HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 179 of 1994

JOHN OUOU

-V-

THE SPEAKER OF MAKIRA ULAWA PROVINCIAL ASSEMBLY

High Court of Solomon Islands
(Muria, CJ.)

Hearing: 13 July 1994
Judgement: 22 July 1994

A. Radclyffe for the Petitioner
R. Teutao for the Respondent

MURIA, CJ:	This is a petition brought by John Ouou, the Petitioner pursuant to s.17(2) of the Provincial Government Act (as Amendment) 1981 against the Respondent, Speaker of Makira and Ulawa Province. The petition arose as a result of the decision made by the Respondent disqualifying the Petitioner from being a Member of the Provincial Assembly and declaring his seat vacant under s.16(1)(d) of the Act as from 27 May 1994. The Petitioner has now sought the following orders from the Court:

(a)	that the Respondent's declaration and disqualification of the Petitioner be declared null and void.

(b)	that the Petitioner's is entitled to all wages, allowances or other payments withheld as a result of the disqualification;

(c)	that the Respondent pay exemplary damages to the Petitioner on the grounds of his wilful refusal to withdraw the disqualification even though he had been advised it was unlawful.

At the hearing on 13 July 1994, the Respondent appeared in person and sought the court's indulgence to have the matter adjourn to enable him to seek legal advise and assistance. The Court granted him the adjournment sought.

On 14 July 1994, this matter was heard and Mr. Reginald Teutao appeared as counsel for the Respondent. Having refused another adjournment which Mr. Teutao sought, the matter was heard.

In the course of the hearing, Mr. Teutao did not seek to persuade the court otherwise of the legal position of the parties in this case. With his usual acumen, counsel very properly conceded the legal position to be in favour of granting the orders sought in paragraphs (1) and (b) in the petition in that section 16(1)(d) of the Act does not apply to the Petitioner. This is clearly correct since the Petitioner at the time the Respondent disqualified him and declared his seat vacant was not "under a sentence of imprisonment" as provided under the section.

For the sake of completeness, I set out sections 16(1)(d) and 17(1)(4) hereunder. Section 16(1)(d) provides:

"16.	(1)	A person shall be disqualified from membership of a Provincial Assembly if, the person -

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(d)	is under sentence of death imposed by a court in any part of the world, or is under a sentence of imprisonment (by whatever name called) for a term of, or exceeding, six months, other than a sentence in lieu of a fine, but including a suspended sentence, imposed by such a court or substituted by a competent authority for some other sentence imposed by such a court."

and section 17 is as follows:

"17.	(1)	Where a member of a Provincial Assembly is disqualified under section 16, the Speaker shall by written notice declare the seat of the member as vacant, and his appointment shall thereupon cease.

(2)	A member whose seat has been declared vacant may, within thirty days petition the High Court for relief from the declaration, and the decision of the High Court on such petition shall be final.

(3)	A seat declared vacant under subsection (1), shall remain vacant until the time of filing a petition for relief has expired without a petition being filed, or the petition has been disposed of, or abandoned.

(4)	The validity of any proceedings of a Provincial Assembly shall not be affected by the disqualification of any person from membership of the Assembly."

In this case the Petitioner was convicted of False Pretences and was bound over for one year in the sum of $200.00 to be of good behaviour. That is not a sentence of imprisonment as stated under section 16(1)(d).

In the light of the concession made by Counsel for the Respondent (and as I have said properly made) that section 16(1)(d) did not apply to the Petitioner the Court granted the orders sought in paragraphs (a) and (b) in the petition.

As to the question of exemplary damages sought in para(c), I said I reserved my consideration on that aspect of the case and would give my decision at a later date. That I now do so.

Mr. Radclyffe has argued that this is a proper case for an award of exemplary damages as the Respondent had deliberately ignored legal advice from the Attorney General's office which advised him that section 16(1)(d) of the Act did not apply to the Petitioner and proceeded to disqualify the Petitioner and declare his seat vacant. The action of the Respondent was therefore said to be unreasonable, high-handed and vindictive.

Mr. Teutao, although did not argue that the Petitioner was not entitled to damages submitted that exemplary damages are not warranted against the Respondent in this case. The basis for that submission is that the advice received by the Respondent from the Attorney General's office was misleading and confusing. Counsel added that as a lay man, his client was bound to take the action he took on the strength of the advice from the Attorney General's office. The advice was contained in the memorandum of 16 February 1994 and 27 April 1994. As such Mr. Teutao said, the Respondent should not be penalised by an award of exemplary damages against him.

On the other hand Mr. Radclyffe argued that the letter from the Attorney General's office dated 1 June 1994 addressed to him and copied to the Respondent clearly advised the Respondent to withdraw his decision but the Respondent refused to do so.

Mr Radclyffe's argument begs two questions. The first is: has the Speaker the power to withdraw the declaration once he made it pursuant to section 17(1) of the Act? Secondly, should an award of exemplary damages be granted in this case?

