The concerns raised by Mr Sweetman and Mr Nand are justified. Mr Tabu is obviously aggrieved that his decision has been upset by the Fiji Court of Appeal. But he is no longer a party to these
proceedings. He does not say that the Applicant has authorised him to file his affidavit. Nor does he say on whose behalf he has
filed the affidavit. In an obvious endeavour to justify his decision he has delved into legal arguments and also into his thought
processes as to how he came to reach the decision he did as the Registration Officer at the material time.
Bearing in mind that Mr Tabu is not a party to these proceedings a substantial part of his affidavit is, in my view, either irrelevant,
inappropriate or objectionable. I, therefore, propose to ignore all those paragraphs dealing with legal arguments, his thought processes
and his attacks on the Supervisor of Elections. Indeed I order paragraphs Nos. 11, 12, 13 and 15 all of which in one way or other
question Mr Apted's integrity, to be struck out. I shall, however, take cognisance of only those parts which are factual in nature
and at the same time relevant to these proceedings.
Written submissions
Both parties have filed written submissions and have also tendered oral arguments.
Some of Mr Matebalavu's submissions which merit or require consideration can be summarised as follows -
(a) That the appeal pending before the Supreme Court is of great public importance to the Fijians and other races in Fiji.
(b) That the appeal process ends only on final adjudication by the Supreme Court, and therefore effect should not in the meantime
be given to the Court of Appeal judgment.
(c) That although the appeal does not operate as a stay, several factors militate against the execution of the FCA judgment (he enumerates
14 such alleged factors).
(d) That the appeal, if successful, will be rendered nugatory if the stay is not granted (Wilson v Church(2) (1879), 12Ch.D. 458, 459 (Court of Appeal). On the other hand no prejudice or irreparable harm will be suffered by Mr Ah Koy if the
stay is granted.
(e) Execution would destroy the subject matter of the appeal - Emerson and Ind Coope (1886)55 L.J. Ch 905.
Mr Matebalavu further submitted that whilst it is true that Mr Ah Koy's name has been restored to the Fijian roll he contends that
it has been done unlawfully. He further submits and that it is within this Court's power to have Mr Ah Koy's name removed pending
the decision of the Supreme Court.
Respondent's preliminary contention
Mr Sweetman in his written submission has dealt with each of Mr Matebalavu's arguments seriatim. It is his preliminary contention
that there can be no stay order in respect of declaratory judgments. He deals with the effect of the Court of Appeal judgment as
follows -
'The Judgment of the Fiji Court of Appeal consists of two declaratory Orders. The judgment is not of a coercive nature and accordingly
the Rules relating to Stay of Execution have no bearing on it. In his work "Declaratory Orders" Young states at p.216 of
the effect of a declaratory Order:-
"The effect of the Court's Order is not to create rights but merely to indicate what they have always been, see the decision
in Chapter 1. Because of this, if an appeal is lodged against a declaratory Order, conceptually there can be no stay of proceedings.
Thus, if it is held that the decision of a licensing authority is void and accordingly the licenses issued are null and void, there
is no precedence whereby the Court can validate those licences pending the hearing of an appeal."
In Chapter 1 he states; "The word "declaratory" is used in opposition to the word "executory", executory
orders being court orders which are enforceable by execution.
In the present appeal the Court has made two declaratory orders stating what are the rights of the Respondent. Those rights cannot
be removed, or disregarded, pending an appeal to the Supreme Court by the other party. There is nothing to stay. The Respondent is
already on the electoral roll of Fijians established under S 41(2) of the Constitution and is entitled to be there unless and until
the only Supreme Court, the Supreme Court, holds otherwise. There is no power on the present application to make an Order removing
the name of the Respondent from the Fijian Roll.'
I agree that in general a stay order cannot be made in respect of a declaratory order because there is, so to speak, nothing to stay.
