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Fiulaua v Fuo'o [2025] SBHC 2; HCSI-CC 206 of 2024 (29 January 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 206 of 2024

BETWEEN

JACKSON FIULAUA
The Petitioner

AND:
RICKY FUO’O
The First Respondent

THE ATTORNEY GENERAL
(Representing the Assistant Returning officer for Central Kwara’ae)
The Second Respondent

AND:

THE ATTORNEY GENERAL
(Representing the Assistant Presiding Officer for Radefasu Polling Station)
The Respondent

Hearing: 28 August 2024
Judgment: 29 January 2025

Counsel: Mr Schottler Kubensky Kwaiga for the Applicant/First Respondent
Counsel: Mr Howard Lapo for the Second and Third Respondent
Counsel: My Lloyd Fitz Reggie for the Respondent/ Petitioner

Palmer CJ:

1. This is an application to strike out an election petition, filed by the Applicant/First Respondent on 1 July 2024, pursuant to Rule 24 of the Electoral Act Petition Rules 2019 (“the Petition Rules”), section 111(b) of the Electoral Act 2018, Rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (“the Civil Procedure Rules”), and the inherent jurisdiction of the Court.

Orders Sought

2. The Applicant seeks the following orders:
   • (i) The Petition filed on 30 May 2024 be struck out or dismissed;
   • (ii) Costs of this application be paid by the Petitioner to the Respondents on an indemnity basis; and
   • (iii) Any other relief the Court deems fit.

Grounds for the Application

3. The grounds relied upon are:
   • (i) The Petition is frivolous, vexatious, vague, and ambiguous;
   • (ii) The facts pleaded in the Petition cannot change the election results; and
   • (iii) The allegations in the Petition cannot change the election results.
4. The Applicant relies on the following sworn statements filed on 1 July 2024:
   • (i) Statement of Chief Hedry Tofe;
   • (ii) Statement of Irene Sui;
   • (iii) Statement of Jerry Lui; and
   • (iv) Statement of Hensley Kafute’e.

Ground 1: Failure to Effect Proper Service

5. The Applicant argues that the Petition was not properly served, as required by the Petition Rules and the Electoral Act 2018.
6. The Applicant contends:
   • (i) No personal service was effected as required by Rule 19.1 of the Petition Rules, which mandates personal service within 14 days of filing.
   • (ii) No application for substituted service was made within 10 days of filing, as provided by Rule 19.2, and
   • (iii) No evidence of service was filed as required by Rule 20.
7. Consequently, the Applicant asserts that the lack of proper service constitutes a breach of section 112 of the Electoral Act 2018. Section 112 states:
   • “112.Non-compliance with this Act
   • (1) This section applies if it is established during a hearing of an election petition that, in relation to the election concerned, there was:
     • (A) a failure to comply with the time required for doing anything under this Act; or
     • (B) an omission or irregularity in filling out a form required under this Act.”

Ground 2: Failure to State the Correct Legal Basis

8. The Applicant submits that the section cited in the Petition—section 126(6) of the Electoral (Amendment) Act 2023—does not exist.
9. The Respondent counters that the Petition is founded on allegations of corrupt and illegal practices, as well as fraudulent voting at two polling stations (Arabala and Radefasu), and asserts that the correct provisions are sections 108(6) and (7) of the Electoral (Amendment) Act 2023.

Jurisdiction to Strike Out the Petition

10. This Court’s jurisdiction to hear strike-out applications is well established in previous cases, including the recent one of Jeromy Manengelea Rex v. Peter Shanel Agovaka and Others^[1].
11. Rule 24 of the Petition Rules empowers the Court to hear this type of application, while section 111(1) (b) of the Electoral Act enables the Court to strike out petitions deemed frivolous, vexatious, or insufficient to warrant a hearing.
12. Rule 9.75 of the Civil Procedure Rules similarly allows the Court to dismiss actions that disclose no reasonable cause of action, are frivolous or vexatious, or constitute an abuse of process.
13. The Civil Procedure Rules may be relied on pursuant to Rule 50 of the Civil Procedure Rules in particular where the Petition Rules are silent. Rule 50 provides:
    • “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.”

