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Wale v Governor General [2024] SBHC 81; HCSI-CC 160 of 2024 (6 July 2024)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Wale v Governor General


Citation:


Date of decision:
6 July 2024


Parties:
Mathew Cooper Wale v Governor General, Jeremiah Manele (Prime Minister of Solomon Islands), Attorney General


Date of hearing:
4 July 2024


Court file number(s):
160 of 2024


Jurisdiction:
Civil


Place of delivery:



Judge(s):
Palmer; CJ


On appeal from:


Order:
1. Grant the declaration sought in paragraph 1 of the Claim that the Notice issued by the First Defendant as it relates to the date and time of the date of the election meeting and date and time on which nomination papers are to be delivered to the Governor-General did not comply with the mandatory four days period as set out in paragraph 1(b) of Schedule 2 to the Constitution.
2. The orders sought for consequential relief from paragraphs 2-5 herewith are declined.
3. Costs to be agreed between the parties, failing which orders for costs will be issued therewith.


Representation:
Mr. Gabriel Suri for the Claimant
Mr Primo Afeau for the 1st Defendant
Mr Daniel Damilea (Deputy Solicitor General) and Mr Brenton Pitry for the 2nd and 3rd Defendants


Catchwords:



Words and phrases:


Legislation cited:
Constitution 1978, S 83, S 33, S, 83 (1) and (2), Schedule 2, paragraph 1 (a) and (b)Solomon Islands Courts (Civil Procedure) Rule 2007, r15.9.3, Halsbury’s Law of England (4th Edition, Vol 36 Para 585), R. Cross, Statutory Interpretation (1st Edition)


Cases cited:
Prime Minister v Governor General [1999] SBCA 6, In Re Application by the Minister for Western Provincial Affairs [1983] SILR 141, R v Inland Revenue Commissioners; Ex Parte Knight [1973] 3 All ER 721, Governor-General v Mamaloni; Mamaloni v Attorney-General & The Governor-General [1993] SBCA 1, Ulufa'alu v Attorney General [2004] SBCA 1, Ulufa'alu v Attorney General [2001] SBHC 178, Mamaloni v Attorney General [1993] SBHC 84, Pinner v. Everett [1969] 1 WLR 1266,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case No. 160 of 2024


BETWEEN


MATHEW COOPER WALE
Claimant


THE GOVERNOR GENERAL
First Defendant


AND:


JEREMIAH MANELE (PRIME MINISTER OF SOLOMON ISLANDS)
Second Defendant


AND:


THE ATTORNEY GENERAL
Third Defendant


Date of Hearing: 4 July 2024
Date of Judgment: 6 July 2024


Mr. Gabriel Suri for the Claimant
Mr. Primo Afeau for the 1st Defendant
Mr. Daniel Damilea (Deputy Solicitor General) and Mr. Brenton Pitry for the 2nd and 3rd Defendants

Palmer CJ:

  1. This is an application for declarations under a category C claim filed on the 8th May 2024, six days after the election of the Prime Minister held in Parliament on the 2nd May 2024 by the Governor-General, (“the First Defendant”), pursuant to section 83 of the Constitution and Rule 15.9.3 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (“the Rules”).
  2. The orders sought are:

“Primary Declaratory Relief

1. An order declaring that the date and time for delivery of nomination papers to the 1st Defendant for election of a Prime Minister, namely from Monday 29th April 2024 at 10:00 am to Tuesday 30th April 2024 at 4:00 pm, as specified by the 1st Defendant in his notice dated 29th April 2024 to the members of Parliament (“Election Notice”), did not comply with the mandatory four days prescribed under Schedule 2, paragraph 1(b) of the Constitution.

