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Kabini v Abana [2010] SBHC 79; HCSI-CC 346 of 2010 (18 November 2010)

HIGH COURT OF SOLOMON ISLANDS

Civil Jurisdiction- CC: 346 of 2010

BETWEEN:

FELIX LAUMAE TALOINAO KABINI
Petitioner

AND:

STEVE WILLIAM ABANA
First Respondent

AND

RETURNING OFFICER FOR FATALEKA
Second Respondent

AND

THE ELECTORAL COMMISSION
Third Respondent

Date of Hearing: 12 November 2010
Date of Decision: 18 November 2010

Rano W for Petitioner
Radclyffe A for first Respondent
Solicitor General for Second and Third Respondent

Decision on Petition to Strike out Or not

Goldsbrough J:

1. The Petitioner, in the instance of this Election Petition filed 15 September 2010, failed to respond to a request for further and better particulars by the date on which that should have been done. That date was fixed in a directions hearing at which counsel for the petitioner was present. Whilst it is admitted that no response was actually provided, the Petitioner seeks the indulgence of the Court for further time to comply.
   
2. Instead of substantive response to the request for further and better particulars, counsel for the Petitioner wrote to the Attorney General seeking to access to the list of voters for the relevant constituency and ballot papers. That request, instead of responding to the further and better particulars request, gives rise to speculation that the Petitioner does not have information to support the claims that he had made in his Petition.
   
3. For that reason counsel for the 2nd and 3rd respondents goes further in his submissions than suggest a strike out for non-compliance with an order of the Court but that the Petition should be struck out as being frivolous or vexatious.
   
4. The Petitioner submits that there is no power to strike out an Election Petition. He does not qualify that submission in any way and cites in support Rule 40 of the Election Petition Rules and two authorities Anisi v Aumanu[1] and Saemala and Ulufa'alu'[2].
   
5. Rule 40 provides:-

"No proceedings under Part V of the Regulations or under these Rules shall be defeated by any formal objection."
and neither of the two cases cited determine that there can be no strike out of a Petition in circumstances of non-compliance with an order made in the course of the proceedings, indeed the cases actually support that notion that there is a discretion to be exercised, although in those case it appears that the discretion was exercised in favour of not striking out.

6. The submission, therefore, that there is no power to strike out a petition, is without merit and fails. There is a discretion, in dealing with Election Petitions, to mark the failure to comply with an order of the Court in the same way that a Court can mark a failure to comply in any civil proceeding.
   
7. Given that the Court finds that there is a discretion to strike out an Election Petition when there is a failure to comply with a directions order, it is necessary to consider how that discretion should be exercised. In this case the Court will permit the additional fourteen days that the Petitioner seeks to comply with the request.
   
8. On the question of whether the Petition as filed deserves a hearing, as raised by submissions for the 2nd and 3rd respondent I am of the view that whilst those submissions merit consideration, it would be wrong to act on them in dealing with this failure to comply. Counsel for the Petitioner was given only a matter of hours to make submissions on why the Petition should not be struck out, was not served with the submissions of the 2nd and 3rd respondents prior to the hearing, through no fault of anyone it needs to be said, and has not had an opportunity to address them fully. I propose, therefore, not to act on them but the leave those matters to a later date should the respondents seeks to pursue them in a more formal way.
   
9. It goes without saying that if the Petitioner fails to provide the further and better particulars then the Petition will be struck out without further notice being given. I will make directions after hearing from counsel where necessary but otherwise order a response to the request for further and better particulars within fourteen days from today, that is to say by close of business Wednesday 1 December 2010 and will list this matter for a further mention on 9 December 201 at 0930 hrs.
   

Dated this 18th day of November 2010.

GOLDSBROUGH J

^[1] 1998 SBHC 93
^[2] 1998 SBHC 7