Tabe v Speaker Choiseul Provincial Assembly [2024] SBHC 33; HCSI-CC 32 of 2024 (7 February 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Tabe v Speaker Choiseul Provincial Assembly
Citation:
Date of decision:	7 February 2024
Parties:	Tongoua Tabe v Speaker Choiseul Provincial Assembly, Lincoln Galo
Date of hearing:	5 and 6 February 2024
Court file number(s):	32 of 2024
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	The Court will not be in a position to determine whether or not the notice complies with Standing Order 108 until the claim has been heard. In these circumstances the cost of the application are costs in the cause.
Representation:	Mr A Radclyffe for the Claimant Mr B Pitry for the First Defendant Mr J Kaboke for the Second Defendant
Catchwords:
Words and phrases:
Legislation cited:	Standing Order 108, SO 106,
Cases cited:	American Cyanamid Co v Ethicon Limited [1978] UKHL 1, Allardyce Lumber Company Limited v Aujo [1997] SBCA 3, Murphy v Attorney General [1994] SBHC 75, Maclean v Liquor License Board of Ontario [1975] 9012

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 32 of 2024

BETWEEN

TONGOUA TABE
Claimant

AND:

SPEAKER CHOISEUL PROVINCIAL ASSEMBLY
First Defendant

AND:

LINCOLN GALO
Second Defendant

Date of Hearing: 5 and 6 February 2024
Date of Decision: 7 February 2024

Mr A Radclyffe for the Claimant
Mr B Pitry for the First Defendant
Mr J Kaboke for the Second Defendant