Consequential Relief

2. An order declaring that the Election Notice dated 29th April 2024 issued by the 1st Defendant was null and void.
3. An order declaring that the meeting of members of Parliament for the purpose of electing a Prime Minister held on 2nd May 2024 was null and void.
4. An order declaring that the 2nd Defendant was not validly elected as Prime Minister under section 33 of the Constitution.
5. Further or other orders as the Court deems meet the circumstances of the case.
6. That the costs of and incidental to this proceeding be paid by the Defendants, jointly and severally, subject to their right, if any, to be reimbursed or indemnified by the Government of Solomon Islands, to the Claimant on indemnity or increased basis.”
  1. It is important to note and set out from the outset that the declarations (relief) sought are based on the provisions (section 83) of the Constitution and rule 15.9.3 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (“the Rules”).
  2. These are set out in more detail herewith:
  3. It is important to note that this provision gives jurisdiction to the High Court to deal with any constitutional questions relating to allegations of contraventions of the Constitution (other than Chapter II), bearing in mind that the provisions of Chapter II relate specifically to the protection of fundamental rights and freedoms of the individual and enforcement of those rights where it is alleged those rights are being or is likely to be contravened in relation to him. At subparagraph 18(2) it sets out in clear terms so that there is no uncertainty about the original jurisdiction that the Court may exercise when dealing with those questions that may be raised.
  4. I will touch on this provision in more detail later when addressing the question of applicability of this provision in the circumstances of this case. Suffice to point out this provision does give jurisdiction to this court to deal with questions and issues of law that may arise in relation to the effect and applicability of constitutional provisions.
  5. The second authority relied on is Rule 15.9.3 of the Rules. I set this out herewith as follows:
  6. These provisions under the Rules allow an applicant to seek inter alia a determination of any question of construction (interpretation) and make a declaration as to his right arising under any written law. There is no issue that the Constitution is part of the written law of Solomon Islands, the only difference being its status as the underlying law on which all other laws are built upon.

The brief background to this Constitutional Challenge.

  1. The facts as set out in essence are not in dispute. These can be summarised herewith as follows.
  2. They relate to the date and timing of the election meeting, and the date and time on which nomination papers were to be delivered to the Governor-General, pursuant to the provisions of Schedule 2 to the Constitution, paragraph 1(a) and (b). Schedule 2 to the Constitution, paragraph 1(a) and (b) provides as follows:
  3. The relevant facts which relate to the election notice issued by the First Defendant and dated 29th April 2024, are set out in more detail in Annexure MW3, attached to the sworn statement of Mathew Cooper Wale filed on the 8th May 2024. The Claimant asserts that there is a mandatory period of four (4) days from the date of the election meeting to the date and time when nominations are to be delivered to the Governor-General.
  4. The election notice sets out inter alia the following relevant dates and time and venue of the election meeting as follows:
  5. At close of the nomination period allowed, two candidates, Jeremiah Manele (nominated by the Coalition for National Unity and Transformation), and the Claimant (Mathew Cooper Wale), nominated by a coalition of four parties, were nominated. There was no other candidate or intending candidate nominated.
  6. When the meeting convened on the 2nd May 2024 at the Chambers of Parliament, after introductory remarks were made by the First Defendant, the Claimant asked three questions. Of relevance, is the question on the meaning and effect of the words “not later than 4 days ... before ...” the date set for the election meeting, and whether it has been breached by nominations having been delivered on the 29th and 30th April 2024.
  7. After this there was a short adjournment to allow the First Defendant consider and determine his responses or answers to those questions.
  8. On resumption of the meeting, the First Defendant made the following response to that question as follows:
  9. After the conduct of the election of the Prime Minister, the Second Defendant received 31 votes and the Claimant 18 votes.
  10. This is the undisputed set of facts which gave rise to the constitutional challenge. I will now set out the questions or issues that have been raised for determination by the Claimant.

ISSUES FOR DETERMINATION.

  1. There are in essence three issues, being, (i) the question of interpretation and breach of the clause “which time shall be not later than four days before the date appointed for the election meeting” in Schedule 2, paragraph 1(b) of the Constitution, (ii) the question of application of the Ouster / Privative Clause in paragraph 10 of Schedule 2 to the Constitution, and (iii) the question of application of the provisions of section 83 of the Constitution and relief sought.
  2. I thank counsel for carefully and succinctly setting out their submissions in writing which has enabled me to take time to consider their arguments before having this judgment delivered.

1ST ISSUE: Determination of the phrase “which time shall be not later than four days before the date appointed for the election meeting.”

