Re Nori's Application [1989] SBHC 4; [1989] 1 LRC 10 (29 May 1989)

[1989] 1 LRC (Const) 10

HIGH COURT OF SOLOMON ISLANDS

RE: NORI'S APPLICATION

High Court
Ward CJ
23, 24, 29 May 1989

(1) Constitutional law - Head of State - Her Majesty the Queen - Powers - Power of appointment conferred expressly by Constitution - Whether prerogative power - Whether exercise reviewable by courts - Constitution of Solomon Islands, ss 1, 27, 30, 83 and 138.

(2) Constitutional law - Governor General - Appointment - Validity - Disqualifications - Public officer - Whether purported appointment valid - Constitution of Solomon Islands, ss 27, 48 and 49.

(3) Constitutional law - Governor General - Invalid appointment - Acts performed before and after determination of invalidity of appointment - Whether acts invalid - Whether common law doctrine of de facto office applicable - Constitution of Solomon Islands, s 76 and Schedule 3.

The applicant was a Minister of the Government in power throughout 1988 and in June the members of the National Parliament elected L, who had been the Permanent Secretary in the Ministry of Finance, as Governor General. On 7 July Her Majesty the Queen, the Head of State, appointed L as Governor General, pursuant to s 27 (see p 13, post) of the Constitution, and he was formally sworn in. While in office L carried out official functions, for example, the dissolution of Parliament, the proclamation of a general election in February 1989 and, after the election of a new Prime Minister, the appointment of Ministers of the Government. The applicant applied to the High Court challenging the validity of L's appointment under ss 27, 48 and 49 (see p 13, post) on the basis that L was still a public officer, was not on leave of absence without salary, and was thereby disqualified from election; furthermore any purported acts carried out after such appointment were null and void. The Attorney General contended, inter alia, that even if L was unqualified at the relevant time, his appointment by the Head of State was an exercise of prerogative power under s 30 (see p 19, post) of the Constitution, and could not be challenged by the courts.

HELD: Declaration granted that Governor General not validly appointed; declarations refused that Governor General's acts invalid.

(1) The powers of the Head of State in Solomon Islands were defined and covered by the Constitution and were therefore subject to the Constitution, since, it was well established that, where an Act of Parliament covered a matter that was otherwise a prerogative power, the prerogative was subject to that statute and any rules it contained. It was clear that the, power to appoint the Governor General, under s 27, was subject to the person appointed being properly qualified under sub - s (2). Since the High Court had jurisdiction, pursuant to ss 83 and 138, to determine whether any provision of the Constitution had been contravened, the court clearly had jurisdiction to inquire whether the power to appoint a Governor General had been validly exercised (see pp 19, 20, post). A-G v De Keyser's Royal Hotel Ltd [1920] UKHL 1; [1920] AC 508 applied.

(2) At the time of his appointment by the Head of State the evidence showed that L still held public office and was therefore not qualified. Although neither Parliament nor the Head of State realised L's position, his appointment was contrary to ss 27, 48 and 49(1) of the Constitution and was, accordingly, void ab initio (see pp 18, 20 - 21, post).

(3) The application of the common law doctrine of de facto office was to consider the effect on the acts of a person, who had been inadvertently unlawfully appointed, of a misapprehension of his position. It did not suggest that such person could act outside the Constitution or ignore the requirements of the law, nor that he should be considered a de facto officer except when he was the apparent incumbent of a de jure office. The apparently lawful acts of L as Governor General, prior to the determination that his appointment was invalid, would not be invalidated. Since there had been no suggestion that his election or Parliament's address to Her Majesty were invalidated by the fact that he still held public office, once L had ensured he was properly qualified under s 27 the Head of State should be asked to make the appointment by her Commission according to the address from Parliament (see pp 22 - 23, post). Dictum of Field J in Norton v Shelby County [1886] USSC 184; 118 US 425 (1886) at 441-442 applied.

[Editors' note: Section 76 of the Constitution of Solomon Islands provides: ' . . . the provisions of Schedule 3 to this Constitution shall have effect for the purpose of determining the operation in Solomon Islands - . . . (b) of the principles and rules of the common law and equity.'

