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Ene v Hayward [2025] SBHC 52; HCSI-CC 201 of 2024 (28 March 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 201 of 2024

BETWEEN

EDDIE ENE
Petitioner

AND:

LAWRENCE HAYWARD
Respondent

Date of Hearing: 28 October 2024
Date of Ruling: 28 March 2025

Mr Marvin Sanga for the Petitioner
Mr John Taupongi for the Respondent

Pitakaka; PJ

RULING ON APPLICATION TO STRIKE OUT PETITIONER

1. This ruling addresses an application by the Applicant/Respondent, Lawrence Haywood, under Regulation 86(1) (b) of the Provincial Assemblies and Honiara City Council Election Regulations 2024, seeking to strike out the election petition filed by Edie Ene, the Respondent/Petitioner, on 30 May 2024.
2. The petition challenges the validity of the Applicant/Respondent’s election as the Provincial Assembly member for Samasodu Ward 16, Isabel Province, asserting that he was not lawfully elected due to illegal practices of bribery.
3. The Applicant/Respondent advances the following grounds for striking out the petition:
   • (a) The election petition was filed under the wrong law or fails to clearly specify the relevant provision, a fundamental error that renders it legally baseless and justifies its dismissal.
   • (b) The Respondent argues that the pleadings are so poorly drafted that they fail to establish a clear legal basis for relief.
   • (c) The Respondent further maintains that, even if the petition were filed under the correct law, it relies on actions allegedly taken by the Respondent that, if proven, would constitute the exercise of constitutional rights and could not, under any circumstances, amount to bribery as defined in the Provincial Assemblies and Honiara City Council Election Regulations 2024.
4. The Respondent rely on the sworn statement of Hon. Lawrence Hayward filed on 3 July, 2024 to support the application.
5. The Petitioner rely on sworn statements of the witnesses in support of the Petition filed on 30 May 2024 and the sworn statement of the Petitioner, Eddie filed on 10 July 2024 in response to the application to strike out.
6. On 4 September 2024 the Petitioner filed an application to amend the petition.
7. The Petitioner rely on the sworn statement of Eddie Ene filed on 4 September 2024 to support the application to amend petition.
8. The Respondent did not file any sworn statement in reply to the sworn statement of the Petitioner in support of the application to amend petition and submit that there no issues of fact or evidence to respond to.
9. The Respondent assert that the application to amend the petition was in response the defects of pleading which is the subject of the strike out application. Respondent also assert that the Leave Application filed on September 4, 2024 is defective because it was brought before the court under the wrong rule therefore there is no valid application for leave to amend the Petition before this Court to consider.
10. The court determined that it will deal with the application for strike out first. If the court finds that the application to strike is made out then there is no need to determine the application to amend the petition.

Issues for Determination

11. The primary issue before this Court is whether the election petition should be dismissed on the grounds that:
    1. It has been brought under the wrong laws or lacks clarity as to the specific provision under which it has been filed;
    2. Even if brought under the correct law, is based on actions allegedly taken by the Respondent which, if true, would have been in the exercise of constitutional rights and could never amount to bribery as envisaged in the Provincial Assemblies and Honiara City Council Election Regulation 2024; and
    100. whether amendment should be allowed.

Legal Framework

12. The court determines that the following laws and legal principles are applicable in resolving the application before it.

Jurisdiction of the court to dismiss petition

13. The Provincial Assemblies and Honiara City Council Election Regulation 2024 governs election conduct of Provincial Assemblies and Honiara City Council Election.
14. Section 86(1)(b) of the Provincial Assembly and Honiara City Council Election Regulations 2024 empowers the court to dismiss an election petition without a hearing where:
    1. The petition is frivolous or vexatious; or
    2. The petition does not disclose sufficient grounds to warrant a hearing.
15. Section 86(4) of the Provincial Assemblies and Honiara City Council Election Regulations 2024 grants the Chief Justice the authority to, subject to these regulations, establish rules of practice and procedure for petitions under this part.
16. Section 87 of the Provincial Assemblies and Honiara City Council Election Regulations 2024 stipulates that, until the rules are established under Regulation 86 regarding the questioning of elections held under these regulations, the Local Government (Election Petition) Rules will apply. These rules shall be interpreted with any necessary modifications, adaptations, qualifications, and exceptions to ensure conformity with these regulations.