Service Requirements and Defects

14. The Applicant submits that service of the Election Petition on him was not done according to the requirement of the Petition Rules. He says that it was not served on him personally. He submits that this has to be done within 14 days of the filing date of the Petition.
15. Secondly, he submits that where service cannot be done personally, the Rules provide for an application for substituted service but has to be done no later than 10 days after filing of the Petition.
16. Thirdly, the Petition Rules require that an “evidence of service” should be filed by the Petitioner. Learned Counsel, Mr Kwaiga submits that this requirement has not been complied with as well.
17. He submits that accordingly, no proper service had been effected and the Petition should be dismissed.
18. In response, the Respondent/ Petitioner objects to this ground of defective service on the basis that this was not raised in the Application. Mr. Fitz Reggie submits that this ground should not be considered by the Court as it amounts to an abuse of the process of court.
19. Secondly, he submits no evidence has been filed in support of this ground.
20. Thirdly, in any event he submits that the service carried out by Steve Lalase on 3^rd June is an effective service. He relies on the sworn statement of George Leamana filed on 27^th August 2024.
21. He also relies on Rule 49 of the Petition Rules to submit that the informality of the proceedings should not be fatal.

Discussion and Findings

22. Proper service is fundamental to the commencement of an election petition. Sections 100(1A) and 112 of the Electoral Act 2018 impose strict timelines and requirements to ensure petitions are resolved within 12 months.
23. It is pertinent to keep in mind that the rules issued by the Court in 2019, purposely set out in fairly stringent terms, guidelines on how an election petition is to be filed and managed by the court to ensure completion within the 12 months statutory time limit. This included stringent terms on requirements for service of an election petition.
24. This means that once the ground of defective service has been raised, the Court is obliged to consider this issue and the parties to make submissions on the matter. This is not a trivial matter as submitted by the Respondent/ Petitioner but a foundational matter and cannot be cured by an amendment.

Requirements of Service.

25. Rule 5 of the Petition Rules is the starting point, it requires a petitioner to file evidence of service with the Court.
    • “Filing of Petition
    • 5. (1) The presentation of a petition shall be made by filing it with the Registrar, with the original plus one copy and enough copies for service on each respondent and evidence of service in accordance with Rule 19.” (Emphasis added).
26. Rules 16 and 19 mandate personal service within 14 days of filing. Rule 16 provides as follows:
    • “Time for service
    • 16. The time for serving the petition upon the respondent and for giving notice of the nature of the security shall be 14 days inclusive of the day of filing.” (Emphasis added).
27. Rule 19 provides:
    • “Ordinary service or substituted service of petition
    • 19. (1) Every petition, notice of the nature of the security and notice of the first directions hearing issued under Rule 25, shall be served personally on each and every respondent by the petitioner.” (Emphasis added).
28. It is important to note that proof of personal service had to be provided. In this case where it is challenged, it is vital that this is established.

The Requirements for Personal Service.

29. While the Petition Rules do not define “personal service”, Rule 50 allows for the application of the Solomon Islands Courts (Civil Procedure) Rules 2007, (“the Civil Procedure Rules”) where the Petition Rules are silent. Rule 50 states:
    • “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.”
30. Accordingly Rule 6.29 of the Civil Procedure Rules defines “personal service” as follows:
    • “What is personal service
    • 6.29 A document is served personally on an individual:
      • (a) by giving a copy of it to the individual; or
      • (b) if the individual does not accept the document, by putting it down in the person's presence and telling the person what it is.”

Lack of Evidence of Personal Service.

31. Despite reviewing the Court file, I found no evidence that personal service was effected within the legally mandated timeframe.
32. The only evidence presented, a sworn statement of George Leamana, filed on the 27 August 2024, purporting to provide proof of personal service is inadmissible as it contains hearsay material.
33. As a result, there is no valid proof of personal service on the First Respondent.

The Requirements of Evidence of Service to be provided – Rule 5(1) of the Electoral Act Petition Rules 2019.