  1. The first issue raises the question of interpretation of the clause “which time shall be not later than four days before the date appointed for the election meeting”, as set out in paragraph 1(b) of Schedule 2. I quote this paragraph in full again:
  2. The argument for the Defendants in essence is that this phrase merely means that the time for calling of nominations must not be later than 4 days from the date set for the election meeting. They argue that this phrase fixes the maximum time allowed under the Constitution being four days or less. The Governor-General therefore is able to call for nominations anytime thereafter, whether it is within three days, two days or even one day before the date of the election meeting. They say that he may even make a call for nominations 12 hours (½ a day) before the election meeting.
  3. In his submissions on this phrase, learned Counsel, Mr. Afeau for the First Defendant, submits that the correct interpretation of that phrase relates to the time period for nominations, and not the time period from close of nominations to the date appointed for the election meeting.
  4. He then relied on seven previous election meetings, details of which are set out in a Table at paragraph 4.5, pages 3 and 4 of his submissions, to support his argument that the nomination periods, being from date of opening to close of nomination period, were all less than the four days maximum. He concludes that based on that Table, “it is clear that the only timing that falls within the 4 days expressed in the schedule, is the nomination period. Any interpretation of the 4 days to argue that it is the time between close of nominations and the appointed date, would not reflect the manner in which Prime Minister’s elections have been conducted in six previous elections (2007. 2010, 201, 2014. 2017 and 2019).”
  5. The Second and Third Defendants take the other view that the time period runs from four days before the date fixed for the election meeting. They also maintain the view that the literal and plain meaning should be given to this phrase to arrive at the correct interpretation or conclusion.
  6. In this case, the date and time for which nomination papers are to be delivered to the Governor-General commences or runs from the 28th April thereafter (being the maximum period of four days). Any time thereafter between the 28th April and 2nd May, falls within the period of four days provided for in paragraph 1(b) of Schedule 2. They submit, no error therefore was committed by the First Defendant in his calling, or conduct of the election meeting or the election of the Prime Minister.

The interpretation of paragraph 1(b) of Schedule 2 by the Claimant.

  1. The Claimant on the other hand takes the view that the correct interpretation should be that there is a clear four days period between the date fixed for the election meeting, to the date and time when the nominations are to be delivered to the Governor-General.
  2. In support of his submissions, Mr Suri submits that both the purposive and literal interpretations should be applied to the construction of paragraph 1(b) to arrive at the correct conclusion of that paragraph. He cites in support the case authorities of Prime Minister v. Governor-General[1] for the purposive approach and the case of In Re Application By Minister for Western Provincial Affairs[2] for the literal approach.
  3. In the Prime Minister v. Governor-General case, Mason P. said:
  4. He continued at paragraph 4.2 of his written submissions to point out that the task of the Court is to ascertain the purpose of the legislation (in this case paragraph 1(b) of Schedule 2), by (a) referring to the language of the Constitution, (b) considering the context of the Constitution, and (c) considering the objects of the Constitution, to arrive at the correct conclusion.
  5. In terms of the literal approach, he quoted Daly CJ in the case In Re Application By Minister for Western Provincial Affairs as follows:
  6. In the result there has been a breach committed by the First Defendant in not complying with this mandatory requirement imposed by paragraph 1(b) of Schedule 2 to the Constitution.

Discussion and Decision on the Interpretation of Paragraph 1(b) of Schedule 2 to the Constitution.

  1. I thank Counsel for their learned submissions on this important matter. I note, the question of interpretation of this phrase “which time shall be not later than four days before the date appointed for the election meeting” had not been considered or brought before this Court for interpretation previously, perhaps because it had never been in issue until this occasion. And so this is the first time this phrase has been brought to this Court for interpretation and determination.
  2. As to the jurisdiction of this Court to interpret law, I think it is trite to point out that this is the primary function of this Court to make a final determination on any dispute regarding the interpretation or meaning of any law, including the Constitution and its application.
  3. As to the right of the Claimant to bring this action, that too I think is not in issue apart from the challenges made pursuant to section 83 of the Constitution as to whether “his interests are being or likely to be affected”. Those will be dealt with later in this judgment.
  4. So what is the correct interpretation to this interesting English phrase “not later than four days before the date appointed for the election meeting”?
  5. I note the submissions of learned Counsel Mr. Afeau, at paragraph 1, page 1 of his Supplementary Submissions handed up to the Court at date of hearing, sets out three possible scenarios of time in relation to the interpretation of this phrase as follows:
  6. He submits that in any of those scenarios there has been no breach as the time frame in all runs from a maximum of four days and less.
  7. Counsel did concede however, that there is a fourth possible scenario of time, which the Claimant alleges in this case, that there is a clear four days between the date and time for delivery of nominations, to the election meeting.
  8. I concur with Counsel for their submissions on adopting the purposive and literal interpretation approach with regards to Constitutional provisions.
  9. However, normally the literal and plain meaning approach should be adopted first and only where there is ambiguity or uncertainty, and the purposive approach may assist to reach a meaningful construction of the phrase or term, then can be expanded to take purposive approach into consideration.
  10. In the text “Statutory Interpretation”[3], the learned Author, Francis Bennion sets out at page 425, section 195, the Plain Meaning Rule. I quote:
  11. In his commentary, he continued:

And further on at page 426, quoting Lord Reid in the case Pinner v. Everett[5], on the “plain meaning rule”, who said:

“In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context in the statute. It is only when that meaning lead to some result which cannot reasonably be supposed to have been the intention of the legislature that it is proper to look for some other possible meaning of the word or phrase.” (Emphasis added).
  1. In applying the plain meaning rule to this phrase, we can ask what is the natural or ordinary meaning in its context in the Schedule? Is the legal meaning plain in this instance?
  2. I thank Counsel for taking the time to carefully analyse the numerous possible interpretations to this phrase to assist this court in reaching the right or correct determination as to its interpretation. It is my respectful view that not only the grammatical context should be taken into account but the general structure and context in which the phrase has been inserted is to be considered.
  3. On one hand, on a plain, ordinary and common sense approach being taken and reading of this phrase, there could only be one plausible interpretation or conclusion attributed to that phrase and not as many, as has been suggested by Counsel. There should not therefore be unnecessary confusion about this simple English phrase, bearing in mind that it was coined and enacted by the Framers of the Constitution in 1978, some 46 years ago and has lasted us until this 46th year of our independence anniversary.
  4. When the general structure and context in which the phrase has been inserted is taken into account, it is my respectful view that the construction of this phrase becomes plain and obvious.
  5. The contextual structure means that any reading must start or commence from the beginning as intended and not any other way. When that is done, we will arrive at the right conclusion or interpretation. Starting any other way will yield the wrong results or conclusion.
  6. So where is the starting point? When the Governor-General issues a notice to each member, he first of all must set the date, place and time of the election meeting; that is the first necessary step. The second thing he does, is set the place at and the date and time, on which nomination papers are to be delivered to him, but before he does that, the next phrase dictates the time frame in which those dates and time are to be settled. It states, “which time shall be not later than four days before the date appointed for the election meeting”.
  7. So what “time” is being referred to here? It is the date and time on which nomination papers are to be delivered to the Governor-General. The next part “shall be not later than” fixes a time limit or frame within which that time is to be determined.
  8. So the next relevant question to ask is the meaning of the words “not later than”, what do they mean. The best way in my respectful view to understand the meaning of this phrase is to consider what it is not, or, to contrast it with its opposite, which is “not before than”. Again these are common English expressions often used to fix or set a definite time limit or time frame on which an event is to occur, whether before that time, or after that time.
  9. So if in this case we are first to remove the words “not later than” from that sentence, that sentence will read, “which time shall be four days before the date appointed for the election meeting”. The effect as can be seen will be to fix a maximum time but no minimum and so it can be anytime as well after that four days as advocated by counsel for the Defendants.
  10. If we are to contrast it with the use of the opposite expression “not before than”, what does that mean? The Court often uses similar expressions, when fixing a time for hearing of a matter and sometimes uses the expression “not before than” 11:00 am, for instance.
  11. So what does that mean? It simply means that a matter listed for hearing not before than 11:00 am, will be heard anytime thereafter, but not before 11:00 am. So counsel can expect that their matter will not be heard any time before 11:00 am, so it simply means be in court from 11:00 am thereafter.