Section 83 provides: '. . . if any person alleges that any provision of this Constitution ... has been contravened and that his interests are being or are likely to be affected by such contravention, then . . . that person may apply to the High Court for a declaration and for relief under this section.'

Section 138 provides: 'No provision of this Constitution that any person or authority shall not be subject to the direction or control of any other person or authority in the exercise of any function under this Constitution shall be construed as precluding a court of law from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution . . .'

Schedule 3 provides: '2(1) Subject to this paragraph, the principles and rules of the common law and equity shall have effect as part of the law of Solomon Islands, save in so far as: - (a) they are inconsistent with this Constitution or any Act of Parliament.']

Cases referred to in judgment
A-G v De Keyser's Royal Hotel Ltd [1920] UKHL 1; [1920] AC 508, HL
Adams v Adams (A-G intervening) [1970] 3 All ER 572, [1971] P 188, [1970] 3 WLR 934
Aldridge, Re (1893) 15 NZLR 361, NZ CA
Case of Monopolies [1572] EngR 398; (1602) 11 Co Rep 84b, 77 ER 1260
Civilian War Claimants Association Ltd v R [19321 AC; 14, [1931] All ER Rep 432, HL
Connecticut. State of v Carroll 38 Conn 449, 9 Am 409 (1871)
James (an insolvent) (A-G intervening), Re [1977] 1 All ER 364, [1977] Ch 41, [1977] 2 WLR 1, CA
Norton v Shelby County [1886] USSC 184; 118 US 425 (1886)
R v Bedford Level Corporation [1805] EngR 148; (1805) 56 East 356, 102 ER 1323
Rustomjee v R [1876] UKLawRpKQB 105; (1876) 2 QBD 69, CA
Saemala v Gatu [1980-1981] SILR 196

Legislation referred to in judgment
Constitution of Solomon Islands, ss 1(2), 27(1)(2), 30, 33(1)(3), 48, 49, 76, 83, 138, 144, 145(2)(a), Schs 2 and 3
General Orders (relating to Solomon Islands Government's employees), GO 504

Other sources referred to in judgment
Blackstone Commentaries I at 239
Hood Phillips Constitutional and Administrative Law (4th edn 1967) at 244
Wade Administrative Law (5th edn 1982) at 214
Wade and Bradley Constitutional and Administrative Law (10th edn 1985) at 245

Application
The applicant, Andrew Nori, applied by originating summons, dated 5 April 1989, under s 83 of the Constitution for declarations that the present Governor General of Solomon Islands, Sir George Lepping, had been invalidly appointed and that various acts carried out pursuant to such appointment were consequently null and void. The facts are set out in the judgment.

Applicant in person.
R Teutao for the Attorney General.

29 May 1989. The following judgment was delivered.

WARD C.J. On 21 June 1988, the members of the National Parliament held an election to choose a new Governor General of Solomon Islands. Eight candidates had been nominated and Mr George Lepping (as he was then), the Permanent Secretary in the Ministry of Finance, was elected on the seventh ballot. The same day, the outgoing Governor General was informed and asked to send the result to Buckingham Palace to be laid before Her Majesty, the Head of State. On 7 July 1988, Independence Day, the Queen signed a Commission appointing Mr Lepping as Governor General and he was sworn in at a ceremony at Lawson Tama the same day.

Since that time Sir George (as he is now) has carried out the usual duties of the office including the dissolution of Parliament and the proclamation of a general election followed by the election of a new Prime Minister and the appointment of the Ministers of the Government.

The applicant in this case, Mr Andrew Nori, is the elected Member of Parliament for West Are Are and was a Minister of the Government in power throughout 1988 and until the general election on 22 February 1989.

By originating summons dated 5 April 1989, he challenges the validity of some of the events described and, under s 83 of the Constitution, seeks four declarations which, as amended, read:

'(a) a declaration that the present occupant of the Office of Governor General of Solomon Islands, Sir George Lepping, was not validly appointed to that post in accordance with sections 27(2) 48 and 49(1) of the Solomon Islands Constitution and that his appointment was null and void;

(b) a declaration that the election of Honourable Solomon Mamaloni, Member of Parliament for West Makira Constituency, as Prime Minister was null and void on the grounds that the calling of, the conduct of and the presiding at the said election was done by a person who was not a Governor General as required by paragraph 1 and 6 of Schedule 2 of the Constitution;

(c) a declaration that all appointment of persons as Ministers of the Crown by Sir George Lepping and any advice given by the Honourable Solomon Mamaloni precedent to those appointments in accordance with section 33(2) of the Constitution are null and void and of no effect;

(d) A declaration that any payments, benefits or privileges (or the cost of such benefits and privileges) given or accorded to Honourable Solomon Mamaloni as Prime Minister or to any persons appointed as Ministers of the Crown are without legal basis and therefore un- lawful.'