Ruling

1. The Claimant is the Premier of Choiseul Province. The First Defendant is the Speaker of the Choiseul Provincial Assembly. The Second Defendant is the Choiseul Provincial Member for Vasiduki Ward in Choiseul Province. The Second Defendant has deposed that he and others have resigned from the Choiseul Provincial Executive led by the Claimant.
2. On 26 January 2024 the Second Defendant presented a notice of motion of no confidence in the Premier setting out three grounds. Those are set out as follows;
   • “(1) There is gross neglect of mandated powers and responsibility by the Premier when ignoring the Executives general consensus to request a legal advisor to assist government to review outdated ordinances of the province.
   • (2) The Premier has shown conflicts of personnel interest with regards to Choiseul province policies and Executives decisions with regards to have consultations with interested investors in the natural resources of the province, especially mining.
   • (3) The Premier has failed to adhere to expected protocols and cooperation as head of the government, when during his absence from office to go to China in 2023, did not handover the supervision of Premiers Office to the Deputy Premier, with no explanation to the Executive Committee.”
3. The First Defendant, as Speaker, accepted the notice of motion and scheduled an extraordinary Provincial Assembly meeting for 8 February 2024. The Clerk to Assembly then gave notice of the extra ordinary Provincial Assembly meeting in a notice dated 29 February 2024. It is accepted that this date must be an error. The notice annexed as exhibit TT4 to the sworn statement of the Claimant filed on 31 January 2024 has a stamp affixed with the receipt date being 30 January 2024.
4. Part 6 of the Standing Orders for the Choiseul Provincial Assembly makes mention for motions of no confidence in the Premier. Standing Order 108 sets out the grounds that must be compiled with to found a motion of no confidence. Standing Order 108 provides;
   • “a motion of no confidence under SO 106 must state in specific terms the grounds for the lack of confidence, being;
   • b. Gross misuse or neglect of the powers of the office; or
   • c. Misappropriation of public funds; or
   • d. Any grounds ... may bring the office into to serious dispute.”
5. The Claimant has filed a claim for judicial review seeking the following:
   • “A declaration that the second defendant’s notice of motion of no confidence in the claimant, as Premier of Choiseul province, dated 26^th January 2024 does not comply with Standing Order 108 of the Choiseul Provincial Assembly standing orders and is therefore null and void.
   • An order prohibiting the first defendant from allowing the motion of no confidence referred to in 1 above to be moved at a meeting of the Provincial assembly on 8^th February 2024 or on any other date while these proceedings are pending such further or other orders as the Court thinks fit.”
6. The statement of case sets out the essential facts upon which the Claimant relies. It alleges that the letter of 26 January 2024 does not comply with Standing Order 108 and that the Notice to the Provincial Members, which is in the same terms, does not comply with the standing orders.
7. The Claimant has also filed an application for an interim order prohibiting the First Defendant from allowing the motion of no confidence in the Claimant to proceed on 8 February 2024 or on any other date while these proceedings are pending.
8. The application came before the Court on an urgent basis on 5^th February 2024. Counsel for the Second Defendant advised the Court that he was not in a position to proceed as he has only just received the relevant documentation and needed to obtain instructions. The Court sought an indication from counsel as to whether the application was opposed and in the course of the exchange between counsel and bench, the Court raised with Mr Pitry for the first defendant whether the first of the stated grounds could meet the threshold for Standing Order 108. The Court then adjourned for 10 minutes so counsel could continue their discussion on how they wished to proceed with the application. When the Court resumed, the hearing of the application was adjourned until 8.30am on 6^th February 2024 to allow counsel for the Second Defendant time to take instructions to prepare for the hearing.
9. On 6 February 2024 Mr Pitry raised a preliminary issue. He asked me as the Judge in the matter to recuse myself on the basis of the exchange on 5 February 2024. He did not put forward any authority for his application nor did he put forward any basis for an apprehension that there might be judicial bias. I reminded counsel that Courts must not pass a matter on to another judge without sufficient cause. This Court reviewed the authorities applicable to an application for recusal in R v Richard Seketala CRN 175 of 2019 delivered on 22 April 2021. An application for recusal needs to set out an identification of what may lead a judge to decide a case other than on its legal and factual merits. Secondly, it must include a logical connection between the matter identified and the feared deviation from the course of deciding a case on its merits. The Court must then consider whether the fair minded and informed observer, having considered the circumstance, would conclude that there is a real possibility that the tribunal is biased. There needs to be the two stage enquiry referred to above. That matters relies on must be real and not remote. In Seketala the Court adopted the test that the fair minded and informed lay observer is presumed to be intelligent and to view the matter objectively, a non-lawyer, but reasonably informed about the workings of the Court and neither unduly sensitive or suspicious nor complacent about what may influence the judge’s decision.
10. In the present case it is not suggested that I as the judge am connected to any of the parties, indeed to the best of my knowledge they are all unknown to me. Mr Pitry has put nothing forward other than the query about whether the first of the stated grounds could meet the threshold of Standing Order 108. No circumstance has been put forward to support a submission that the Court may decide the matter other than on its legal and factual merits. Counsel for the Second Defendant did not wish to be heard on the application that I recuse myself. Counsel for the Claimant opposed it and correctly submitted that no evidence was put forward that could justify the application. He submitted that the application was one that had the potential to unnecessarily delay the proceedings and bearing in mind the urgency of the listed application, the request for the Court to recuse itself was opposed.