Definition of Election Petition

17. Section 85(1) of the Provincial Assemblies and Honiara City Council Election Regulations 2024 defines an election petition as a formal complaint to the Court alleging that a Provincial Assembly or Honiara City Council member was not validly elected.

Who can file election petition

18. Section 85(2) of the Provincial Assemblies and Honiara City Council Election Regulations 2024 grants the right to file an election petition to:
    • (a) Any elector in the ward to which the petition relates; and
    • (b) Any candidate for the election in that ward.

Time for filing of election Petition

19. Section 85(3) of the Provincial Assemblies and Honiara City Council Election Regulations 2024 mandates that an election petition must be filed within 30 days of the election results being published under Regulation 62(b).
20. Section 62 of the Provincial Assemblies and Honiara City Council Election Regulations 2024 mandates that the CEO must:
    • (a) Forward a copy of the notice received from the returning officer under Regulation (b) to the respective Minister; and
    • (b) Publish the notice in the Gazette as soon as practicable.
21. Section 3 of the Provincial Assemblies and Honiara City Council Election Regulations 2024 defines “CEO” as the Chief Electoral Officer appointed under Section 57A of the Constitution.

Applicable common law principles

22. Jurisdictional errors are fundamental and cannot be cured by subsequent amendments after the statutory period has lapsed.
23. The House of Lords’ decisions in Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147 and London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR establish that jurisdictional defects render the proceedings void ab initio.

Application of Law to Facts
The Applicant/Respondent’s position

24. The Applicant/Respondent asserts that the election petition must be struck out for the following reasons:
    • (a) The petition fails to cite the correct written law or is so poorly pleaded that it lacks clarity on the specific legal provision invoked.
    • (b) The petition’s ambiguity renders it legally defective, failing to meet the threshold for judicial consideration.
    • (c) Even if brought under the correct law, the petition relies on allegations that, if true, would constitute the Respondent’s exercise of constitutional rights and therefore cannot amount to bribery under the Provincial Assemblies and Honiara City Council Election Regulations 2024.
    • (d) Allowing a petition that lacks a clear legal foundation or seeks to criminalize constitutionally protected actions would constitute an abuse of the court’s process.

Respondent/Petitioner’s Opposition to Dismissal

25. The Respondent/Petitioner argues that, despite any deficiencies in the pleadings, the petition raises substantive legal and factual issues that warrant judicial determination. The Respondent maintains that the petition is neither frivolous nor vexatious and that dismissing it at this stage would unjustly deny access to justice. Any defects in the pleadings, the Respondent contends, can be addressed through amendment rather than dismissal.

Court’s Analysis and Determination
Court’s Approach

26. First, the court will determine whether the petition correctly cites the laws governing electoral offenses, specifically assessing whether it references the appropriate legal provisions. If the court finds this deficiency established, the petition is void ab initio, as no valid petition would be before the court. In that case, addressing the remaining grounds for striking out the petition would be unnecessary.
27. Second, the court will scrutinize the pleading deficiencies. If the petition lacks clarity or fails to present a legal basis for the claims, the court may find it defective and dismiss it.
28. Third, the court will assess whether the actions of the Respondent, if proven, could amount to bribery under the applicable election laws, ensuring that the petition does not criminalize actions protected by the constitution.

Issue: Whether the Petition was filed under the correct law lacks clarity as to the specific provision under which it has been filed
Rule:

29. Under Regulation 86(1) (b) of the Provincial Assemblies and Honiara City Council Election Regulations 2024, the Court may dismiss an election petition without a hearing if it is frivolous, vexatious, or lacks sufficient grounds to warrant a hearing. The law governing provincial election petitions is the 2024 Combined Election Regulations and the Local Government (Election Petition) Rules, pending new procedural rules.

