Kamlesh Mansukhlal Damji Pattni v Hon. Attorney General

The Court restated the principles consistently applied in such applications, adopting the formulation in Reliance Bank v Norlake Investments. Both limbs must be satisfied before relief is granted; the Court first addressed arguability and then moved to the nugatory question. Because this twin test governs every rule 5(2)(b) application and binds courts below, it is the central ratio of the ruling and the yardstick against which the motion was measured and found wanting on the second limb.

Counsel for the applicant argued that the learned Judge wrongly and capriciously declined to extend the leave-stay, failing to take relevant factors into account, and that the judicial review proceedings raised fundamental questions on the conduct of statutory commissions of inquiry vis-à-vis the authority of courts and the enforcement of constitutional rights. The Court found the questions prima facie serious, not frivolous but weighty, and fit for full ventilation in the intended appeal. Arguability was therefore satisfied, but that alone did not entitle the applicant to the injunction.

The Court closely examined the order under challenge and found it incapable of execution by any party in any way, probably save only for costs. Following Western College of Arts & Applied Sciences v Oranga, where the judgment under appeal contains nothing, other than an order for costs, to enforce or restrain, the Court of Appeal has no jurisdiction to grant a temporary injunction pending appeal. The threatened arrest and prosecution were also held not directly connected with that order, so the relief sought could not be anchored on it.

The respondent contended that the intended appeal was incompetent because leave had neither been sought nor obtained, relying on Gurdial Singh Dhillon on orders appealable as of right. The Court rejected the contention: all that is required at the rule 5(2)(b) stage is a notice of appeal, leave may be obtained after filing, and the point had already been succinctly dealt with by the Court in Judicial Commission of Inquiry into the Goldenberg Affair v Job Kilach. The competence objection therefore failed.

In response to the applicant's fear that, absent the injunction, he would be arrested, tried, convicted and imprisoned, the Court declined to presume that courts in the country convict without due process or on evidence not lawfully obtained. It further held that the arrest and prosecution sought to be enjoined were not directly connected with the superior court's order of 22nd March 2006, the subject of the intended appeal, and on that basis declined the relief. This reasoning is ancillary to the decisive holding on the nugatory limb rather than the ratio of the dismissal.