Prime Minister v Governor General [1998] SBHC 117; HCSI-CC 14 of 1998 (18 September 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Appeal Case No. 14 of 1998

PRIME MINISTER

-v-

THE GOVERNOR GENERAL

Court of Appeal of Solomon Islands
(Muria, CJ.)
Civil Appeal Case No. 14 of 1998

Hearing: 8 September 1998
Interlocutory Judgment: 18 September 1998

Mr. B. Titiulu for Appellant
Ms Tepai for the Respondents

Interlocutory Judgment

MURIA CJ: On 18th September 1998, I refused the plaintiff’s application for a stay and said that I would give my full reasons for doing so. That I now do.

This is an application by the plaintiff, the Prime Minister, to stay the debate by Parliament of the Motion of no-confidence in him pending the determination of his appeal. The application is brought pursuant to Rule 11 of the Court of Appeal Rules, 1983.

On 10th September 1998, just a week ago, the High Court decided that the Governor General has power under section 72(1) of the Constitution to direct Parliament to meet and that the circumstances as obtained on 1st September 1998 justified the Governor General to so exercised his power and directed that the Speaker of Parliament fix a date to debate the no-confidence motion. Following that order, the speaker fixed 25th September 1998 as the date to debate the motion in Parliament. In the meantime the plaintiff has filed on 15th September 1998 a Notice of Appeal against the High Court’s decision and also seeks to stay the debate of the no-confidence Motion pending the determination of the appeal.

It must be observed that an application under Rule 11 “shall be made by notice of motion supported by affidavit” This is essential so that the Court will know the basis upon which to exercise its discretion as to whether or not it would grant the stay sought. I think it is particularly more so essential that evidence in support be placed before the Court in such an application as this in view of sub-rule(5) of Rule 11 which clearly provides that an appeal “shall not operate as a stay” of execution or stay of any proceedings. Rule 11 (5) provides:

“(5) Except so far as is otherwise ordered under this Rule or by the Court or a judge:-

(a) an appeal shall not operate as a stay of execution or a stay of any proceedings pursuant to a decision of the High Court; and

(b) no intermediate act or proceeding shall be in validated by an appeal”

It must therefore be obvious that any application to stay execution or stay “any proceedings” arising out of the High Court’s decisions pending appeal must be supported by evidence in view of the above provisions of Rule 11. Again, a further look at sub-rule (5) will also show that it provides that no intermediate act or proceeding will be invalidated by an appeal. So that any action lawfully taken pursuant to the decision of the High Court will not be invalidated by reason of an appeal pending against that decision of the High Court. Both paragraphs (a) and (b) of Rule 11 (5) are expressed in mandatory language which throws the burden on the applicant to satisfy the Court on the evidence that it should exercise its power and order otherwise.

Mr. Titiulu’s main contention in support of the application is that it is essential to delay the debate of the motion of non-confidence until the Court of Appeal deals with the appeal. Counsel further urged that the motion of no-confidence is the subject matter closely connected to the issues raised for the Court of Appeal’s determination and so it would be essential that the debate on the motion be delayed pending the appeal.

When pointed out to him the effect of Rules 11 (5) of the Court of Appeal Rules, Mr. Titiulu conceded that an appeal cannot operate as a stay of execution or proceedings of the High Court nor shall an appeal invalidate any act taken between now and the hearing of the appeal in pursuant to the High Court decision.

The High Court had the constitutional jurisdiction to deal with the matter. Pursuant to that power, it had determined the legal issues arising in the case, Prime Minister -v- Governor General, CC 150/98. The High Court ordered the debate of the motion of no- confidence to be postponed pending the determination of the legal issues arising in that case. That had now been done, and there is no reason shown which justifies this Court now to stop that debate pending appeal particularly when one looks at Rule 11 (5) of Court of Appeal Rules.

Different legal principles now apply when one seeks a stay pending appeal, as clearly shown by the Rules. See also Willow Wren Canal Carrying Co. Ltd -v- British Transport Commission [1956] 1 All E. R. 567 which applied the principles enunciated in A. G. -v- Racecourse Betting Control Board [1935] Ch. 34 and British & Colonial Furniture Co. Ltd. -v- William Mcllroy, Ltd (No.1) [1951] 1 All E.R 404.

The essence, in reality, of this application is the contention that the debate of the pending Motion of no-confidence in the Prime Minister in Parliament should not proceed until the Court of Appeal deals with his appeal as any decision taken in Parliament on the motion would prejudice his appeal. In fact as the application for a stay is being heard, Parliament had already been convened and the debate on the motion had already been in progress. So while the Prime Minister is seeking through his Counsel a stay of the debate of the motion of no-confidence in him, Parliament had been convened and the Prime Minister and his colleague supporters were in Parliament defending their stand against the motion. By the time the court decided that the application be refuse, the result of the debate on the motion of no-confidence in the Prime Minister in Parliament was about to be known.

In my respectful view, it would not be right to decide this application on the basis of any possible outcome of the motion now before Parliament. See British & Colonial Furniture Co. Ltd -v- William Mcllroy, Ltd (above) where Jenkins LJ said at p. 405, after considering the application for a stay in possession of the premises pending the debate of the Leasehold Property (Temporary Provisions) Bill in Parliament, which Bill if and when passed, would confer some advantage to a tenant in occupation:

“In my judgment, it is contrary to all principles that we should decide these two cases not simply on matters relevant to the particular landlord and tenant legislation as it stands, but by reference to possible alterations in the law which may be made under legislation yet to be passed.”

That was a case regarding an application for a stay pending the debate of a Bill in Parliament. The principle in my view is equally applicable to an application for a stay pending the debate of a motion in Parliament. The Court ought not to take into account the possible outcome of the motion now before Parliament in application such as this.

The debate of the motion of no-confidence is not a legal business of the Court. It is a matter of politics. As such the Courts are not the forum to resolve that. The proper forum is the National Parliament. The High Court had dealt with the legal issues arising and the politics of it must be dealt with in Parliament.

No one can deny the need to resolve the present political dispute that has prevailed in this country for the last weeks. Constitutional law issues had arisen as a result of that dispute. The High Court had dealt with those questions of law on two separate sittings of the Court within nine days. As far as I am concerned, it has discharged its constitutional duty demanded of it by the Constitution. Now it is for Parliament to resolve this dispute. Parliament as directed by Governor General must sit so that our elected leaders come together to resolve their dispute.

I have considered the matters raised by the Prime Minister in his affidavit but in the circumstances, a stay sought cannot be granted.

Application refused.

(Sir John Muria)
CHIEF JUSTICE