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Qalo v Qaloboe [2003] SBCA 4; CA-CAC 004 of 2003 (16 May 2003)

IN THE COURT OF APPEAL OF SOLOMON ISLANDS

Civil Appeal Case No. 004 of 2003

JACKSON QALO
Appellant

-v-

SHAKESPERE QLOBOE, SIMIONE KEBAKU,
MAEKA LEOKANA, TIMMY PIKAKAJI AND BOSEPOQE
Respondents

Before: Kabui, J.

Date of Hearing: 15^th May 2003
Date of Ruling: 16^th May 2003

Mr G. Suri for the Appellant
Mr P. Tegavota for the Respondents

RULING

(Kabui, J.): This is an application by the Appellant for an order to stay further proceedings in Civil Case No. 283 of 2002 or of execution of the judgment of the High Court delivered on 31^st January 2003. It also seeks an order to stay the application by Summons filed by the Respondents on 18^th March 2003. This application is brought under rule 11 (5) of the Court of Appeal Rules, 1983. Rule 5 states-

"...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 proceedings pursuant to a decision of the High Court; and

(b) no intermediate act or proceeding shall be invalidated by an appeal... "

So, a case has to be made out for an order to stay any proceedings or execution of any decision of the High Court. There must therefore be evidence of such circumstances befitting the case at hand. There is however a technical hitch in this application. The affidavit supporting this application was sworn and filed by Mr. Suri, the Solicitor and Counsel for the Appellant and not by the Appellant. I do note that Counsel for the Respondents did not take objection but I think lack of objection was more or less an oversight on his part than anything else. The same happened in R v. Secretary of State for India in Council and Others, Ex parte, Ezekiel [1941] 2 All E. R. 546, In that case, a junior counsel gave evidence on certain aspects of Indian law and then continued to act as counsel in the case without objection from the other side. At page 556, Humphrey's, J. said, -

"...There is a short observation which the other members of the court desire me to make and with which I agree. It has been brought to the attention of the court that, on the hearing at Bow Street, junior counsel on one side was called as a witness to prove certain aspects of Indian law and continued thereafter to act as counsel in the case. No objection was taken to this by counsel on the other side. We think it right to point out that this was irregular and contrary to practice. A barrister may be briefed as counsel in a case or he may be a witness in a case. He should not act as both counsel and witness in the same case..."

In this case, Mr. Suri, as Counsel for the Appellant has substituted himself for the Appellant when he swore and filed his affidavit on 31^st March 2003. He was not the Respondent in the High Court hearing so that, on being unsatisfied with the High Court ruling, has given evidence to support his application. He is incompetent to swear and file an affidavit in the way he did. This being the case, I regard the application for stay as being unsupported by evidence (See Barker v. Lavery [1885] UKLawRpKQB 32; (1884-85) 14 Q.B.D. 769). I reject this application on that basis. That is, no case has been made out for an order to stay further proceeding or execution arising from the High Court ruling made on 31^st January 2003. The application is dismissed. Cost will be cost in the appeal.

F.O. Kabui
Judge