11. Keeping in mind the circumstances in the present case, I conclude that the fair minded informed observer who is intelligent and views matters objectively, could not conclude that there was a real possibility that the Court was biased or may determine the matter other than on its merits. The application for recusal must fail.
12. Turning now to the application to prohibit the first defendant from allowing the motion of no confidence to proceed on 8^th February 2024 or while these proceedings are pending.
13. Counsel for the Claimant, Mr Radclyffe, referred the Court to Standing Order 108 and emphasized that the motion must state in specific terms the grounds for the lack of confidence. He submitted that the First Defendant ought to have determined that the grounds put forward by the Second Defendant did not comply with the requirements of Standing Order 108. Each ground must come within one of the three categories set out in that order. Counsel submitted that Standing Order 108 makes it clear that frivolous grounds should not be able to stand. The use of the terms “gross misuse or neglect” show that the matters are not to be taken lightly. Counsel turned to the three grounds put forward and submitted that none of them met the criteria required by Standing Order 108. He submitted that ground 1 has nothing to do with gross neglect, that nothing specific was put forward in relation to ground 2 and for ground 3 the position was the same as ground 1.
14. As a result counsel submitted that the Notice did not comply with Standing Order 108 such that the interim order sought should be granted. He said if the motion does not comply, the debate called for that issue does not properly inform the members of the Assembly on what basis the motion is to be heard.
15. Counsel submits that there are serious mattes to be tried in the hearing of claim for judicial review.
16. For the First Defendant, Mr Pitry referred to his written submissions filed on 5^th February 2024 and his additional submissions tendered in Court. He also relied on the two sworn statements of Isaiah Pitakaka and the annexures exhibited in those submissions. He submitted that the decision of this Court in Maui and Tino v Attorney General, CCN 486 of 2023, dated 23 October 2023 was the same as in the present case. That case concerned a claim for judicial review with the applicant seeking an order to prohibit or restrain the Minister of Mines and the Minerals Board from performing their functions under the Mines And Minerals Act. The Court found there were triable issues to be determined but was not satisfied that the balance of convenience favored granting the relief sought. The Court was further satisfied that damages would be an adequate remedy.
17. Counsel raised three grounds for opposing the application. He submits that the application contravenes rule 7.1 of the Solomon Islands Courts (Civil Procedure) Rules 2007 [‘the Rules’] in that in his submission the same order is sought in the application as in the claim for judicial review. He submits that what is being sought is a final order. That is clearly not the case. The claim for judicial review is that the Notice of Motion does not comply with Standing Order 108. The application before the Court is to maintain the status quo until the judicial review claim can be heard. The Court understands that the reason counsel for the Claimant made submissions on the merits of the claim was to satisfy the requirements of the test formulated in the case of American Cyanamid Co v Ethicon Limited [1978] UKHL 1, as approved in Allardyce Lumber Company Limited v Aujo [1997] SBCA 3.
18. Mr Pitry submitted that it was premature to bring the application as the “process has not been completed”. He submitted that the application should be heard after the debate on 8 February 2024. That submissions misses the point of bringing an application such as that before the Court. If the notice is invalid then the debate would be contrary to orders that regulate the Assembly.
19. Mr Pitry argued that the claim does not satisfy the test that there are triable issues. There clearly are triable issues concerning the arguments of the Standing Orders and whether the notice of motion is valid. Those orders are there for a purpose and must not simply be ignored. Mr Pitry referred to exhibit IP2, annexed to the sworn statement of Isaiah Pitakaka filed on 5 February 2024. That exhibit is said to be a response by the Claimant to the letter of 26 January 2024. Counsel submitted that the Claimant has been able to respond to the allegations raised in the Motion of No Confidence. The notice however is addressed to all Provincial Assembly members. They are required to be informed, in specific terms, the grounds for the lack of confidence. This is not optional. It is the requirement of Standing Order 108. The submission that the Claimant knows the grounds and has responded means he is aware of what is being raised is to ignore the standing order and the purpose behind it.
20. Counsel then turned to the balance of convenience and submitted that it lies in not granting the order sought. The basis for the submission was that the members of the Provincial Assembly are already in Taro or are arriving there and to grant the application would have financial consequences. Finally counsel submitted that the First Defendant was performing an official duty not a personal duty. As such he submitted that Section 18 of the Crown Proceedings Act prohibits the order sought. Section 18 provides;
    • “18- (1) in any civil proceedings by or against the crown the court shall, subject to the provisions of this act, have power to make all such orders as it has power to make in proceedings between subjects; and otherwise to give such appropriate relief as the case may require;
    • Provide that –
    • (a) Where in any proceedings against the Crown any such relief sought as might in proceedings between subjects be granted by way of injunction or specific performance, the Court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and
    • (b) In any proceedings against the Crown for the recovery of land or other property the court shall not make an order for the recovery of the land of the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Crown to the land or property or to the possession thereof.

