Tokataake v Attorney-General [2003] KIHC 45; Civil Case 06 of 2002 (8 April 2003)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

HIGH COURT CIVIL CASE 6 OF 2002

EX-PARTE APPLICATION

BETWEEN:

WILLIE TOKATAAKE OF ABEMAMA
ON HIS OWN BEHALF AND
REPRESENTATIVE OF NINE OTHER
MEMBERS OF THE CABINET OF THE
GOVERNMENT OF THE SEVENTH
PARLIAMENT
APPLICANT

AND:

THE ATTORNEY GENERAL FOR
TAOMATI IUTA OF SOUTH
TARAWA AS SPEAKER OF THE
SEVENTH PARLIAMENT
1st RESPONDENT

AND:

ATTORNEY GENERAL FOR BOUTU
BIO OF SOUTH TARAWA AS
CHIEF ELECTORAL COMMISSIONER
AND THE ELECTORAL
COMMISSION
2nd RESPONDENT

FOR THE APPLICANT: MR D JAMES (JACQUELINE M HUSTON AS AGENT)

DATE OF HEARING: 8 APRIL 2003

JUDGMENT
(Ex Tempore)

This is an application by 10 members of the former Government "for an Order for Leave to Commence and (sic) Action by way of Originating Notice of Application for mandamus and prohibition against the proposed First and Second Respondents; on the grounds:

1. That the High Court Rules Order 61, rule 2;
   
2. The Applicants are persons whose rights have been affected under the Constitution section 88(1);
   
3. The Honourable Speaker of Parliament apparently apprehends that a vote that was taken 27 March 2003 effected a dissolution of Parliament, and as a result the electoral Commission and the Chief Electoral Commissioner are proceeding to institute a general election, and as a result the Applicants seats in Parliament are vacated, and they are no longer members of the executive of the Government of the Seventh Parliament;
   
4. The division in Parliament of 27 March 2003, in regards to a matter of confidence showed 21 votes rejecting the matter; this was sufficient to defeat the Bill, but not sufficient under section 78(1) to produce a dissolution as 21 votes was not a majority of all the members of the Maneaba.
   

Ms Huston delivered the papers to my Chambers some time before making the Application in open Court. This gave me the opportunity to consider the matter in advance of hearing her.

There are three reasons why I refuse leave:

1. (It is now too late to give an effective and practical remedy. It is all but 12 days since the vote which caused the Speaker to declare Parliament dissolved. Since then life moved on: a fresh General Election has been called and the electoral process begun: the Council of State has, pursuant to the Constitution, assumed the administration of Government.
   

I appreciate the difficulties which the Applicants had in taking advice and making this Application but 12 days is a long time. Perhaps more to the point is that it would be several weeks before the Court could hear argument. I am to be out of the country from the day after tomorrow, 10th April until the 22nd. Mr David James has been retained to argue on behalf of the Applicants. Even if he were able to come from New Zealand to Tarawa at short notice, it would be some time before the matter could be argued. In the meantime the country would be in a state of uncertainty. People would not know where they stood. It was because of the need for certainty that I heard immediately it was made, on the day following the dissolution, the application for interpretation by the Attorney General and gave an answer. For the same reason I am giving immediately this decision to refuse leave.

2. The fundamental question raised in the application is the same as I had to answer on the Attorney General's application. I gave an answer. The matter is res judicata. It cannot be litigated again. I may add that the more I have thought about it, the more certain I am that I gave the correct answer.
   
3. In paragraph 6 of the statement in support of the Application it is suggested that 5.53 of the Constitution was not brought to the attention of the Court. Perhaps it was not but I was aware of it when I gave my Answer. The statement most helpfully sets out at some length the argument which counsel would develop at a hearing. The argument, ingenious as it is, is unconvincing. It would be most unlikely to succeed.
   

Leave is refused.

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE