[10] As leader of the opposition, Kilei wrote to the governor-general on 10 May 2003 advising that he commanded the support of a majority of the members of parliament and they were ready to form a government.
On 20 June 2003, Kilei commenced an action in the High Court of Tuvalu seeking order regarding the appointment of a speaker and the calling of parliament.
[12] On 6 August 2003 the High Court declined to make the declaration that the prime minister must resign; however the Chief Justice delivered directions as to how the governor-general should proceed to take any action the governor-general considers to be appropriate under Section 116(1) of the Constitution of Tuvalu, acting in his or her own deliberate judgment, rather than as advised by the Cabinet of Tuvalu.
On 9 September Sopoanga arranged the appointment Faimalaga Luka as governor general, depriving the opposition of its crucial one-seat majority and triggering the 2003 Nukufetau by-election.
The winner of the October by-election, Elisala Pita, joined the government's benches, enabling it to survive a while longer.