Mr Teutao for the Attorney General contended that Mr Nori had no locus standi and I have already ruled separately he has sufficient interest to give him standing in this case. The principal question for the court and one from which all the following matters arise is the question of the appointment of the Governor General. This is covered by s 27(1) and (2) of the Constitution:

'27(1) There shall be a Governor General of Solomon Islands who shall be appointed by the Head of State in accordance with an address from Parliament and who shall be the representative of the Head of State in Solomon Islands.

(2) A person shall not be qualified for appointment to the office of Governor General unless he is qualified for election as a member of Parliament under Chapter VI of this Constitution.'

The qualification for election as a member of Parliament under Ch VI referred to there is found in ss 48 and 49, the relevant parts of which read:

'48. Subject to the provisions of the next following section, a person shall be qualified for election as a member of Parliament if, and shall not be so qualified unless -

(a) he is a citizen of Solomon Islands; and

(b) he has attained the age of twenty - one years.

49. (1) No person shall be qualified for election as a member of Parliament who . . .

(b) holds, or is acting in, any public office.'

This provision is qualified by s 145(2)(a):

'(2) For the purposes of this Constitution a person shall not be treated as holding, or acting in, a public office by reason only that he -

(a) is on leave of absence pending relinquishment of a public office, or is on leave of absence without salary from a public office . . .

Public office is defined in s 144 as 'an office of emolument in the public service'.

As Permanent Secretary, Ministry of Finance, it is undisputed that Mr Lepping was the holder of a public office and Mr Nori's case is that, at the time of his appointment on 7 July, he was still a public, officer, was not on leave of absence without salary and was, therefore, disqualified for election as a member of Parliament. This is the basis of the declaration he seeks in para (a).

The declaration under para (b) is based on the fact that, by s 33(1) and Sch 2 to the Constitution, the Prime Minister is elected by the members of Parliament at a meeting convened, presided over and conducted by the Governor General.

The declaration sought in para (c) stems from the provisions of s 33(3) whereby the Ministers of the Government are appointed by the Governor General on the advice of the Prime Minister. Mr Nori argues that, if he is correct in his contention that the Governor General's appointment was null and void, those subsequent acts must also be invalid and para (d) is an obvious corollary.

Thus I must first deal with para (a), the appointment of the Governor General. The events surrounding the appointment are demonstrated in the affidavits filed by the Attorney General. The election of Governor General is conducted under a procedure set out in the Standing Orders of Parliament and there is no dispute that the correct procedure was followed. Nominations closed at 4.00 pm on Friday 17 June, and the election was held on Tuesday 21 June. The 36 members present voted in all seven ballots.

Mr Lepping was one of the nominated candidates and on 17 June he had gone to the office of Mr Ben Newyear, the acting Under Secretary in the Ministry of Public Service, and discussed with him the question of leave of absence without salary in view of his intentions to contest the election for Governor General. The same day, Mr Newyear wrote a memorandum confirming their conversation in the following terms:

'Dear George,

PERMISSION TO STAND FOR ELECTION OF GOVERNOR GENERAL

I refer to our discussion on the above matter today and wish to confirm that you are permitted to contest the forthcoming election for the Governor General.

2. Consideration for unpaid leave will be given if your election is successful.

3. I wish you all the best of luck.

Yours sincerely . . .'

From that letter, it would appear Mr Newyear had correctly read s 27 and, therefore, felt he need do nothing until the result of the election was known because the appointment was the time at which the candidate had to be qualified. Unfortunately, it appears no further steps were taken to consider the matter of the unpaid leave until the Governor General's position was brought up in a memorandum from the Secretary to Cabinet, dated 14 November 1988 and addressed to the Permanent Secretary, Ministry of Public Service.