  12. If we now apply this to the words “not later than” 11:00 am, it simply means that the matter will be heard and deliberated on before that time, but not later than that time, so counsel should be in court well before that time. If they come after 11:00 am, it is too late.
  13. So if we transition those concepts and apply them to Paragraph 1(b), the time fixed being, “four days before the date appointed for the election meeting”, what it translates to is that there shall be a gap of four (4) clear days, between “the date appointed for the election meeting” and “the date and time on which nomination papers are to be delivered to the Governor-General”. That is the only logical, common sense and plain meaning that can be conferred on that phrase. The effect being that nomination papers can be delivered any time before that time, (four clear days before), but not after.
  14. Mr. Pitry of Counsel for the Second and Third Defendants in his submissions sought to rely on the phrase “within” as equating to the phrase “not later than” used interchangeably by Russell LJ in the case R. v. Inland Revenue Commissioners; Ex parte Knight[6]. That case however can easily be distinguished from the context in which the words were used, being “that proceedings may be commenced at any time within three years from the final determination of the amount of tax covered by the assessment.”
  15. Russell LJ at page 727 in his explanations on the meaning of that word (within) stated as follows:
  16. The use of the phrase “not later than”, in the context of the use of the word “within” three years, is entirely consistent with the plain and ordinary meaning, and usage of that expression, meaning that the cut off period or date, is the three years limit and not beyond.
  17. On the other hand, while that case may be distinguished in the use of the word and the phrase in its context, it supports in my respectful view, the case for the Claimant in the application of the use of the phrase “not later than”, where the time limit to be applied as in this case, is the gap (period) of four days before the date appointed for the election meeting, and therefore being consistent with the time limit of “not later than” three years. That is, just as proceedings cannot be commenced beyond or after the three years’ time limit, in this case, the nomination papers cannot be delivered to the Governor-General, anytime beyond or after that four day time period or gap. The word “within” is not interchangeable in the context of this case as the effect or outcome obtained will be different and result in a wrong conclusion.
  18. In addition, if we are to use the same Table set out in paragraph 4.5, pages 3 and 4 of Mr. Afeau’s submissions, it is equally clear that in previous election meetings, there has been a clear gap of four days between the date of election meeting, to the date and time when nomination papers are to be delivered.
  19. For instance, in 2007, the date for nominations to close was Saturday 15 December 2007, while the date fixed for the election meeting was Thursday 20 December 2007, a gap of more than 4 days. In 2010, the date nomination closes was Friday 20 August 2010, and the date fixed for the election meeting was Wednesday 25th August 2010, again a gap of more than 4 days. The election in 2014, the closing date for nominations was Friday 5th December 2014 and election meeting took place on Tuesday 9th December, a gap of 4 days. In 2017, closing date was Friday 10th November and election meeting on Wednesday 15th November, a gap of 5 days. In 2019, closing date was Thursday 18th April and election meeting held on Wednesday 24th April, again a gap of more than 4 days.
  20. The only exceptions occurred in two election meetings, one in 2011 with a gap of 3 days and this election meeting, with a gap of only 2 days.
  21. Finally, if one takes the time to look at the National Parliament Page on Facebook, which I take judicial notice of, this is what is placed on that page as follows. It is headed “What happens next?” In small print I quote:

It then goes on to make preliminary remarks about the process, quotes Paragraph 1 of Schedule 2 to the Constitution, and then makes explanatory notes, which is of interest as follows:

“The above provision reflects the true nature of the meeting to elect a Prime Minister.
  1. First, it is to be called by His Excellency, the Governor-General who also gives the necessary notice for the election meeting.
  2. Secondly, the notice period is only four clear days for the election meeting.
  3. ....” (Emphasis added).”
  4. The only reason for including this is to highlight the point that even the National Parliamentary page on Facebook, which I guess many can access with internet connectivity, recognises this gap of clear four days from the date of election meeting to the date when nominations are to be delivered to the Governor-General.
  5. This question or issue can now be answered in the affirmative in favour of the Claimant.

2ND ISSUE: Whether Paragraph 10 of Schedule 2 to the Constitution applies in the circumstances of this case.

  1. This is the second important issue for determination for it will determine whether any relief sought, in the form of declaratory orders should be granted or not. If paragraph 10 applies, that virtually is the end of the matter for the Claimant and no relief will be available. If not, then the next issue for determination is the application of section 83 of the Constitution as to whether his interests are being or likely to be affected by the contravention of paragraph 1(b) to Schedule 2 of the Constitution.
  2. As to any consequential right to relief that will however be subject to the provisions of section 83(1) of the Constitution, the provisions of which in turn are subject to paragraph 10 of Schedule 2.
  3. Paragraph 10 and 11 of Schedule 2 of the Constitution reads:
  4. In his submissions Mr. Suri submits that an error of law had been committed by the First Defendant as a result of failing to comply with the requirement set out in paragraph 1(b) and thereby this court should intervene and grant the consequential declaratory orders sought.
  5. He relies on numerous court cases to support his view, notably the cases of the Governor-General v. Mamaloni[7], and Ulufa’alu v. Attorney-General[8], which endorses the view that any error, such as one in which the decision amounts to a nullity, a decision given in bad faith, a decision made when a tribunal has no power to make, a failure to comply with requirements of natural justice, misconstruction of law as to jurisdiction, (the list being not exhaustive) may open the door for the Court to intervene even if there is an ouster clause in place.
  6. In Ulufa’alu v. Attorney-General, the Court held that unless it can be shown that “there has been an error of jurisdiction or breach of natural justice or some misdirection which makes inapplicable the ouster which the Constitution imposes in paragraph 10”, the Court will not intervene.
  7. In his submissions (paragraph 4.4 in reply), on this point, Mr. Suri graciously acknowledges that the question whether the ouster clause would apply will depend so much on its view of the error committed in paragraph 1(b), that if their view that it amounts to a misconstruction of and misdirection and therefore an error of law that goes to jurisdiction, the ouster clause will not shield the error. On the other hand if it is an error of law within jurisdiction, then the ouster clause will apply.
  8. In his submissions on this point, Mr. Afeau endorses the view taken by the Courts in Ulufa’alu v. Attorney-General (ibid), Ulufa’alu v. Attorney General[9], and also Mamaloni v. Attorney-General[10], that the Claimant would have to show that the First Defendant had committed a jurisdictional error of law in performing his functions under Schedule 2 of the Constitution for the Court to intervene and review the decision of the First Defendant, notwithstanding paragraph 10.
  9. He submits that as such in this case no error had been committed and therefore the Court cannot intervene.
  10. As to the question whether the points raised by the Claimant for clarification at the election meeting were to be considered as a dispute, he submits that the First Defendant had already responded and accordingly paragraph 10 would apply and the Court’s jurisdiction to intervene is ousted by that clause as well.
  11. The Second and Third Defendants also take the view that the First Defendant had acted within his powers and therefore had not committed any error that would warrant any intervention by the Court. In so far as any dispute is concerned, he had also responded to them and therefore the ouster clause would also apply in the circumstances.

Discussion and Decision on Paragraph 10 of Schedule 2.

  1. Schedule 2 to the Constitution is aptly described by learned Counsel Mr. Afeau in his Supplementary submissions dated 4th July 2024, as a code for the election of the Prime Minister. It is self-contained with the Governor-General given the full power and authority to administer, including resolving any queries and disputes arising thereunder. Paragraph 10 of the Schedule gives the Governor-General the power to determine any disputes arising and his determination to be final and conclusive and cannot be questioned in any proceedings whatsoever.
  2. The only exception as highlighted in the case authorities, where the Court can review a decision of the Governor-General is where he has acted outside his powers, ie. committed a jurisdictional error of law.
  3. This simple but carefully crafted piece of legislative drafting, bearing in mind, time being of the essence, relates to the exercise of a crucial role in having the leader of the Executive Arm of Government elected or chosen promptly.
  4. And so while the process for the election of the Prime Minister is meticulously prescribed to assist the Governor-General in that function, it also seeks to ensure he is adequately equipped and endowed with the necessary powers to carry out that task efficiently and effectively, with minimum delay and interferences, for the sake of peace and stability in the country, bearing in mind that this can be a time fraught with disturbances, civil unrest and instability, and criminal activities, as has been experienced in this country before. This is not unique to Solomon Islands but many countries also have had their share of grievous disturbances and unrest during such times.
  5. The Constitution thus vests on him the exercise of much power to enable him resolve any issues or disputes that might arise, with immediate effect.
  6. This brings me next to consider the effect and impact of paragraph 10 to the whole process of election of the Prime Minister.
  7. It is my considered view therefore that paragraph 10 must be given liberal, wide and generous construction regarding any disputes or matters that may arise during the process of election of the Prime Minister.

