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Bishop Tuhenua v Solomon Islands Rugby Union Federation [2005] SBHC 62; HCSI-CC 455 of 2004 (21 April 2005)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 455-04

BISHOP TUHENUA

-V-

SOLOMON ISLANDS RUGBY UNION FEDERATION

High Court of Solomon Islands
(Palmer CJ)

Date of Hearing: 21^st April 2005
Date of Judgement: 21^st April 2005

P. Watts for the Applicant
G. Fa’aitoa for the Respondent

Palmer CJ.: The Applicant commenced this action by Originating Summons filed 6^th October 2004 seeking orders for declaratory relief touching on the interpretation, application and validity of the provisions of the constitution of the Solomon Islands Rugby Union Federation. The Applicant was unsuccessful it seems in retaining his position as President of the Solomon Islands Rugby Union Federation (“the Federation”) in 1998 and thereafter or more accurately I think decided to quit the leadership race. It seems that he blames his inability to return to the top leadership position on anomalies being conducted or applied regarding certain provisions of the constitution of the Federation. Apart from those grievances he has demonstrated no other legal or equitable rights under Order 58 Rule 2 of the High Court (Civil Procedure) Rules, 1964.

The only relevant provision which he could legitimately come to this court for declarations is under Order 58 rule 1. However for any successful application to be brought under that rule, the Applicant is obliged to demonstrate that he has rights under the constitution of the Federation which need to be determined or clarified.

Having now had opportunity to consider the tenure of the Originating Summons filed and the affidavit of Bishop Tuhenua filed in support dated 4^th October 2004 I am not satisfied it has been amply demonstrated by the Applicant that he has a sufficient interest under the constitution which would warrant invoking the jurisdiction of this court in this matter.

Whilst it is conceded some of the matters raised in the originating summons relate to irregularities in the conduct of elections, allegations of compliance and or non-compliance with certain provisions in the constitution, those are matters which properly and legitimately should have been raised before the Federation itself. There is no suggestion or evidence before me to suggest that these matters had ever been raised and addressed by the Federation. This court will not be dragged into matters where a better and more suitable forum had actually been established to address such concerns.

I have listened to Mr. Fa’aitoa’s submissions regarding the appropriateness of this court to hear the Applicant’s concerns and could not agree more with his submissions that there are other bodies which have been set up to address such concerns as those raised before this court. To that extent the application jumps the gun so to speak without exhausting all other legitimate avenues. One such avenue is provided under section 7 of the Solomon Islands National Sports Council Act [cap. 166] (“the Council”) which allows the Council to inquire into and investigate the activities of any National Association of Sports. It is not in issue that the Federation is a member of that Council.

To that extent the Applicant does not have locus and the Originating Summons should be struck out as disclosing no reasonable cause of action.

But even if the Applicant should somehow be given locus, the application for restraining orders cannot be justified on the material before me on the following grounds.

First, it is incumbent on the Applicant to demonstrate on the material before this court that there are serious issues to be tried. I have carefully assessed the matters sought for determination in the Originating Summons which require this court’s consideration but cannot be satisfied that any such issues had been raised. The words of his Lordship Brown J. in John Keniapisia and Robert Hite v. Solomon Islands Football Federation^[1] in describing the status of the rules in that case are so apt to this case:

“...the source of power flowing, not from any “public law” ... but out of a body of rules adopted and called the “Solomon Islands Football Federation Constitution” by a representative body of members .... The “rules”, embodied in the constitution affect only those wishing to be so bound ....”

The constitution of the Federation applies only to those wishing to be bound. If the Applicant wishes to be heard then it is paramount that he ensures he retains membership of the Federation to agitate his views and concerns within that body and to be bound by the rules governing its existence. This court will not interfere with the legitimate activities of the Federation and matters done within its sole discretion. As pointed out where the supervisory role is provided for by legislation, in this case, the Council set up by legislation, this court will not take carriage without justifying why the proper avenues for redress have not been exhausted. For that reason as well, it cannot be justified that serious issues lie before this court for its determination.

Secondly, it has not been satisfactorily established as well that the Applicant has any locus to represent any of the other bodies included in this representative action. There is no indication that he is a member of any of those associations or that he has any vested interest in them or that any of them had formally authorised him to take out such representative action apart from a very generalised and ambiguous statement that what is being done is in their interests, let alone the fact that he has also not established his interest in this application. They can pursue their separate actions against the Federation if they so desire.

Thirdly, before any interlocutory orders are granted it is incumbent upon the Applicant to provide an undertaking for damages. That has not been done in this case even after Mr. Fa’aitoa had expressly pointed out in court that a lot of expenses had been spent in organising and facilitating the meeting of the Federation this afternoon and to delay it further will incur further costs. The Applicant has simply not responded to this concern and failed to provide an undertaking. If the Respondent wins his case at the end of the day, there is no guarantee that the Applicant will pay all the damages incurred as a result of granting a restraining order. The application for restraining orders therefore cannot be granted on that basis.

Fourthly, the issues sought to be raised before this court go back to events occurring some six to seven years even as far back as 1998. Extensive and inordinate delay has occurred and the principle of laches must be applied especially where no justifiable reasons have been given, a fortiori, where this matter has been outstanding since the beginning of this year. Equity aids the vigilant and not the indolent. A court of equity has always refused its aid to stale demands where a party has slept on his rights and acquiesced for a great length of time.

Fifthly, in the absence of an undertaking for damages, and if the Applicant were to succeed at trial, whether he would be adequately compensated by an award of damages for the loss (if any) sustained as a result of the elections being allowed to proceed today. In this instance, the resounding answer must be yes. But even at the outset, it is not clear whether it will make any difference if the elections are allowed to proceed or not in view of the fact that the issues being raised are more or less stale and whether the Applicant will incur any losses or damages at all. I am not satisfied accordingly on the material before me that this is an appropriate case for any restraining order to be issued.

The proper orders of this court would not only be to dismiss the application for restraining orders but to have the Originating Summons struck out for failing to disclose a reasonable cause of action, with costs.

Orders of the Court:

1. Dismiss application for restraining orders.

2. Strike out Originating Summons for want of a reasonable cause of action.

3. The Applicant to pay the costs of the Respondent in this application and all incidental matters thereto, to be taxed if not agreed.

The Court.

ENDNOTES:

[1]. HCSI-CC 102-04 (unreported) at page 2