'REVOKING PS/MOF'S APPOINTMENT

I am directed to inform you that Sir George Lepping's appointment as Permanent Secretary of Ministry of Finance should be revoked immediately with effect from the date of his election as the Governor General of Solomon Islands.

I don't think it has ever been done.'

'That was received in the Public Service Office on 18 November and there is on it an undated handwritten note:

'Sir George is no longer PS - MOF. Revocation Order does not arise as upon election he ceased to hold Public Office.'

Whether or not the contents of that memorandum went any further I do not know but a few days later, on 29 November, the Governor General wrote to the Permanent Secretary, Ministry of Public Service in the following terms:

'Dear Sir

G G D LEPPING: GOVERNOR GENERAL POST

Just before the Governor General election, on 21 June 1988, after discussions with Mr B. Newyear, Under - Secretary/MPs, your office confirmed my release from the Public Service. However, that permission only covered the election period.

I now would like to confirm to you my desire to be at the Governor General post, on leave without pay. This would mean that my service with Government as a Public Servant at Permanent Secretary level will continue, while holding the post.

Yours faithfully . . .'

It should be noted that Sir George's recollection of his discussion as stated in the first paragraph does not agree with that of Mr Newyear. There was no suggestion that he be released from the public service for the election and, indeed, it is clear that he was only granted permission to contest the election. A further memorandum was sent by the Secretary to Cabinet to the Permanent Secretary, Ministry of Public Service, on 13 December 1988:

'REVOKING OF PERMANENT SECRETARY OF

MINISTRY OF FINANCE'S APPOINTMENT

Further to my memo. ref. CAB 3/1/2 of 14 November 1988, 1 have been directed to find out from you whether Sir George Lepping's appointment as Permanent Secretary of Ministry of Finance should be revoked from the date of his election as the Governor General of Solomon Islands, or from the date of his appointment to the post of Governor General? Please clarify in line with the PSC Regulations accordingly.'

Again there is a handwritten note by the same person who had written on the earlier memorandum.

'H E G Lepping had ceased to be a public officer upon election to post of Governor General.'

This produced a memorandum from Mr Newyear to the Secretary to Cabinet on 14 February 1989 which again I set out in full:

'REVOCATION OF APPOINTMENT OF PERMANENT SECRETARY

Your Memo. CAB. 3/l/8 of 13/12/88 as a follow up to yours of the same reference dated 14/11/88 is hereby acknowledged.

2. Sir George Lepping has written to say (his letter of 29/11/88) that his service with the Government at Permanent Secretary level continues and that the period of his service as Governor General be treated as unpaid leave.

3. We are yet to make a final decision on Sir Lepping's letter, as it was agreed (Laoro, Saliga, Newyear) in December 1988, that for purpose of providing a service benefit to the holder of the GG post, an ex gratia or terminal payment will need to be paid. We agreed that such terminal benefit is to be assessed at 25% of basic salary and paid in lump sum at the end of term. In our view such arrangement will help solve the present problem of the post being non-pensionable and provide further incentive.

4. It was agreed that Mr Laoro was to convey our decision to the Hon. Attorney General for purpose of incorporating it into the existing Terms and Conditions of Service (Governor General) Regulations 1988. To date I am unable to confirm whether or not Mr Laoro has informed the Attorney General.

5. By copy of this Memo, the Hon. Attorney General is kindly asked to confirm receipt of the above decision.'

A handwritten note at the end states:

'PM's office to decide whether

1) revocation of appointment at permanent secretary level means termination of appointment in the Public Service; or just the title (PS) but not status as public officer.'

Thus it appears that after a proper request by Mr Lepping on 17 June and a e sensible reply by Mr Newyear, nothing more was done in this matter by the Ministry of Public Service for some five months until, in November, the memorandum from the Secretary to the Cabinet sparked off a leisurely and confused correspondence about the status of Sir George in the Public Service. Despite Sir George's reference in his letter of 29 November to leave without pay and the limited nature of his earlier permission, it appears nobody addressed that problem at all.

Mr Edwin Aleziru, the chief payroll officer in the salary section of the Ministry of Finance, produces a document called the 'history printout of salary' for Sir George for the year 1988. This shows that, up to 4 July, he was paid a basic salary of $889.32 each fortnight which was his salary as Permanent Secretary, Ministry of Finance, and is shown to be paid out of head 201 which apparently relates to that Ministry.