Issue of Error of Law

  1. The next crucial issue for determination in this case is whether the error or breach committed amounts to an error of law that goes to jurisdiction (Claimant’s view), or whether it is an error of law within jurisdiction (Defendants’ views). Does the error pierce the veil shielding the powers of the Governor-General from being interfered with or not?
  2. I have thought carefully over this issue, for it will directly impact the question of relief sought by the Claimant in this case. I am unable however, to accept the Claimant’s submission that it amounts to a jurisdictional error of law, or an error that goes to jurisdiction, and therefore nullifies the actions of the First Defendant.
  3. In my respectful view, there is a fine distinction in the exercise of the First Defendant’s power as it relates to the issue of resolution of any dispute that might arise, as opposed to the error committed in the course of the calling of the election meeting.
  4. That power to call the meeting is not in issue, for he (the First Defendant) does have power to do so, issue notices to all members, determining the venue of the meeting, the date and time of the election meeting, and the date and time when nomination papers are to be delivered to him.
  5. What is challenged is that during that process he had erred by not ensuring that there was a period of time of four (4) clear days, between the date and time when nominations are to be delivered, and the date and time of the election meeting. In this instance, there was only a time period of 2 days and not the prescribed period of 4 clear days.
  6. In my considered view, this is an error within jurisdiction and not a jurisdictional error that is fatal to the election process, results in a nullity of all subsequent processes and warrants an intervention by this Court.
  7. In determining the time period, it is obvious he has made a wrong decision and reached a wrong conclusion on the question of construction of paragraph 1 (b) whether through wrong advice or confusion as to the true and correct meaning of paragraph 1(b).
  8. In any event, it is my finding that such error is one committed within jurisdiction and falls squarely on all fours within the auspices of the process for election of a Prime Minister. He erred as to the mandatory time period fixed under paragraph 1(b), however, that error did not affect his jurisdiction to issue notices, convene and conduct the election meeting. While his determination was erroneous, that did not go to jurisdiction and render the process or election a nullity.
  9. On that basis, the veil of the Ouster clause was not pierced and cannot be interfered with by this Court.
  10. But even if that were not the case, the subsequent events which occurred in my respectful view settled the matter once and for all and invoked or enlivened the application of the ouster clause.
  11. That clause in paragraph 10, refers to any disputes that might arise in relation to the calling or conduct of any election meeting or the election of the Prime Minister. I quote:
  12. In my respectful view, the word “dispute” must be given a broad, generous and liberal construction, and so it can include, any issues that may be raised, questions, queries, objections, disagreements, referrals for determinations etc. The Australian Oxford Dictionary, (5th Edition,), defines the word dispute as follows:
  13. It is not in dispute that before the election for the Prime Minister was conducted and when opportunity was given after a short briefing was provided by the First Defendant, the Claimant posed three questions for the First Defendant.
  14. I am satisfied the three questions posed by the Claimant, in particular the third question, after the First Defendant had made his introductory remarks at the election meeting, clearly amounted to a “dispute” and which activated the powers of the First Defendant as set out in paragraph 10.
  15. The First Defendant took a short break to consider the questions before issuing a written decision as set out herewith in relation to the third question. I quote:
  16. Much argument has been put forward to suggest that the decision made by the First Defendant was not made in his own deliberate judgment pursuant to paragraph 11 of the Schedule. However, the important point to note pursuant to paragraph 10 is that once a dispute, as has occurred in this case, that activates the power of review of the Governor-General under paragraph 10 and he is obliged to make a determination therewith. That he has promptly done that is not in issue and the election meeting proceeded to conclusion therewith, with the Second Respondent being declared as the winning candidate for the Prime Minister’s post. Once that paragraph is activated and a determination has been issued by the First Defendant, the shield of the ouster clause is automatically raised.
  17. There is no issue raised challenging his role to make a determination under paragraph 10 and I am unable to find any evidence that might suggest that somehow his decision was invalid. Any suggestions that the decision was a nullity because it was not made in his own deliberate judgment I find to be based on mere speculation.
  18. The First Defendant is entitled to consult, discuss, seek advice from anyone, including as has happened in this instance, which is not denied, the Attorney-General and his Private Secretary, and he cannot be assailed for doing so, especially in pursuit of the exercise of his review powers to make a determination in his own deliberate judgment.
  19. I am unable to accept that even if there had been the fact of consultation with the Attorney-General that it amounts to an error of law that usurps his power to review the dispute and make a determination in his own deliberate judgment.
  20. I am satisfied there is no evidence whatsoever to suggest that the decision made by him was a nullity or the exercise of that power was invalid, or so tainted to affect his determination, so that it amounted to no determination and that this court should interfere. No error whatsoever has been shown that his purported exercise of power to make a determination amounted to a jurisdictional error.
  21. The effect of his determination therewith was to dismiss the issue raised, uphold his earlier notices (directions) and therewith to proceed with the meeting as scheduled. I am satisfied his action in doing so, was done in the exercise of his own deliberate judgement, (paragraph 11 of Schedule 2) and elevates it beyond the reach of this court (paragraph 10 of Schedule 2). Put simply, his decision is simply unassailable and beyond inquiry or review by this Court.
  22. As stated by the Court of Appeal in the case of Ulufa’alu v. Attorney-General[11], at paragraph 35, “It is perfectly intelligible why the Constitution should have vested the power of review in the Governor-General under paragraph 10 of Schedule 2.” This power of review has been deliberately and purposely vested in him, not the court, to ensure that this crucial process of election of the head of the Executive Arm of Government is not hijacked or unnecessarily delayed by anyone, unless a jurisdictional error of law has been committed or shown to have occurred.
  23. I am satisfied in the circumstances of this case, that the election proceedings in this case did not amount to any nullity and reject any suggestions of any error of law that goes to his jurisdiction being committed.
  24. That being the case, the claim for declaratory relief will have to be dismissed.

