trial. Thus, the ground was ordered to proceed to trial.
98. Regarding the single ground of the petition relating to the Appellant allegedly giving a $50 note to a woman along Vila/Haimaro road on 14 April 2024 and asking her to vote for him, the learned primary judge said the incident was witnessed by other people. His Lordship said the Appellant had raised the defence of alibi, however the defence of alibi itself indicated the need not to strike out the ground. The alibi defence needed to be tested at trial and the Appellant should call evidence and give the First Respondent opportunity to test his defence. Thus, the ground was ordered to proceed to trial.
99. As to the ground of the petition relating to the alleged undue influence which allegedly occurred at Karukaru village on 3 April 2024 where Jerry Sabino an alleged agent of the Appellant is alleged to have threatened the people of Pachahila by allegedly telling the people that ex-militants would kill them if they did not vote for the Appellant. The primary judge said there was evidence that Jerry Sabino was an agent of the Appellant, and the evidence satisfied s. 108 (8) of the Electoral Act, 2018. His Lordship said he looked at the evidence and noted that the threat was made to a big crowd of villagers, and the threat was made in the presence of likeminded supporters of the Appellant. This resulted in the village chief in fear, told the people to vote for the Appellant. The primary judge said the threat was extensive and undue influence was one that could influence the decision of the magnitude of Pachahila villagers to vote in a particular way. His Lordship said this was recognized by s. 108 (7) (b) of the Electoral Act, 2018 and what the village chief said to the villagers and the reasons for telling them to vote for the Appellant needed to be investigated at trial. Thus, the ground was ordered to proceed to trial.
100. Regarding the ground of the petition relating to undue influence which allegedly occurred at Tabunahabu village on 11 April 2024, where Alphone Toguhovotu an alleged agent of the Appellant allegedly made verbal threats to the people of Tabunahabu village and allegedly told them to vote for the Appellant or he would kill them. His Lordship said after considering a case authority which the counsel for the First Respondent (petitioner) cited and relied upon and the sworn statements in support of two witnesses for the First Respondent (petitioner), there was nothing worth in the sworn statements upon which it could be said that the undue influence was extensive in nature to influence the decision of the villagers to vote for the Appellant. His Lordship said it was a one-off incident which was insufficient to meet the threshold of whether the threat was “extensive” that it “may be reasonably supposed to have affected the result” of the election as required by s. 108 (7) of the Electoral Act, 2018. His Lordship also said the pleadings and evidence in support of the ground were inherently insufficient to establish a cause of action against the Appellant. His Lordship said this ground of the petition had been further amended and the ample opportunity for the First Respondent to improve the ground had come and gone. Thus, the ground was dismissed.
101. Regarding the ground of the petition relating to the alleged interferences of voting, the primary judge noted that the Second and Third Respondents to the petition had submitted that the pleadings were insufficient in respect of the vulnerability of voters who were alleged to have been illegally interfered with by electoral officials. The primary judge noted that the Second and Third Respondents had submitted that insufficient pleadings had made it impossible for them to defend the ground, the petition should therefore be struck out. His Lordship cited s. 121 (a) of the Electoral Act, 2018, which is in these terms - “121 A person commits an offence if the person, without lawful authority: (a) interferes with an elector who is casting his or her vote;” The learned primary judge said, while the submission by the First and Second Respondents raised insufficiency of material facts being pleaded to disclose a cause of action for this ground, the submission overlooked the evidence of Maria Tatamatena, Eddie Leu and Edwin Ninialu, in support of this ground. The learned primary judge said the sworn statements of the three witnesses had been disclosed in good time to the Respondents. The primary judge said what was important was that legal ingredients or elements with supporting facts of alleged interferences with voting by voters had been pleaded in the petition. His Lordship said whether the voter needed assistance of the electoral officers were matters for trial. The alleged vulnerability of the witnesses also needed to be tested and investigated at trial. Thus, the ground was ordered to proceed to trial.
102. In respect of the ground of the petition relating to alleged illegal practice of producing, distributing, displaying and publishing false ballot paper posters for the Appellant by enlarging them resulting in significantly diminishing the names, images and symbols of other candidates, namely, Andrew Tahisihaka and Samson Tahuniara, the primary judge said the Appellant had conceded in his draft defence that enlarged posters were made by his campaign team not by the Electoral Commission. The primary judge said: “...The materials were made and distributed purposely to differentiate the name, picture and party symbol of the First Respondent from the rest of the candidates. This is for the election campaign to promote the First Respondent’s candidacy and to lure prospective supporters from East Guadalcanal Constituency”. His Lordship said there was no issue that the posters were enlarged by the Appellant’s supporters. His Lordship noted the charge was brought under s. 123 (a) and (b) of the Electoral Act, 2018 and said – “The question of the falsity of the posters and whether the enlarged posters appear to have been issued by the rightful electoral authority in Solomon Islands, and whether the posters may have the potential of affecting the election result, are matters that will be investigated at trial. Evidence should be heard to determine this ground and so the sworn statements and the pleadings should not be taken into (sic.) isolation. It is therefore improper for the Court to put wight (sic.) on the sworn statements when evidence for this ground is yet to be called at trial. This ground will proceed to trial”. Thus, the ground was ordered to proceed to trial.
103. Firstly, regarding the procedures applied by the primary judge before the purported hearing of the Appellant’s amended strike out application on 4 September 2024, I am of the respectful opinion that the learned primary judge fell into error by entertaining the third amended petition for which no notice was given to the appellant and other Respondents to the petition and hearing the Appellant’s purported amended strike out application which was not properly before the court. I also find the Directional Orders given by the primary judge prima facie favoured more the convenience of the First Respondent. A clear example of this is where the first scheduled hearing of the Appellant’s strike out application was deferred without the hearing date being vacated. This led to the First Respondent being ordered to file an amended strike-out application. Furthermore, the First Respondent was allowed to file the third amended petition on 4 September 2024, which was a duplication of the second amended petition filed on 8 August 2024 which was null and void. The third amended petition was determined against the Appellant’s amended strike out application which was filed on 13 August 2024. It is important to note that the amended strike out application was related to the second amended petition filed on 8 August 2024. In that regard, I find the primary judge had no power and lacked jurisdiction to decide the Appellant’s amended strike out application against the third amended petition.
104. The First Respondent relied on s. 33 (1) of the Electoral Act Petition Rules and argued that the primary judge had power to allow the petition to be amended at any time before or during the trial of the petition upon an application by him. However, the procedure under s. 33 is not automatic. Under s. 33 (2), the Court has discretion to decide whether an amended petition can be filed and if so, whether the case should be adjourned. The issue of costs had to be decided as well. Furthermore, the requirements of s.33 (3) of the EAP Rules, 2019 must be complied with; viz, that an application by a petitioner to amend a petition “shall” be made on a notice to the other party to the petition. Section 33 (1) is in that regard subject to s. 33 (2) and (3) of the EAP Rules, 2019. There is no evidence before the Court that such notice under s. 33 (3) of the EAP Rules, 2019 was served on the Appellant by the First Respondent for the third amended petition.
105. The First Respondent also appears to have breached the mandatory requirements of s. 25 of the EAP Rules, 2019, viz; no notice for the directions hearing appears to have been filed let alone served on each of the Respondents to the petition by the First Respondent within 28 days of the petition being filed as required under s. 25 (1). The petition was filed on 28 May 2024, under s. 25 (3), such notice (for a directions hearing) had to be served on each of the Respondents to the petition at the time of serving the petition on them. This is a mandatory requirement which the First Respondent had to strictly comply with.