On 21 July, and each pay day thereafter, he was paid $908.62 from head 011 which is the salary for Governor General (although it was not until 1 September that deductions of tax ceased). The question of how the holder of a public office obtains leave of absence without pay when standing for election to Parliament was considered by Daly CJ in Saemala v Gatu [1980-1981] SILR 196 at 201:

'The relationship between the Solomon Islands Government and its employees is governed by General Orders. Chapter J section 1 deals with the general principles relating to leave and makes it clear that leave "unless otherwise stated will be granted by the Government at its discretion." Chapter C section 5 paragraph 504 deals with leave for the purpose of standing for election to the National Legislature. Sub paragraph 2 reads:

"an officer wishing to stand for election to (the National Parliament) is required to apply for permission to do so in writing to the Secretary for the Public Service through his Responsible Officer." (The subparagraph then sets out certain duties of the Responsible Officer).

Sub paragraph 3 provides: -

"If an officer . . . is given permission to stand, he will . . . be granted leave of absence without salary from his office with effect from the day that his nomination paper is signed to the day prior to the date of the declaration of the results of the election."

It has been suggested that these provisions are confusing; I do not agree. What stands out clearly is that permission must be sought and must be granted before a person becomes entitled to say that he is on leave of absence without salary from his office. Such a provision accords with common sense in that a person can only cease to attend to his undertaken employment as a person on leave with the consent of his employer. The very words "leave of absence" to my mind make it obvious that the consent or "leave" of the employer is essential to the process.'

Mr Teutao argues that is really an end of the matter. He suggests it is clear from the correspondence that Mr Lepping was given permission to stand for election by Mr Newyear in his letter of 17 June. By GO C504(3) once permission is given 'he will be granted leave of absence' or, in the words of Daly CJ, 'he becomes entitled to say he is on leave of absence without salary'. Permission having been granted, the critical date is that of appointment, 7 July, and the evidence of the salary payments show that, from 5 July, he ceased to receive pay for the position of Permanent Secretary. Thus he was no longer receiving the salary of a public officer.

I am afraid I cannot accept that argument. The General Orders cited relate to election to the National Parliament. Understandably, there is no special section relating to election to the post of Governor General. In the former case, the qualifying date is the date of nomination. In order to be able to contest an election to Parliament, a public officer must seek permission to stand and must be granted leave of absence without salary from the date of nomination through to the election. He requires both the permission and leave of absence. General Order C504 recognises this fact and makes the one decision follow automatically on the other.

In the case of the Governor General, there are two separate and distinct processes, election and appointment. The question posed by Mr Teutao of whether a public officer needs to seek permission when he is nominated for election to this post is not relevant. Nothing in the Constitution prevents a public officer from being nominated and elected to the post of Governor General whilst still holding a public office. What s 27 requires is that, if successful, he must either resign from the public service or bring himself within s 145(2) (a) before he is appointed by the Head of State. If he fails to do so, he is not qualified for such appointment.

Determination of Mr Lepping's situation depends on the events of 17 June. Paragraph 3 of Mr Newyear's affidavit sets these out clearly:

'B. On 17 June 1988 Mr G. G. Lepping (as he was then) came into my office to discuss with me the question of leave of absence without salary in view of his intention to stand in the election for the Office of the Governor General to be held on 21 June 1988. At the material time I was the Acting Under Secretary of the Ministry of Public Service and Mr G. G. Lepping (as he was then) was the Permanent Secretary of the Ministry of Finance. After our said discussion 1, on behalf of the Permanent Secretary of the Ministry of Public Service, then wrote on 17 June 1988 to Mr G. G. Lepping (as he was then) to confirm that permission to stand for the said election had been granted but that consideration for unpaid leave would be given if he were successful in the said election.'

The letter of the same date confirms that. Even if an oral request was sufficient (in contrast to the requirements of GO C504), it is apparent that the permission granted was only to contest the election. Because of the distinction to which I have already referred between election and appointment, it was correct for Mr Newyear to consider the request for unpaid leave of absence as a separate matter. As a result that decision was deferred and was only to be considered if Mr Lepping was successful in the election.