3RD ISSUE: The Application of section 83(1) of the Constitution.

  1. This third issue can shortly be disposed of. It being subject to the application of paragraph 10 to Schedule 2, having ruled that paragraph 10 applies, the door to relief under that section also is closed off.
  2. I quote this section in full herewith:
  3. It is important to note that this section in the Constitution allows any person who alleges that his rights under any provision of the Constitution (other than Chapter II) had been contravened and that his interests are being or are likely to be affected by such contravention, to bring an action to the High Court for declaration and relief.
  4. The section purposely opens with a limitation clause “subject to”, indicating that the rights to come by that section may be restricted if, as in this case, the ouster clause in paragraph 10 of Schedule 2 enlivened.
  5. That being the case, as earlier mentioned, the rights for relief for the Claimant closed off.
  6. In any event for arguments sake, which has been amply set out in the submissions of learned Counsel, Mr. Suri, seeking to impress the point that due to the failure of the First Defendant to comply with the mandatory four days’ time period that his client’s interest had been unfairly impacted upon by not being able to continue with lobbying and negotiations to secure sufficient numbers to be able to form the next Government.
  7. While the argument has a lot of common sense merit to it as to his Client’s interests being or likely to be affected, I am unable to accede to it for the following reasons. First, his right to be nominated (a relevant right in this instance) to be one of the candidates for the Prime Minister’s post had not been denied or affected. It would be different I guess if someone were to come to Court and say that because of the breach of that time limit, that he/she was denied the right to have his/her name put forward as one of the candidates for nomination for the post of Prime Minister.
  8. In this instance, apart from his mere assertions, there is no evidence to suggest or show that he had the numbers or that there was any indications of anyone on the verge of joining his group at that time. The harsh reality of the situation indicates that time in this instance, even if accorded would not have made any difference. To the contrary, while the evidence shows that he had twenty one (21) persons in his camp as they entered the Parliament Chambers for the election meeting, the results showed that only eighteen (18) voted in his favour, with three (3) in his group voting for the candidate of the opposite group.
  9. I am not satisfied accordingly as well that the threshold of his interests are being or are likely to be affected not achieved and accordingly this claim for declaratory orders and relief under section 83(1) of the Constitution should also be dismissed herewith.

Orders of the Court:

  1. Grant the declaration sought in paragraph 1 of the Claim that the Notice issued by the First Defendant as it relates to the date and time of the date of the election meeting and date and time on which nomination papers are to be delivered to the Governor-General did not comply with the mandatory four days period as set out in paragraph 1(b) of Schedule 2 to the Constitution.
  2. The orders sought for consequential relief from paragraphs 2-5 herewith are declined.
  3. Costs to be agreed between the parties, failing which orders for costs will be issued therewith.

Sir Albert R. Palmer CBE
The Court.

[1] [1999] SBCA 6; CAC No. 14 of 1998 (1st September 1999)
[2] [1983] SBHC 27; [1983] SILR 141 (7th June 1983), Daly CJ.
[3] Statutory Interpretation by Francis Bennion, 3rd Edition, Butterworths, London, Dublin and Edinburgh, 1997
[4] R. Cross, Statutory Interpretation (1st Edition), p 1
[5] [1969] 1 WLR 1266 at 1273.
[6] [1973] 3 All ER 721
[7] CASI-CAC No. 1 and 3 of 1993
[8] [2004] SBCA 1; CASI-CAC 15 of 2001 (2nd August 2004)
[9] SBHC 178; HCSI-CC 195 of 2000 (9 November 2001)
[10] [1993] SBHC 84; HCSI-CC 290 and 291 of 1993 (21 September 1993)
[11] [2004] SBCA 1; CASI-CAC 15 of 2001 (2nd August 2004)

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