106. In all the allegations in the grounds of the petition of corrupt and illegal practices of bribery and undue influence and so on of groups of people either by the Appellant personally or through his alleged agents, the pleadings did not state the vital element of whether such practices prevailed so extensively that they may be reasonably supposed to have been affected result of the election, as required under s. 108 (6) and (7) of the Electoral (Amendment) Act, 2023. Not only would the First Respondent call evidence at trial to prove the allegations, but the Appellant would also know what evidence to call to defend the allegations. This is a vital element of the allegations and should have been pleaded.
107. From the analysis of the decision of the primary judge, I also find that the learned primary judge did not adequately address the pleadings in respect of each of the allegations which constituted the grounds of the petition. In all the allegations or grounds of the petition, except one, it was alleged that the Appellant through his alleged agents committed corrupt and illegal practices in which it was alleged that he (Appellant) through his alleged agents breached provisions of the Electoral Act, 2018. In this regard, the appellant was alleged to have, through his alleged agents, bribed and unduly influenced people to vote for him. It was also alleged that he through his alleged agents interfered with voting and published and distributed false ballot papers and election posters. As to the alleged corrupt and illegal practices by the Appellant through his alleged agents, the pleadings did not state whether the Appellant knew and personally authorized what his alleged agents did and said with the intention to influence people to vote for him. These were material facts constituting vital elements of the allegations against the Appellant and should have been pleaded. The pleadings as they are lack vital material facts and in my respectful view, all the grounds should have been dismissed because they could not be sustained at trial. As a general rule, the First Respondent cannot call evidence at trial to prove a fact that has not been pleaded. It is an established principle that pleadings must also sufficiently inform the respondent of what to defend on trial and establish facts to be relied upon at trial, the proof of which should sustain the grounds of the petition. These requirements were not met by the pleadings, the pleadings are therefore insufficient. Regarding allegations that the Appellant and his alleged agents tampered and interfered with ballot papers, again I find there is insufficient pleading of material facts to sustain the ground at trial. For example, particulars of what each of the alleged agents said or did should have been pleaded. More importantly, how the Appellant assisted his alleged agents and authorized the alleged activities of the alleged agents and whether he had personal knowledge of the alleged activities of his campaign team and whether he personally authorized those activities. These material facts were not pleaded. I also find with respect the evidence to which the primary judge referred and relied upon were not based on or tied to any material facts pleaded. This was an error of law.
108. Regarding the single allegation of the Appellant giving $50 to a woman and allegedly telling her to vote for him, I am again of the view that pleadings are insufficient because the circumstances under which the money was given to the woman have not been pleaded, considering also the requirements of s. 126 (5) of the Electoral Act. 2018, which I consider are relevant as material facts to sustain the allegations at trial. The allegation against the Appellant was made pursuant to s. 126 (1) (a)-(b) (ii), which is in these terms: -
     • 126 Election bribery
     • (1) A person commits an offence if:
       • (a) the person directly or indirectly promises, offers or gives a benefit to another person; and
       • (b) the person does so with the intention of influencing the other person to:
         • (i) vote or refrain from voting at an election; or
         • (ii) vote in a particular way at an election; or
         • (iii) influence a third person to vote, refrain from voting or vote in a particular way at an election.
         • (iv) Maximum penalty: 150,000 penalty units or imprisonment for 15 years, or both.
     • (2) Subsection (1) does not apply in relation to a declaration of policy or a promise of action by a candidate as a campaign activity.
     • (3) A person commits an offence if:
       • (a) the person directly or indirectly solicits, accepts or receives a benefit for himself or herself, or another person; and
       • (b) the person does so with the intention that he or she will be influenced to:

(i) vote or refrain from voting at an election; or

(ii) vote in a particular way at an election; or

(iii) influence a third person to vote, refrain from voting or vote in a particular way at an election.

Maximum penalty: 150,000 penalty units or imprisonment for 15 years, or both.

(4) A person commits an offence if the person gives another person money or any other item with the intention that the money or item be used as a benefit in the commission of an offence under subsection (1).

Maximum penalty: 150,000 penalty units or imprisonment for 15 years, or both.

(5) It is a defence to a prosecution for an offence against subsection (1) or (3) if the defendant proves that the defendant promised, offered, gave, solicited, accepted or received the benefit:

• (a) in accordance with custom; and
• (b) openly, in the course of a traditional exchange of gifts; and
• (c) for the benefit of a community or group of people and not for an individual.

109. The onus was on the First Respondent (petitioner) to plead the facts and circumstances showing that the gift of $50 to the woman did not fall into the defence or exceptions stated in s. 126 (5) (a), (b) and (c) of Electoral Act. The First Respondent did not discharge this onus.
110. Thus, for the purposes of the allegation based on s. 126 of the Electoral Act, 218, the First Respondent should have also pleaded the facts and circumstances in which the money was given to the woman, the reasons the money was given to her and whether the woman was an eligible (registered) voter for the East Guadalcanal Constituency. See, Fono v Fiulaua [2011] SBHC 6; HCSI-CC 335 of 2010 [10 March 2011). In my view pleading these facts was necessary given the special requirements under s.126 (5) of the Electoral Act. In my view, these are relevant and material facts which had to be proved on trial by the First Respondent and sustain the allegation or ground of the petition and should have been pleaded. See, Bae v Ramofafia (supra) and Pukakoqoro v. Kuma [2024] SBHC 38; HCSI-CC 198 of 2024 (16 October, 2024). These requirements were succinctly stated by Palmer CJ in Salopuka v. Panakitasi (supra). In that case, the learned Chief Justice relevantly said: -
     • “The function of the pleadings is not merely to define the cause of action, which is, that a promise, offer, or gift was given, but also to show that acts or omissions will be put forward as constituting the specific element of that activity being done with an intention to influence voters to vote for the Respondent. It is necessary to state how and in what way the gift was corruptly given so as to influence the voter to vote for the Respondent.
     • By failing to do that, the pleadings amounted to nothing more than what can be deduced by necessary implication or inference, and is unacceptable. When assessed in that light, the facts pleaded are simply insufficient” (My underlining)
111. I find the observations by the learned Chief Justice apposite to the views I have expressed regarding the need to plead material facts containing the elements of the alleged corrupt and illegal practices. Regarding the fourth ground of the petition, in which it is alleged that the ballot papers were tampered and interfered with by the alleged agents of the Appellant and that they published false ballot papers, again I find the pleadings insufficient, vague and ambiguous. The pleadings also appear to relate to a single ballot paper and who actually committed those activities and how the Appellant was involved in those activities had not been stated clearly in the pleading. In this regard, I note that the primary judge said the Appellant said falsifying ballot papers were done by his (Appellant’s) campaign team. In my view, that was a material fact that should have been pleaded if the First Respondent had to rely on it at trial.
112. The principles of pleading regarding allegations in election petitions against the respondents of allegedly committing corrupt and illegal practices either personally or through their alleged agents of bribery, undue influence, interfering with voting of voters are well settled in this jurisdiction. See, Manetoali v. Manema (supra). In that case, Aulanga PJ relevantly said: -
     • “Turning to the allegations, allegation 3. 1 relates to the alleged bribery that occurred on 30^th March 2024 at Tatamba village. This involves Nathanial Tona, an agent of the First Respondent, gave a solar battery with light to Elsie Fane with an intent of influencing her to vote for the First Respondent. I have looked at the pleadings and the evidence in support. Unfortunately, there is no allegation in the pleadings and in evidence to show that the First Respondent in fact knew or authorised the giving of the solar battery and the light to Fane. The connection or nexus to impute the First Respondent’s culpability to this allegation was not established in the pleadings or even in the evidence before this Court. This results in the insufficiency of pleadings which prohibits the drawing of adverse inference against the First Respondent. This aspect of case was explained in Maneka v Bosawai [2024] SBHC 73, where Bird J stated [paragraph 47]:
     1. “Allegations 11 to 13 are against the conduct of Mr Luke Mae. He was an alleged agent for Dr Bosawai. He was alleged to have given $100.00 each to Father Jeremiah Suburua and Ms Mary Talungaho with intent to induce them to vote for Dr Bosawai. In relation to these grounds there is also no evidence that Mr Mae is an agent of Dr Bosawai. There is no evidence that the money gifted was to induce them to vote for Dr Bosawai. If there was any words uttered by Mr Mae, there is no evidence to show that there was any corrupt arrangement between Dr Bosawai and Mr Mae. The words uttered could not support the allegation of corrupt practise of bribery.”
     • Also, in Lusibaea v Filualea [2020] SBHC 28, Higgins J (as he then was) when considering a bribery allegation said to have committed by an agent of the candidate, correctly echoed [page 10]:
     2. “The next allegation is that during the voyage to Auki, Mr Kona gave the deponent $100 for “Smoke” and urged him to vote for the 1^st Respondent. If proved, that would be a classic situation of bribery but, even if so, there is no available inference that can be drawn with the requisite degree of certainty the 1^st Respondent knew of or authorised this payment, particularly as it arose, apparently spontaneously, during the voyage.”
     • The pleadings alleging this ground lack a cause of action against the First Respondent. The allegation is fundamentally insufficient and inherently weak. Therefore, it is pointless to preserve this ground for trial”. (My underlining).
113. In Sasako v. Sofu [2020] SBHC 7; HCSI-CC 277 of 2019 (17 February 2020), Palmer CJ said this: -
     • “On the question of agency, once the allegation has been dismissed, the issue of agency automatically falls apart. But even, if the evidence somehow should bear up, which is denied, the pleadings on agency, also do not match up. All it makes is a bare assertion, that Mr. Belo is a strong supporter or an agent of the First Respondent, nothing more.
     • It is bad pleading to allege merely that a right, or a duty, or a liability exists; the facts must be set out, which give rise to such right or create such duty or liability[3]. In this instance, the Petitioner is obliged to set out the facts and circumstances, on which he relies on as creating that agency. By failing to set out the material facts on the allegation of agency, it is not open to the Petitioner, to rely on evidence at trial to prove agency, where the facts had not been pleaded or set out.
     • I am not satisfied accordingly, that the evidence adduced is sufficient to support the allegation agency. It falls well short of the threshold of proof of agency.
     • In terms of new evidence sought to be introduced at the trial to prove agency, I reiterate it is not open to the Petitioner to introduce new evidence, which had not been disclosed in the sworn statement of witnesses, and the material facts not pleaded”.
114. In Kopu v. Bunaga (supra) Bird; PJ said: -
     • “Section 126 of the EA provides for election bribery. It is a criminal creating provision. If a person is found guilty under that section, the consequences are those contained in section 129 thereof. On that token, it requires a higher burden of proof than other civil proceedings.
     • As alluded to in paragraph 50 above, the allegation is very generally stated. Under s. 126 of the Act, pleading should include, how were the purported agents termed as such. It must also be pleaded whether they were campaign managers, counting agents or to state the capacity they hold or act as agents. Apart from the issue of agency, there must also be proof of intention to influence upon an allegation under s. 126 of the Act.”
115. Having regard to these principles, the pleadings regarding allegations of the Appellant committing corrupt and illegal practices through his alleged agents are clearly insufficient and all the grounds of the petition based on the alleged actions of the alleged agents of the Appellant cannot disclose a reasonable cause of action and must be dismissed.
116. It is also important to note that the primary judge did not specifically address the requirements under s. 111 (1) (b) of the Electoral Act, 2018 and Rule 9.75 of the CP Rules, 2007 which were raised before him, especially whether the pleadings in the petition disclosed a reasonable cause of action.
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. A clear example of the mandatory requirements of Rule 6 was shown in Bradley Lenga v. James Lency Vokia (supra) and this case in which the court said the mandatory requirements of Rule 6 (4) of the EPA Rules, 2019 must be complied with strictly. In this case, the second amended petition was declared null and void because it breached the mandatory requirements of Rule 6 (1) (4) when the lawyer signed the second amended petition not the petitioner.
119. The EPA Rules, 2019 were made pursuant to s. 111 (3) and (4) of the Electoral Act, 2018. The Rules are consistent with s. 111 (3) and (4) of the Electoral Act, 2018. The requirements under Rule 6 (1) (e) in my view complement the requirements for “expeditious resolution of the petitions” under Rule 4. These requirements complement the requirements for the immediate service of the petitions on the respondents to the petitions under Rule 25 (3). All the requirements under these Rules are in my respectful opinion consistent with the requirement of s. 111 (1A) of the Electoral Act 2018, that the court “must” decide a petition “within 12 months” after they are filed. Section 108 of the Electoral Act, 2018, defines an election petition, but the contents of an election petition which must be complied with are stated in Rule 6 of the EPA Rules, 2019. The other significance of Rule 6 (1) (e) in my respectful view is to ensures that every respondent in an election petition is properly and effectively served personally with a petition. This is so that they can, pursuant to the requirements of Rule 25 (1) of the EAP Rules, 2019, attend the directions hearing which must occur within 28 days after the filing of the petition and defend the petition. Thus, the requirements of Rule 6 (1) (e) of the EPA Rules, 2019 cannot be ignored.
120. For myself, given the overall facts and circumstances of the case, this is not the type of case that should be returned to the court below for further deliberation. As I alluded to in my judgment, this Court has power under s. 12 of the Court of Appeal Act, (Cap. 6) to exercise the powers the primary judge could have exercised which is to strike out all the grounds of the petition, hence the petition in its entirety.
121. I find that the pleadings in the petition were insufficient and bad and did not disclose a reasonable cause of action. Thus, I find that the petition is frivolous or vexatious and an abuse of process and is incompetent. It follows that the petition cannot possibly be sustained if tried. I therefore would allow the appeal and pursuant to the powers given to this Court under s. 12 of the Court of Appeal Act, (Cap. 6), I would order that the remaining grounds of the petition described as “grounds 3.A, 3.B, 4.A, 5 and 6”, which were ordered by the primary court to be tried, thus constituting the petition be struck out, thus the petition would be dismissed in its entirety.
122. I am respectfully of the view that s. 16 of the Court of Appeal Act, (Cap.6), confers unfettered discretionary power on the Court to consider even on its own initiative issues relating to competency of the petition as they arise before it to do justice in the particular circumstances of the case. Such power resonates with Rule 9.75 of the CP Rules, 20027. Section 16 of the Court of Appeal Act, (Cap.6) is in these terms: -

