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Darcy v Piasi [1994] SBHC 23; HC-CC 262R of 1993 (17 August 1994)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 262 of 1993

GORDON DARCY

-v-

JACKSON PIASI

High Court of Solomon Islands
(Muria, CJ.)

Hearing: 17 July 1994 at Gizo
Ruling: 17 August 1994

F. Waleilia for the Respondent
C. Ashley for the Attorney General and Returning Officer
Petitioner not present

RULING

MURIA, CJ: This matter has been set down for hearing here at Gizo today. The Petitioner has had notice of this hearing and so did the Respondent. The Respondent turned up for trial but not the Petitioner.

The Registrar of the High Court has been told verbally by Mr. Teutao, solicitor for the Petitioner, that the Petitioner was withdrawing his petition against the Respondent. However, as at this moment no application for leave to withdraw the petition has ever been filed with the Court as required by rule 29 of the election Petition Rules 1976 which provides that:

"29. (1) An election petition shall not be withdrawn without the leave of the Judge, and such leave may be given upon such terms as to costs and otherwise as the Judge may think fit.

(2) If a petition is withdrawn the petitioner shall be liable to pay the costs of the respondent.

(3) Where there are more petitioners than one, application to withdraw the petition shall not be made except with the consent of all the petitioners.

(4) Before leave for the withdrawal of a petition is granted there shall be produced affidavits, as required by this rule, by all the parties to the petition:

Provided that the Judge may, on cause shown, dispense with the affidavit of any particular person if it seems to the Judge on special grounds to be just to do so.

(5) Each affidavit shall state that, to the best of the deponent's knowledge and belief, no agreement or terms of any kind whatsoever has or have been made, and no undertaking has been entered into in relation to the withdrawal of the petition; but if any lawful agreement has been made with respect to the withdrawal of the petition, the affidavit shall set forth that agreement and shall make the foregoing statement subject to what appears from the affidavits.

(6) The affidavits of the applicants shall further state the ground on which the petition is sought to be withdrawn."

Mr. Waleilia solicitor for the Respondent, had been contacted by Mr. Teutao about the intended withdrawal of the petition. But Mr. Waleilia was right to demand that the rules be complied with and to have the withdrawal properly put before the court.

I agree with Mr. Waleilia that the rules of court on election petitions must be complied with if the petitioner wished to withdraw his petition, particularly where, as in this case, the action has been fixed for hearing. In such a case, leave of the court must be obtained for any withdrawal or discontinuation of the petition. For that, there must be an application made to the court for leave to withdraw. Rule 30 of the Election Petition Rules says:

"r. 30. An application for leave to withdraw a petition shall be filed at the office of the Registrar. It shall be in duplicate and signed by the petitioner or petitioners and it shall state the ground on which the application is supported. Such application may be in the form set out in Form 7 in the Schedule hereto."

In this case there is nothing placed before the Court to enable it to consider whether or not leave to withdraw the petition should be given. There was no application or notice of the intended withdrawal as required by the rules. To merely verbally inform the Court and the other party of the desire to withdraw the election petition or to simply write a letter informing the Court of the withdrawal is insufficient and not in accordance with the rules.

In those circumstances the court has no choice but to summarily dismiss the petition.

The Respondent and the Attorney General both seek costs occasioned by this dismissal. I feel they are entitled to their costs.

Election petitions are meant to be a process whereby genuine questions arising from any election as to the right of any person to be or remain an elected member are brought before the court to be determined. It is not a process whereby a defeated candidate can simply swam the court with allegations in the hope that those allegations may be established in the process.

The course of action now taken by the Petitioner in this case is clearly one that must be met with costs.

Having heard Mr. Waleilia and Mr. Ashley I must grant the Respondent and Attorney General their costs in this matter. That costs clearly must be on the higher scale on own solicitor/client basis.

Order: Petition dismissed.

Petitioner to pay Respondent's costs in this case.

Petitioner also must be pay the Attorney General's costs.

(G.J.B. Muria)
CHIEF JUSTICE