Whilst, therefore, it is true that conceptually there can be no stay order against a declaratory order nevertheless every such order
should be considered in the light of its own nature and the facts and circumstances surrounding it. Traditionally it has been the
invariable practice for the state, public officers and public authorities to take cognisance of declaratory orders and act accordingly
without the necessity of any additional coercive orders. For the present purposes it is important to note that Regulation 5(d) of
the Electoral (Registration) Regulations 1991, places a duty on the Supervisor of Elections to "take all necessary steps to
ensure that all qualified applicants are placed on the appropriate roll." Regulation 29 of the Electoral (Registration) Regulations,
1991 adequately cover the Supervisor's powers to revise the electoral roll and reinstate a name on the appropriate roll. The Supervisor
was, therefore, perfectly justified in taking cognisance of the Court's declaratory orders and giving effect to them by placing Mr
Ah Koy's name on the Fijian roll. Similarly the undertaking given to the High Court by the Solicitor-General that the Supervisor
of Elections will take congnisance of the Court's declarations is also understandable. One could argue with some justification that
there was an implied coercive element in the declaratory orders if they are viewed in the light of the Electoral Regulations and
the traditional practice. In these circumstances I do not think it would be appropriate for me to dismiss this application on the
preliminary point raised by Mr Sweetman.
Consideration on merit
I, therefore, propose to deal with the application on merits.
Questions of public importance
Whilst the pending appeal undoubtedly involves a question of great public importance of a constitutional nature, the fact is that
unless and until the Supreme Court overturns the Court of Appeal decision, that decision must stand and it binds the parties to the
proceedings. Furthermore, no new questions of law appear to have been raised in the appeal. Orderly functioning of democracy depends
on the relevant authorities taking cognisance of and giving effect to Court Orders be they executive or declaratory in nature. Unless
a case is made out to the contrary (and the onus is on the Applicant to show that exceptional grounds exist) the successful party
must be allowed to enjoy the fruits of his success. (See: The Annot Lyle [1886] UKLawRpPro 31; (1886) 11 P.D. 114, p116, C.A.; Monk v Bartram [1897] UKLawRpKQB 19; [1897] 1 Q.B. 346.)
Process of appeal
As pointed by Mr Sweetman the process of appeal ends at each stage and I would add that it is for this reason that Rule 34(1)(a)
of the Court of Appeal Rules states -
"34,-(1) Except so far as the court below or the Court of Appeal may otherwise direct-
(a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below;"
Competing considerations
I agree with Mr Matebalavu that Section 12(b) of the Supreme Court Decree 1991 gives wide powers to a Court of Appeal judge to make
orders and give directions in the interests of justice in respect of any appeal pending before the Supreme Court.
Likewise Section 20(f) of the Court of Appeal Act gives power to a single judge "to stay execution or make any interim order to prevent prejudice to the claims of any party pending
appeal." The test here is a determination of which of the two parties will suffer the greater harm or prejudice from the granting
or refusal of an interim stay pending determination of the appeal on merits. A balancing of conflicting considerations is required,
between the underlying principle that a litigant is entitled forthwith to the fruits of the judgment in his favour and any obvious
injustice to the other party in refusing a stay where such refusal will render his appeal nugatory. A similar test can be applied
here by a single judge when dealing with any application under Section 12 of the Supreme Court Decree 1991.
Mr Matebalavu's contention that the appeal will be rendered nugatory has no validity. The Respondent is now on notice and if the
appeal is successful he will have to bear all the consequences that flow from the Supreme Court's decision. In the meantime his basic
constitutional rights ought not to be denied him by entering into the realm of speculation and ignoring what is certain. What is
certain is that 3 Court of Appeal judges have unanimously ruled in his favour. The balance of convenience clearly dictates that the
Respondent's basic constitutional rights should not be interfered with albeit temporary. Indeed any such interference can and may
render the exercise of his constitutional rights nugatory. Clearly, therefore, the Respondent will suffer the greater harm or prejudice
if this application is granted. On the other hand there will be no obvious injustice to the Applicant if this application is refused.
Destruction of subject-matter of appeal
The submission that unless a stay is granted the subject-matter of the appeal will be destroyed is clearly misconceived.
The subject-matter of the appeal is the issue relating to the Respondent's status and his right to be on the Fijian roll. This subject-matter
will not disappear or be destroyed if the stay is not granted. As pointed out by Respondent's counsel all the cases on this topic
deal with coercive judgments where money or property would pass from one party to another and possibly be lost or become irrecoverable
on a successful appeal. Such is not the case here.
Conclusion
Having considered all the material before me and bearing in mind the submissions made, I have no hesitation in holding that a case
for a stay order has not been made out. Indeed the interests of justice require that no such order be made. Consequently this application
is dismissed with costs to the Respondent.
Sir Moti Tikaram
Acting President, Fiji Court of Appeal
Suva
5th January, 1994.
ABU0023D.92S
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJCA/1994/1.html