Having raised the matter on 17 June, I accept that Mr Lepping, in the busy time that followed, may well have failed to give it further thought but the Ministry of the Public Service should have done so. This is not a case where they had decided to grant leave subject to his successful election. What they did was to defer consideration of the question. Clearly, when he was successful in the election, it required a decision whether to grant him leave of absence without salary and this was not made.

How far, then, does the evidence from Mr Aleziru take the matter? It is true that whatever the failings of the Ministry of Public Service the Ministry of Finance took timely action to change the payments but I cannot accept that is evidence of a decision having been taken by the proper authority on Mr Lepping's status in the public service. It was a well known fact that he was to be sworn in on 7 July and there is no evidence the change of payments was done on anything more than their own initiative.

A decision to allow a public officer to take unpaid leave is a change of status that cannot be assumed to have occurred simply on a request by one side. Neither can silence and inactivity by one side give rise to a presumption they have acted in accordance with the request of the other.

Quite reasonably Mr Lepping clearly accepted his new salary payments. In some circumstances, such an action may be taken as acquiescence in the change of status. That cannot apply here because the evidence shows that his first receipt of the new salary was on 21 June, well after the critical date of appointment. Thus, I do not feel the evidence of payment of salary advances the matter and, on a consideration of all the evidence I find that, at the time of his appointment by the Head of State, Mr Lepping still held public office and, therefore, was not qualified.

However, Mr Teutao suggests that, even if that is so, when the Queen as Head of State made the appointment it was an exercise of her prerogative and, as such, cannot be questioned in any court. With his usual diligence, he cites a number of authorities starting with Rustomjee v R [1876] UKLawRpKQB 105; (1876) 2 QBD 69 and ending with Civilian War Claimants Association Ltd v R [1932] AC 14. These cases relate to the question of 'act of state' and, having considered them, I do not think they assist his submission. His case requires consideration of whether or riot the Head of State has prerogative powers under our Constitution and. the status of this court in relation to the exercise of those powers.

What is the position of the Queen under the Constitution? By s 1(2), Her Majesty shall be Head of State of Solomon Islands. Section 30 provides:

'(1) The executive authority of the people of Solomon Islands is vested in the Head of State.

(2) Save as otherwise provided in this Constitution, that authority may be exercised on behalf of the Head of State by the Governor General either directly or through officers subordinate to him.'

Section 27, dealing as it does with the appointment of the Governor General, is a part of the Constitution that provides otherwise from s 30(2) and Mr Teutao suggests that power is part of the Queen's prerogative. Prerogative power is described by Professor Wade Administrative law (5^th edn 1982) at 214 as 'legal power which appertains to the Crown but not to its subjects'. He quotes Blackstone's view (Commentaries 1 at 239) that the term can '...only be applied to those rights and capacities which the kings enjoys alone in contradistinction to others, and not to those which he enjoys in common with any of his subjects...'

Professor Bradley ( Wade and Bradley Constitutional and Administrative Law ( 10^th edn 1985) at 245) suggests that a modern definition would stress the prerogative has been maintained not for the benefit of the Sovereign but to enable the Government to function, and that prerogative is a matter of common law and does not derive from statute. Thus Parliament may not create a new prerogative although it may confer on the Crown new rights or powers which may be similar in character to prerogative powers.

'Both the Sovereign, as head of state, and the government, as personified for many purposes by the Crown, need powers to be able to perform their constitutional functions. The rule of law requires that these powers are grounded in law, and are not outside or above the system of law which the courts administer. In Britain the powers of the Sovereign and the Crown must either be derived from Act of Parliament or must be recognised as a matter of common law, for there is no written constitution to confer powers on the executive.'

It has long been established that, where an Act of Parliament covers a matter that is otherwise a prerogative power, the prerogative is, thereafter, subject to that statute and any rules it contains. In A-G v De Keyser's Royal Hotel Ltd [1920] UKHL 1; [1920] AC 508 Lord Dunedin stated at 526:

'. . . it is . . . certain that if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules. On this point I think the observation of the learned Master of the Rolls is unanswerable. He says: "What use would there be in imposing limitations, if the Crown could at its pleasure disregard them and fall back on prerogative?"