34. Rule 5(1) explicitly requires evidence of service to be provided alongside the petition:
    • “Filing of Petition
    • 5. (1) The presentation of a petition shall be made by filing it with the Registrar, with the original plus one copy and enough copies for service on each respondent and evidence of service in accordance with Rule 19.” (Emphasis added).
35. Rule 20 more specifically describes the requirements for evidence of service as follows:
    • “Evidence of Service

20. (1) A petitioner must file with the Court, within three days of service being effected or at the time of the pre-trial hearing, whichever is the earlier, a sworn statement made by the person who served the respondent(s) setting out:

• (i) the person’s full name;
• (ii) the time, day and date the document was served;
• (iii) the place of service;
• (iv) the name of the person served and how the person was identified;
• (v) the documents that were served;” (Emphasis added).

36. In this case, no sworn statement of service was filed within the required timeframe or at the pre-trial hearing.

Substituted Service of Petition – Rule 19 of the Electoral Act Petition Rules 2019.

37. There is provision for substituted service under the Petition Rules. Where personal service is not possible, Rule 19 allows for substituted service, provided an application is made within 10 days of the petition's presentation. Rule 19(2)-(6) provides detailed provisions, including requirements for sworn statements and Court satisfaction that reasonable efforts have been made to effect service. Rule 19(2) – (6) provides as follows:

“

(2) If the petitioner is unable to personally serve the respondent or any one of several respondents the petitioner may, not later than ten days after the presentation of the petition, apply to the Court for an order for substituted service of the petition.
(3) An application pursuant to sub-rule (2) hereof shall be supported by a sworn statement showing what has been done to effect personal service of the petition and to cause the petition to come to the knowledge of the respondent.
(4) If the Court J is satisfied that what has been done to cause the petition to come to the knowledge of the respondent, is sufficient to bring the petition to the knowledge of the respondent, the Court may order that what has been done be deemed to be sufficient service of the petition.
(5) If the Court is satisfied that all reasonable efforts made to effect service upon the respondent have not been successful an order for substituted service may be made:

• (a) in the manner authorised by the Rules of the High Court; and/or
• (b) authorising service be effected by posting a notice upon the notice board of the court.

(6) Service approved pursuant to sub-rule (4) or service effected in accordance with an order for substituted service pursuant to sub-rule (5) hereof shall be taken as personal service.” (Emphasis added).

38. It is clear no application for substituted service was made within the stipulated timeframe, nor were any efforts demonstrated to meet this requirement. I am satisfied both personal and substituted service requirements under the Petition Rules have not been satisfied, and there is no valid evidence of service on record.

Other Grounds Relied on for the Strike Out Application.

39. These can be dealt with briefly. The failure to cite the correct legal basis (that is the error in stating the correct sections) for the Petition in my respectful view is not fatal and may be cured by amendment. However, that is not relevant in the light of the finding of defective service.
40. For the rest of the grounds, on the issues of corrupt and illegal practices, and allegations of fraudulent voting, it is not necessary to deal with those matters also as the Petition is invalid due to defective service.

Decision

41. The Court finds that the Petitioner failed to effect proper service on the First Respondent in accordance with the Petition Rules.
42. This defect is fatal and cannot be cured by amendment. Rule 49, which addresses procedural informality, does not apply to fundamental defects.
43. Accordingly, the Petition is dismissed with costs to the Applicant and the Second and Third Respondents.

ORDERS OF THE COURT:

(1) The Application for Strike Out of this Petition is granted herewith.
(2) Grant costs in favour of the First Respondent, Second and Third Respondents, to be taxed if not agreed.
(3) Direct that a Certificate of this Court’s Order for dismissal of this Petition confirming that the Applicant/ First Respondent is the duly elected Member of Parliament for the Central Kwara’ae Constituency, be issued to:

• (i) the Electoral Commission,
• (ii) His Excellency the Governor-General of Solomon Islands, and
• (iii) the Speaker of Parliament.

The Court.

^[1] Civil Case (EP) No. 176 of 2024, 14 October 2024