Application:

30. The Petition at paragraph 19 pleads “your Petitioner states that in relation to the said election there were serious breaches to the Provincial Government Act 1997, the Electoral Act 2028 and the Provincial Assemblies and Honiara City Council Election Act 2024”. This incorrectly cites multiple laws, including the Electoral Act 2018, which applies only to National Parliament elections, not provincial elections. The pleadings also did not specify the provisions allegedly violated of the laws pleaded. This sort of defect amounts to a jurisdictional defect because it is of critical importance of basing election petitions on current and applicable laws. Reliance on no applicable laws or repealed statute is a fundamental error that can lead to dismissal due to lack of jurisdiction. (see The House of Lords’ decisions in Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147 and London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR which establish that jurisdictional defects render the proceedings void ab initio. See also Mathew Cooper Wale v. Governor General and ors^l[1]

Additionally, the Petitioner used forms prescribed under the National Petition Rules, such as Form 8 and Form 9, which apply exclusively to National Parliament election petitions. The proper procedure, as required by the Local Government (Election Petition) Rules, was completely disregarded. The choice of incorrect laws and procedural documents creates ambiguity, making it impossible to determine under which legal framework the petition was based.

31. The Court finds that defects identified in the Petition which the subject of the striking out application are in substance the subject of the Petitioner’s application to amend the petition on 4 September 2024.
32. The Court cannot engage in a substantive examination of the issues raised by the Petitioner when the petition itself is brought under an improper legal foundation.
33. An election petition that pleads multiple laws without specifying the provisions allegedly violated amounts to a jurisdictional defect. Election petitions must to be precise and specific in identifying the legal basis of the claim, including the exact provisions breached. Failure to do so can render the petition defective, as it may not adequately inform the respondent of the case they must answer, leading to dismissal for lack of jurisdiction.

Conclusion:

Having considered the arguments and legal framework, the Court finds as follows:

34. On the issue of whether the petition fails to properly cite or rely on the correct laws the court determines that filing an election petition under the wrong law or failing to clearly specify the relevant provision creates a fundamental defect that renders the petition without legal basis, as outlined in Section 85(3) of the Provincial Assemblies and Honiara City Council Election Regulations 2024. This section mandates that an election petition must be filed within 30 days of the election results being published under Regulation 62(b).
35. The court further determines that such a fundamental defect undermines the petition’s legal foundation, making it legally baseless. The petition lacks the necessary legal framework to support its claims, rendering it invalid from the outset. Importantly, this fundamental defect cannot be cured after the expiry of the 30-day filing period imposed by Section 85(3). Once this time limit has passed, the petition can no longer be amended to correct its legal deficiencies, as the court will no longer have jurisdiction to hear it. The petition must be struck out, as the court cannot exercise jurisdiction over a petition that has no legal basis when it was filed on 30 May 2024.
36. Furthermore, when the court determines that a petition has been filed under the wrong law or fails to clearly specify the provisions of the law alleged to have been violated, these deficiencies render the petition frivolous and vexatious. Such vagueness, ambiguity, or failure to state a valid legal claim leaves the petition without sufficient grounds to justify a trial.
37. Since the court has already determined that the petition must be struck out due to being filed under the wrong law or failing to clearly specify the laws relied upon, it is unnecessary for the court to address the other issues raised in the application to strike out.
38. Given the Court’s determination that amendment is not possible in this matter, it is unnecessary to consider the application for Amendment of the Petition filed on 4 September 2024. The issue has already been resolved, rendering any further deliberation redundant.

Final Order:

1. The Election Petition filed on 27 May 2024 is struck out.
2. Costs are awarded to the Respondents to be taxed if not agreed
3. I Direct that a certificate be issued to the Electoral Commission and Minister of the Provincial Government, confirming the validity of the election of Hon. Lawrence Hayward as the duly elected candidate for the Provincial Assembly member for Samasodu Ward 16, Isabel Province

DATED this 28th of March, 2025.
By the Court
Hon. Justice Michael Collin Pitakaka
Puisne Judge of the High Court

^[1] SBHC 43; HCSI-CC 244 of 2019 (24/5/19) Palmer CJ