When one turns to the provisions of section 17(1) it is clear that when a member of a Provincial Assembly is disqualified under section 16, the Speaker must declare the seat of that member vacant and his appointment ceases immediately. Subsection (3) states that the seat "shall remain vacant" under the situations described in that subsection. The only way to upset the Speaker's declaration is by a petition to the High Court. He therefore has no power to withdraw the declaration since such declaration flows mandatorily from a disqualification imposed by law. It would be absurd if the Speaker is entitled to withdraw his declaration that a member's seat is vacant while the member is under the law remains disqualified from being a member of the Provincial Assembly.

In this case, the Respondent's refusal to withdraw his decision cannot be said to be faulty.

He had made his decision the consequence of which was that the seat declared vacant "shall remain vacant until the time of filing a petition for relief has expired without a petition being filed or the petition has been disposed of or abandoned." As we have seen, the Respondent should not have disqualified the applicant and declared his seat vacant. But that decision having been taken the only recourse against that decision is that provided under subsection (2) of section 17.

In assessing whether the Respondent has acted unreasonably or with high-handedness or vindictively, the court must also bear in mind the advice given to him by the office of the Attorney General. The advise were given to the Respondent in the memorandum of 16 February 1994, 27 April 1994 and 1 June 1994. The first two were addressed to him while the third was addressed to the applicant's solicitor and copied to the Respondent.

On 10 November 1993, more than six months before making the decision against the Petitioner, the Respondent wrote to the Attorney General's office seeking legal advice on the question of disqualification from membership of a Provincial Assembly. In response to the Respondent's letter, the office of the Attorney General advised, among other things, in paragraph 5 of the Memorandum of 16 February 1994 as follows:

"5.	Strictly, a 'boundover' is not a suspended sentence but is part of a suspended sentence. It is sometimes referred to as the offender entering into a good behaviour bond usually for the same period or more when he would have been imprisoned had it not been for his past good record. As such, we can say that a person who is on boundover has had his sentence suspended therefore falls under the disqualification grounds."

I have not sighted the Respondent's letter of 10 November 1993 but one can safely assumed that in it the Respondent must have sought legal advice on the effect of a "boundover" sentence or order of a court on a convicted person. I hope I do not offend the officer concerned by saying that the form of advice as contained in paragraph 5 of the memo of 16 February 1994 is bad. It is bad because it lacks clarity. It is also not concise and it is confusing and misleading particularly to a non-legal minded person. Perhaps the Respondent did not put clearly all the relevant facts to the officer concerned when seeking advice. But it had been admitted by the officer concerned in his letter of 1 June 1994 that "The Speaker's action was based on advice from these Chambers but the advice was general in nature ...". The second and third paragraphs of that letter are as follows:

"The Speaker's action was based on advice from these Chambers but the advice was general in nature and not specifically for your client's disqualification. Having learnt of the position of your client, I wish to also say that s.16(1)(d) does not apply to your client Mr. Ouou.

By copy, the Speaker is asked to withdraw his disqualification notice to Mr Ouou."

As can be seen by copy of that letter, the Respondent was advised by the Attorney General's office to withdraw his decision disqualifying the Petitioner and declaring his seat vacant, an advice which the Respondent did not follow. In terms of section 17(1), (2) and (3) of the Act, I do not see the basis in law for such an advice. By 1 June 1994, the Respondent had already made his decision and it is not surprising that he chose not to accept the advice to withdraw his decision.

Mr Radclyffe cited the case of Chede & Ors -v- AG CC 127/91 where Palmer J clearly found the police officer's actions to be "unfounded, unreasonable and unlawful" and no reasonable grounds to justify the police action. Clearly that case has a different set of circumstances.

In the circumstances as come to light in this case, I think it is fair to say that the Respondent had sought legal advice well before he made his decision. His decision, as had been shown by the letter of 1 June 1994, was based on the advice from the Attorney General's Chambers although the advice was general in nature. This is rather unfortunate both for the Petitioner and the Respondent but I do not think the Respondent can be said to be acting unreasonably or vindictively or high-handed in such circumstances as I have found in this case.

For the above reasons, I feel the Petitioner can be adequately compensated by an order that he be granted all his entitlements which he would have received as a member of the Provincial Assembly had he not been disqualified together with his entitlement as to costs in this matter. I refuse the Petitioner's application for exemplary damages against the Respondent.

The Respondent however must pay the Petitioner's costs occasioned by this petition.

The order of the Court:

1.	The Respondent's decision made on 27 May 1994 disqualifying the Petitioner from membership of the Provincial Assembly and declaring his seat vacant is hereby declared to be null and void. (granted on 14/7/94).

2.	It is hereby further declared that the Petitioner is entitled to all wages, allowances or other payments withheld as a result of the disqualification. (granted on 14/7/94).

3.	The Petitioner's claim for exemplary damages against the Respondent is refused.

4.	The Respondent must pay the Petitioner's costs of this Petition.

GJB Muria
CHIEF JUSTICE