(2) the court shall not in any civil proceedings grant any injunction or make any order against any officer of the crown if the effect of granting the injunction or making the order would be to give any relief against the crown which could not have been obtained in proceedings against the crown.”

21. Counsel submitted that as the First Defendant is an officer of the Crown performing an official duty the Court cannot grant an injunction against him. He referred the Court to the case of Murphy v Attorney General [1994] SBHC 75 where Justice Palmer, as he was, reviewed the common law authorities dealing with the same form of legislation. Justice Palmer referred to Maclean v Liquor License Board of Ontario [1975] 9012 [2d] 597 [Div Ct] which said:
    • “the ultra vires character of the Boards acts removed the protection of Crown immunity. The effect of Maclean is to treat the no-injunction provision of the Crown proceedings statues as merely declaratory of the common law. This is the better view of the provision. It does not affect the power of the courts to grant an injunction against a crown servant to restrain an unauthorized act. Such an injunction is premised on the personal liability of the individual crown servants, and its effect is to give relief against the individual and not the Crown”.
22. This Court has not had the benefit of hearing detailed submissions on this point as counsel for the Claimant had no warning that section 18 of the Crown Proceedings Act was to be raised. However section 18(2) of that Act makes similar provisions to rule 15.3.5 of the Rules, which provides;
    • “15.3.5 - A claim for an interim declaration or injunction may be made in proceedings for judicial review and the court may grant an interim declaration or injunction if it considers that it would be just and convenient to do so having regard to:
    • (a) The nature of the matters in which relief may be granted by way of judicial review; and
    • (b) The nature of the persons and bodies against whom relief may be granted by such an order; and
    • (c) All the circumstances of the case.”
23. Mr Pitry further argued that by seeking a meeting of the Assembly at a later date would in effect be amending the Notice which he says the Court has no power to do. He relied on the Court of Appeal decision of Attorney General V Speaker of Western Provincial Assembly COA 33 of 2022, 12 August 2022. That case is not authority for the proposition put forward. That case found that there was a power vested in the Minister and the Court had made a final order amending the Minister’s order rather than confine itself to the Courts power on review.
24. In the present case the claimant is not asking the Court to amend the Notice. The claim challenges the lawfulness of the Notice by way of judicial review and seeks an order in this application that the debate not occur until that can be done.
25. For the Second Defendant, Mr Kaboke tendered a sworn statement from the Second Defendant in which evidence was put forward that the Claimant no longer enjoyed the support from the majority of the Assembly. He says without that support the Claimant cannot pass the budget required. His submissions were all of a pragmatic nature not addressing the central issue as to whether the Notice complied with Standing Order 108. His submission was directed at the balance of convenience as the Assembly members were gathering in Taro. It should be borne in mind that the meeting is an extraordinary meeting called for the purpose of debating the Notice of Motion. Mr Kaboke submitted however that if the application is granted the Assembly has no ability to pass its budget because of the Premier now leading a minority government. He directed the Courts attention to rule 15.3 of the Rules and submitted that to grant the application would not do justice to the people. He suggested that the people will suffer from budget cuts and the application is opposed to avoid injustice to the people of Choiseul.
26. The problem with this argument is that the Court must deal with the claim for judicial review. It is up to the Assembly to determine the issues of the budget and what is considered in the interest of the people of Choiseul. If the submission made is correct and the Claimant does not have the support of the majority of the assembly that does not mean a budget cannot be passed. It is not unusual for a minority government to still have a budget passed.
27. In response Mr Radclyffe submitted that the Claimant is not seeking an injunction against the Crown but against the Speaker who is appointed pursuant to the Provincial Government Act. He submitted that section 18 of The Crown Proceedings Act does not apply as this is not a claim against the Crown.
28. Applying the principles set out in American Cynamid Co v Ethicon Limited, there is clearly a triable issue. That is whether the Notice of Motion is valid. The Claimant is entitled to have that tested. That can be done at short notice. If Standing Order 108 has not been complied with then the Notice would not be valid and the Assembly would not be entitled to debate the issue.
29. The question then is whether damages can be adequate remedy. Clearly in the circumstances of this case damages cannot adequately compensate the Claimant if the claim is made out. Where then does the balance of convenience lie? The Assembly members who have travelled to Taro have clearly been put to expense but the debate is for an extraordinary meeting, notice of which is required to comply with the standing orders. The balance of convenience lies in the claim for judicial review being heard as a matter of urgency.
30. The Court will make time available during the week commencing 12^th February 2024 to hear the claim for judicial review. In order for that hearing to be meaningful the status quo would need to be maintained in the interim. To proceed with a meeting that the Claimant argues has been called with an invalid notice would not be in the interest of justice when the claims can be heard within a week.
31. The Court then makes a declaration that the hearing of the Motion of No Confidence is not to take place until after the Court has heard the claim for judicial review and the court has ruled on that claim. The Court will hear from counsel and fix a date next week to hear the claim.
32. The Court will not be in a position to determine whether or not the notice complies with Standing Order 108 until the claim has been heard. In these circumstances the cost of the application are costs in the cause.

By the Court
Hon. Justice Howard Lawry
Puisne Judge