The prerogative is defined by a learned constitutional writer as "The residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown.” Inasmuch as the Crown is a party to every Act of Parliament it is logical enough to consider that when the Act deals with something which before the Act could be effected by the prerogative, and specially empowers the Crown to do the same thing, but subject to conditions, the Crown assents to that, and by that Act, to the prerogative being curtailed.'

Similarly Lord Atkinson at 539 - 540 said:

'It is quite obvious that it would be useless and meaningless for the Legislature to impose restrictions and limitations upon, and to attach conditions to, the exercise by the Crown of the powers conferred by a statute, if the Crown were free at its pleasure to disregard these provisions, and by virtue of its prerogative do the very thing the statutes empowered it to do. One cannot in the construction of a statute attribute to the Legislature (in the absence of compelling words) an intention so absurd. It was suggested that when a statute is passed empowering the Crown to do a certain thing which it might theretofore have done by virtue of its prerogative, the prerogative is merged in the statute. I confess I do not think the word "merged" is happily chosen. I should prefer to say that when such a statute, expressing the will and intention of the King and of the three estates of the realm, is passed, it abridges the Royal Prerogative while it is in force to this extent: that the Crown can only do the particular thing under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance. Whichever mode of expression be used, the result intended to be indicated is, I think, the same - namely, that after the statute has been passed, and while it is in force, the thing it empowers the Crown to do can thenceforth only be done by and under the statute, and subject to all the limitations, restrictions and conditions by it imposed, however unrestricted the Royal Prerogative may theretofore have been.'

I accept that as good authority that, as the powers of the Head of State in Solomon Islands are defined and covered by the Constitution, they are subject to the Constitution.

The power under s 27 to appoint the Governor General must be exercised in a way that observes and is bound by the restrictions imposed by the same instrument. How much true prerogative is left is a matter I do not need to decide for this purpose. What, I think, is important is that the Constitution makes it clear the power to appoint the Governor General is subject, inter alia, to the person appointed being qualified under s 27(2).

By ss 83 and 138, the High Court has jurisdiction, with some exceptions that are not relevant here, to determine whether any provision of the Constitution has been contravened. As the power under s 27 can only be used by and under the Constitution, this court has jurisdiction inquire into it.

It is apparent that, when Mr Lepping was appointed, neither Parliament nor the Head of State realised he was not qualified. What, then, is the effect of that purported appointment now that it is known he was not qualified? I feel the answer must be that the appointment was void ab initio. As far back as the early seventeenth century when it was accepted that the actions of the King could not be questioned, it was stated that,

'When . . . by misinformation or inadvertence [the King] grants a franchise . . . repugnant to the common law or prejudicial to the community . . . the law declares that the Sovereign has been deceived in his grant, and such a grant is void.' (Case of Monopolies [1572] EngR 398; (1602) 11 Co Rep 84b quoted in Hood Phillips Constitutional and Administrative Law (4th edn (1967) at 244).

I have given all these matters the most anxious consideration as this is a very serious point but I am satisfied that I must make the declaration requested in para (a) and I do so.

The remaining declarations sought to question the validity of acts carried out by Sir George in pursuit of the office of Governor General. As I have already said, the address from Parliament and the appointment were clearly made in good faith and in ignorance of Mr Lepping's lack of qualification. Since that time, it is equally clear that he has carried out the normal duties of Governor General in the honest belief his appointment was and is valid. Similarly, until this challenge, the public as a whole have accepted his appointment and his right to act in the office.

The effect of such a situation has long been settled law in many jurisdictions. Where there is an unknown flaw in the appointment or authority of some officer, his acts may be held to be valid even though his appointment is invalid and he has no true legal powers. Thus, whilst Sir George cannot be considered Governor General de jure, he is Governor General de facto. In the English case of R v Bedford Level Corporation (1805) 56 East 356 Lord Ellenborough CJ explained, 'An officer de facto is one who has the reputation of being the officer he assumes to be and yet is not a good officer in point of law.'

This and other English judgments were used as the starting point in a number of cases in the United States of America largely provoked by the events of the Civil War. I cite only two; both of which deal extensively with the authorities. In the case of State of Connecticut v Carroll 38 Conn 449 (1871) Butler CJ gave what has become one of the classic definitions of an officer de facto:

'An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office are exercised:

First, without a known appointment or election, but under such circumstances of reputation, or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be.

