The burden of proof in this
case lies with the Petitioner from beginning to end. It is for him to
convince this Court
on the balance of probabilities that the Respondent was
never registered as a voter in the Provincial Assembly Electors Register
(see Tegavota v Bennett (1983) SILR 34 at 36, which cited
with approval the test adopted in In re Moresby North Parliamentary
Election No. 2 (1977) P.N.G.L.R 448).
p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
On one hane Respondent had
produced fairly clear evidence, in the form of Exhibit 3, that the pthe person
registered as
Harohau in the Muki Registration Area was in fact the
Respondent. It is for the Petitioner therefore to demonstrate to this
Court
by evidence, on the balance of probabilities, that this vital evidence is
incorrect, or false and not to be relied
on. Unfortunately the Petitioner
had failed to produce evidence which would dislodge this vital piece of
evidence. Paul
Sara Lau, the Returning Officer for Malaita, was never
summoned to give evidence and be subject to cross-examination on his
evidence contained in that letter of 28th May 1998. As pointed
out earlier, his evidence had gone in without any challenge. Neither the
evidence of the Petitioner
or his two witnesses had produced anything that
would cast doubt on that piece of evidence. The Petitioner assumed it was
Jeffrey Harohau. Jeffrey however gave unequivocal evidence that it could not
and was not him. If there was to be any other
suggestion, it came from the
evidence of the third witness James Kevin, that there was a possibility his
name had been
registered all the same by someone in his village.
Unfortunately that was more hearsay evidence than anything else and
therefore inadmissible. Even if it was to be admitted, I do not hesitate to
find that it cannot be relied on. In essence
the Petitioner has failed to
convince me on the balance of probabilities that the person registered as
Harohau under
the Muki Registration Area could not have been the Respondent.
<
CONCLUSION ON GROUND 1
The simple conclusion to be
reached accordingly in re of ground 1 is that the burden of proof with
respectspect had not
been discharged to my satisfaction. Ground 1 therefore must
be dismissed.
(II) WHETHER THE RESPONDENT WAS
A RESIDENT OF MALAITA PROVINCE OR NOT
econd ground relied on by
the Petitioner turns on the question whether the Respondentndent was a
resident of Malaita Province within section 15(1)(h) of the Provincial
Government Act or not. The burden of proof lies with the Petitioner to prove
on the balance of probabilities that the Respondent was not a
resident of
Malaita Province.
The evidence of the Petitioner
is summarised as follows. He does not dispuhat the home village of thef the
Respondent
is Manawai Village. He states however the Respondent moved to
Honiara sometime back, (about ten years ago) and has since been
residing in
Honiara, although he concedes the Respondent has a house at Manawai which is
occupied by his parents. He
also concedes the Respondent does make visits to
his home village now and then, stopping over for one to three weeks on each
visit; I guess like many other Solomon Islanders, who live and reside in
Honiara for purposes of work but always regard
their home villages as their
home base. The crucial question this raises is whether such a person with
the particular
circumstances of the Respondent can be regarded as a resident
of Malaita Province for the purposes of section 15(1)(h) of the
Provincial
Government Act or not. The issue this raises in my respectful view is quite
important for future and potential candidates of Provincial elections.
THE MG OF RESIDENT
The meaning of the word
�resident� in the context of electoral laws has been addressed in this
jurisdiction in a number
of cases already. In Tegavota -v- Bennett
(1983) SILR 34, ("Tegavota�s Case") Daly CJ dealt with the meaning of
�resident� as used in section 7(c) of
the Local Government Act. Section 2 of
the Act defined the term �a person resident� as a person
ordinarily residing in such area. The issue his Lordship had to consider
accordingly was whether the Respondent (Bennett) was ordinarily resident in
Ward
3, in the Rove/Lengakiki area. It was argued by the Petitioner (Tegavota),
that the Respondent was not ordinarily resident
within the said ward. The
Court held this was a question of fact. In its assessment of the evidence,
the Court found
there was sufficient evidence before it to show that the
Respondent was ordinarily resident in Ward 3 and dismissed the petition.
The second case which also
considered the meaning of the word �resident� in the context of provincial
elections was the
recent case of John Sogabule -v- Sonny Maezama and S.
C. Tahili (unreported) Civil Case Number 383 of 1995 judgement
delivered on 19th July 1996. In that case the learned Chief
Justice Sir Muria actually dealt with the question what the term �a
resident of the province� meant, as provided for in section 16(1)(h) of
the Provincial Government (Amendment) Act 1986.
His Lordship described the
requirements for membershithe Provincial Assembly under the said Act
as a �two �two pronged-criteria�.
The first criteria required an intending
candidate to establish that he was ordinarily resident in the Province
pursuant to section 15(c) of the Provincial Government (Amendment) Act 1986.
The second criteria required he show he was a resident of the Province,
which his Lordship interpreted as implying actual residence in the
province and �assuming some degree of permanent personal presence
in the Province�. His Lordship held the requirement of ordinarily
resident may not be sufficient to satisfy the test of being a resident of
the Province under the 1986 Amendment.
Under the new Provi
Government Act of 1997, the qualification provision of being ordinarily
resideesident in the Province
was omitted. This was replaced by the requirement
for registration in the Provincial Assembly Electors Register. The provision
that an intending candidate shall be disqualified if he/she is not a
resident of the Province however remained.
Thue that now arises is
whether in the light of the new legislation it would still be a be appropriate to
maintain the
construction of the phrase a resident of the Province as
equivalent to being a resident in the Province with some permanent
physical presence. It seems to me that a person can still be a resident of
the province and yet not
be actually resident in the province. There are
many Solomon Islanders who are not resident in their home provinces for a
variety of reasons. Some because of work commitments, business, or because
their children go to school in Honiara and
so do not reside in their home
provinces. But if one were to ask them which province they come from, they
would not hesitate
to say �I am from this province or that province�.
In other words, they regard themselves as being residents of their home
provinces regardless of the fact they do not physically
reside there. Many
have been away from their home provinces for many years but still regard it
as their permanent place
of residence; where they have their customary lands
and where some, like the Respondent in this case had built a dwelling-house
and allowed their parents to live in them whilst they had been away. If
anything happened, they could always go back
to their villages in their home
province and no one would be able to turn them away, either in law or
custom. Also as
confirmed by the Petitioner and his witnesses in evidence,
they concede the Respondent comes from Manawai Village and is entitled
not
only to be registered in the Provincial Assembly Electors Register, but to
reside in Manawai Village as a permanent
resident of that village. His
rights of inheritance in land and custom derive from and originate in that
village. He
had moved to Honiara largely for purposes of running his
business. Nonetheless he still made visits to his home now and then.
Can it
be said that he is not a resident of Malaita Province for purposes of
section 15(1)(h) of the Provincial Government Act 1997?
Under EngLaw, the
Representation of the People Act 1918, a person�s residence was to be
determined in the light of
his residence on a particular day of the
qualifying period. His actual residence thereby was his home (Barlow v.
Smith (1892) 9 TLR 57 at 58) or at least where he or she has a sleeping
apartment or shares one (R v. Exeter Corporation, Wescomb�s Case
(1868) LR4 QB 110). The test of residence adopted was that on the qualifying
date there was a considerable degree of
permanence of occupation (Fox v.
Stirk [1970] 2 QB 2 QB 463 at 475). This was essentially the same test
adopted by Daly C.J. in Tegavota�s Case at page 39 and the same test adopted
by Muna C.J. in John Sogabule�s Case at page 6 and 7; that is, an element of
continuity and permanence are crucial.
The doctrine of construc
residence grew out of the concept that a person may be resident at an
address eess even though
he is temporarily absent from it (Taylor v St Mary
Abbott Overseers [1870] UKLawRpCP 68; (1870) LR 6 CP 309). It was the legal term for the
notion that �a man may have more than one residence at a time. He may
corporeally be residing at one place, and yet have a residence at
another.
He may have a place of residence to which be is free to go during the whole
period.� (Durant v. Carter [1873] UKLawRpCP 71; (1873) L.R. 9 C.P. 261 per Keating J.
at page 266).
Frost C.J. considered in his
judgment a n of cases in which this doctrine had been applied. In
The Queen v The Midland Licensing, Court [1959] S.A.S.R 229, it was
held a man who spends his life at sea is considered to be resident at the
house where his wife and family live
ashore. In Fox v. Stirk (ibid),
Lord Denning M.R. held that a man may have two residences, a flat in the
city and a house in the country, and
be resident in both. In Powell v.
Guest [1864] EngR 788; (1864) 144 E.R. 357 at pp. 370-371, Erle C.J. explained in some
detail the application of the doctrine as follows:
�I ent subscribe to the
doctrine so clearly laid down in Elin Elliot on Registration, 2nd
edit. 204, where the learned author says that, �in order to constitute
residence, a party must possess at the least a
sleeping apartment, but that
an uninterrupted abiding at such dwelling is not requisite.� �Absence� he
continues, �no
matter how long, if there be the liberty of returning at any
time, and no abandonment of the intention to return whenever it
may suit the
party�s pleasure or convenience so to do, will not prevent a constructive
legal residence. But, if he has
debarred himself of the liberty of returning
to such dwelling, by letting it for a period, however short, or has
abandoned
his intention of returning, he cannot any longer be said to have
even a legal residence there�. The learned author says he
loses his
character of resident �if he has debarred himself of the liberty of
returning to such dwelling,� and he gives
two examples, viz. letting the
house, or abandoning the intention of returning.�
Frost C.J. then concluded
the doctrine was applicable in construing section 10on 103(2) of the
Constitution. I quote:
lass="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
�It is plain that
constructive residence implies an available residence, from wrom which the
claimant has not debarred
himself from the liberty of returning.
There is no reto
suppose that the doctrine is not suitable or approappropriate to the
circumstances of Papua New Guinea,
and accordingly it is applicable in
determining the operation of the residential qualifications under the
Constitution
s. 103.�
Frost C.J. held in that case
that the house retained by the Respondent could not have amounted to a house
of residence
because it was clear on the evidence it had been retained
primarily as an investment, even though the Respondent had intended
to move
into it on completion of his employment with the Defence Force. The learned
Chief justice concluded it did not
amount to constructive residence and
allowed the petition.
In Tegavota�s Case, Daly C
made a passing remark on the application of this doctrine:
�In deference to counsel argument let me add one word about constructive residensidence. As I find that
the Respondent was
factually resident in Honiara in the election period it
is unnecessary
for me to consider the doctrine in detail in this case. It can only be
material when a person claims that
he is resident in law at a relevant time
in a place in which he is not factually in residence at the relevant time.
However
it could well be found to be a most useful doctrine in
Solomon Islands as it was
found to be in Papua New Guinea (see the Moresby Case at p. 454). But
consideration of the doctrine
must wait for another case.�
Since Tegavota�s Case, the
doctrine of constructive residence appears not to have been raised and
therefore considered
by this Court. It was not raised in this case by
learned Counsels. Nevertheless, in my respectful view, it is not only a most
useful doctrine to be applied but relevant and can be adapted to the context
in Solomon Islands, where the culture and
society is identified by
membership of a tribe and tribal origins which have direct link with
ownership of land in custom.
In my respectful view, for purposes of
determining whether a person is a resident of a particular province,
it is sufficient if it is shown a person has a fixed place of abode in the
province, that he/she regards as his permanent
place of dwelling and that
his roots can be traced to the said place. Also that he is a member of a
tribe indigenous
to the said province and that he himself has a recognised
dwelling place in that village. This can be evidenced by the existence
of a
dwelling house or related activities within the said province. This is a
question of fact and will vary from case
to case. In my respectful view, the
circumstances surrounding the case of the Respondent fall on all fours
within that
category. It would have been different if the words used were �resident
in the Province�, which in my respectful view would have imported
elements of actual and physical permanent presence in the said province.
In this case, it has never been
denied by the Petitioner and all his witneshat the Respondent was a
a
member of the
same tribe which resided in Manawai Village and had identical
rights of residency and occupancy. Secondly, it was conceded
by the
Petitioner that the Respondent had a dwelling house in the said village but
that it was occupied by his parents.
In Solomon Islands culture and society,
it is common to have ones house being occupied by ones parents whilst one
was
away in another part of the country; in this instance in Honiara. The
fact the house was occupied by the parents does not debar
him from being
treated as a resident of the province. He has liberty to return and reside
at his home village at any
time. This I find to be a fact in evidence before
this Court. In my respectful view, that is sufficient to satisfy the test
of
being a resident of Malaita Province. Those facts entail permanency of
residency in Malaita Province in the Respondent�s
case. To that extent it is
for the Petitioner to show that the Respondent is not a resident of Malaita
Province on the
balance of probabilities. With respect, he has failed to do
that.
But even if that might not be
the case, I am not satisfied the Petitioner has sufficiently proven on the
balance of probabilities
that the Respondent had not taken steps to have
that disqualification removed. The evidence adduced showed that after
winning the elections, the Respondent was appointed as Deputy Premier of
Malaita Province. By virtue of his new appointment,
he would have been
required to be based in the provincial capital Auki. When he was asked
whether he was aware of the
movements of the Respondent after the elections,
the Petitioner could only relate his observations as to the movements of the
Respondent to his village, but non-committed about the Respondents movements
in the provincial capital. He did concede
though that if there was any
movement it occurred more between Auki and Honiara. In my respectful view,
that is not sufficient
to dislodge the burden of proof vested on the
Petitioner. Mr. Ashley had correctly pointed out in his submissions that it
was for the Petitioner to show that the disqualification had not been
removed within thirty days after the elections.
All that the Respondent had
to show is to point to some evidence which showed that the disqualification
had been removed.
In the context of this case, whilst I note the Respondent
had not appeared and therefore had not given evidence, there was
evidence
before me which showed that the disqualification could have been removed by
virtue of the appointment of the
Respondent as Deputy Premier of Malaita. It
was then for the Petitioner to show on the balance of probabilities that the
appointment of the Respondent would not and did not actually make any
difference. Unfortunately that had not been done
to my satisfaction.
Accordingly the second ground must also be dismissed.
ORDERS OF THE COURT:
1. DISMISS PET WITH
COSTS.
/p>
2. CERTIFY TO THESTER
FOR PROVINCIAL GIAL GOVERNMENT AND RURAL DEVELOPMENT THAT BENJAMIN HAROHAU HAD
BEEN DULY RETURNED
AS A MEMBER FOR WARD 19, EAST ARE ARE, MALAITA PROVINCE.
THE COURT
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