Discretionary power of the Court of Appeal

16. Notwithstanding anything hereinbefore contained, the Court of Appeal may entertain an appeal made under the provisions of this Part of this Act on any terms which it thinks just.

123. Consequently, I would allow the appeal on the following grounds: -
     1. The pleadings in the petition were insufficient and did not disclose a reasonable cause of action.
     2. The petition was frivolous and vexatious and an abuse of process.
     3. The primary judge acted without jurisdiction when he on 4 September 2024, purportedly heard and determined the Appellant’s amended strike out application which was not properly before the court together with the First Respondent’s purported third amended petition which was a duplication of the second amended petition which was null and void.
     4. The petition was incompetent in that it did not comply with the mandatory requirements of Rule 6 (1) (e) of the EPA Rules, 2019.
124. I would order the Appellant’s costs of and incidental to this appeal as well as the costs of and incidental to the amended strike out application by the Appellant in the court below to be paid by the First Respondent, such costs be taxed, if not otherwise agreed.
125. I would order accordingly.

ORDERS OF THE COURT:

1. The Appeal is dismissed herewith.
2. The Petition is remitted to the High Court for hearing of the matters the primary judge ordered to proceed to trial.
3. The Appellant should pay the First Respondent’s costs to be taxed if not agreed, and there should be no order as to the second respondent’s costs.

Palmer CJ.
Wilson JA
Gavara-Nanu JA