Second, under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent, requirement or condition, as to take an oath, gave a bond, or the like.

Third, under color of a known election or appointment, void., because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public.'

(I do not quote a fourth head as it relates exclusively to the position in the United States.) In another United States case, Norton v Shelby County [1886] USSC 184; 118 US 425 at 444 - 445 (1886) Field J delivering the opinion of the Court said:

'Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions.'

And quoting Manning J in an earlier case:

'all that is required when there is an office to make an officer de facto, is that the individual claiming the office is in possession of it, performing its duties and claiming to be such officer under color of an election or appointment, as the case may be. It is not necessary his election or appointment should be valid, for that would make him an officer de jure. The official acts of such persons are recognised as valid on grounds of public policy, and for the protection of those having official business to transact.'

A similar conclusion was reached by the New Zealand Court of Appeal in Re Aldridge (1893) 15 NZLR 361 after an exhaustive examination of the authorities (especially in the judgments of Prendergast CJ and Richmond J). Recent cases in England (Adams v Adams [1971] P 188 and Re James (an insolvent) (A-G intervening) [1977] 1 All ER 364) affirm these earlier decisions.

Mr Nori does not accept those authorities as having any force here. The law we are considering, he points out, is a Solomon Islands law. Nothing in it suggests the doctrine of de facto office has any place here. By s 76 and Sch 3 to the Constitution, the principles and rules of the common law and equity shall have effect as part of the law of Solomon Islands save in so far as they are inconsistent with the Constitution or any Act of Parliament. Therefore, he argues, as the Constitution requires the participation of the Governor General for the election of a Prime Minister and the appointment of the Ministers of the Government, it clearly requires a Governor General de jure. When Sir George performed those acts earlier this year, he was not an officer de jure and so the acts must be void. Any provision of the common law that allows an interpretation inconsistent with that shall not have effect as part of the law of Solomon Islands.

I think he takes the provision too far. The application of the common law doctrine of de facto office to the situation we now face does not suggest the Governor General can act outside the Constitution or ignore the requirements of the law. Everything he did after his appointment was done according to the requirements of the law and accepted to be so by the public as a whole. Neither does it suggest he be considered a de facto officer except when he is the apparent incumbent of a de jure office. What the application of this doctrine does is to consider the effect on those acts of a misapprehension of his position. Field J in Norton's case at 441 - 442 points out:

'The doctrine which gives validity to acts of officers de facto, whatever defects there may be in the legality of their appointment or election, is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent: possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined.'

I feel, with respect, that is a sound argument. I cannot accept the subsequent discovery that an earlier and, to all appearances, lawful act was carried out by an officer who through some inadvertence was not lawfully appointed can invalidate that act. To do so would create an impossible situation. One only needs to ask how far back this would apply to realise the impossibility of such a view. I cannot, therefore, make the declarations sought in paras (b), (c) and (d) of the summons.

However, before I leave this matter, I must take it a stage further. In the passage I have already quoted, Field J restricted the acceptance as valid of acts by a person holding de facto but not de jure office to those that occurred before his lawful position was determined.

Equally, in Adams v Adams at 212 Sir Jocelyn Simons referred to the Bedford Level Corporation case as authority for the proposition that the doctrine has no place where the circumstances giving rise to the legal defect are notorious. In the Bedford Level case a deputy registrar's authority expired on the death of his principal and once the death was generally known, the deputy could not be taken to have any colour of authority to act. Sir Jocelyn Simons applied the doctrine to a case where a judge had been appointed under a regime in Rhodesia that was well known to have been declared illegal.

As a result of these proceedings the court has had to investigate and determine the de jure position of Sir George. Now it has concluded that his appointment as Governor General was invalid, any further acts done by him under color of that office will be unlawful and have no effect until and unless a valid appointment is made. There has been no suggestion that his election or, indeed, Parliament's address to Her Majesty were invalidated by the fact he still held public office.

Therefore I would humbly suggest that, once Sir George has ensured he is properly qualified under s 27, Her Majesty should be asked to make by her Commission the appointment according to the address from Parliament. No order for costs.