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Willie v Nicklam [2004] VUSC 86; Civil Case 039 of 2004 (12 March 2004)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 39 of 2004

BETWEEN:

NAKAT WILLIE,
HON. JOE NATUMAN MP
HON. JACKLEEN R. TITEK MP
Claimants

AND:

HON. JIMMY NICKLAM MP
HON. GEORGE WELLS MP
HON. JOHN M. WILLIE MP
Defendants

Coram: Justice P.I. Treston

Mr. Kilu for the Claimants
Mr. Kalsakau for the Defendants

Date of Hearing: 12 March 2004
Date of Decision 12 March 2004

ORAL DECISION ON URGENT INTERLOCUTORY APPLICATION

The Claimants Mr. Nakat Willie, Honourable MP Joe Natuman and Honourable MP Jackleen R. Titek claim and seek against the Defendants, the Honourable MP Jimmy Nicklam, Honourable MP George Wells and Honourable MP John Morrison Willie, a judicial review. The claim for Judicial Review itself seeks first, a declaration that the election results for the election of the Vanua-aku Party Executive Council conducted by the 33rd Annual Vanua-aku Party Congress on 22nd October, 2003 at Lingkarak, Malekula are null and void and of no effect. Second, a quashing order (Writ of Certiorari) quashing the election results for the Vanua-aku Party Executive Council Elections conducted by the 33rd Annual Vanua-aku Party Congress on 22nd October, 2003 at Lingkarak, Malekula. Third, a mandatory Order (a Writ of Mandamus) ordering that the Vanua-aku party shall re-convene another Party Congress as soon as possible and in line with the requirements of the Vanua-aku Party Constitution and established rules and precedents to conduct fresh elections for a new Vanua-aku Party Executive Council. Fourth, and this is one of the matters for which this judgment is being given, an urgent interim prohibition order (a Writ of Prohibition) restraining both the Claimants and the Defendants, by themselves or their agents or representatives from calling any meetings, conducting any meetings, or making or issuing any public announcements, statements, messages or information in the name of or purporting to act on behalf of the Vanua-aku Party or the Executive Council of the Vanua-aku Party, whether through the media or any other means, pending the final determination of the action by this Court. And last an urgent interim Mandatory Order (a Writ of Mandamus) ordering that pending the final determination of this action by the Court and pending the election of the new Executive Council, both the outgoing President and the Honorary President shall both jointly administer the Vanua-aku Party affairs.

As I say it is those last two urgent interim orders which are to be ruled upon this afternoon. The substantive action has been set down to be heard on Monday 15 March next.

The Claimant through their counsel asked me to consider only the urgent application itself and the sworn statements of the Honourable Minister and of Counsel.

In support of the urgent interim orders it was claimed that the orders sought were necessary to stop the Defendants from claiming to be the new Executive Council and causing unwanted division in the Party and thus causing serious instability in both the Government if the election were invalid, if indeed it be found to be, and both parties had also agreed to re-conduct fresh elections to the Executive Council, according to the Claimants.

It was submitted that it was urgent that the matter be dealt with by the Court immediately pending the hearing of the substantive action, to restore stability to the Government because, in the words of Joe Natuman, in his sworn statement, continuing divisions within the party could lead to a regime change which would not be, it was said, in the interests of the country at this point of time, because investor confidence internally and internationally would be eroded and the Government would spend scarce financial resources in paying off politicians which resource would be better utilized in promoting rural developments and the loss of investor and international confidence could further plunge Vanuatu into economic decline.

It was submitted on behalf of the Applicants that friction between the two groups within the party is such that unless the interim orders were made there would be no peace and order between the various factions.

On behalf of the Defendants, it was submitted that the Claimant must satisfy the Court that they had a serious case to be tried and, on the evidence of the Claimants they were likely succeed, and that the Claimants would be disadvantaged seriously if the orders were not granted. Reference were made in that submission to Rule 7.5 (1) and (3) (a) and (b) of the Civil Procedure Rules No. 49 of 2002.

I move on, however, to the defence contention that the application should fail under Rules 7.5 and 7.6 one of which I have already referred to. It was submitted by the Defendants that the orders sought were in fact final remedies and ought not to be issued on an interim basis. In addition, what the Claimants sought in the second of the interim orders was contrary to the constitution of the Vanua-aku Party because there was no provision within that constitution for the party to be governed, even on a temporary basis by an outgoing President and an Honorary President and the Court was being asked, it was submitted, to sanction a result which was contrary to the constitution of the Party itself.

But in general, it was submitted that, as a matter of law, the orders sought should not be granted by the Court. The reasons, it was submitted, as put forward by the Honourable Joe Natuman in his sworn statement, to which I have already referred, related more to the perils of politics rather than the consequences of an election within the party.

It was submitted that the Prime Minister himself had powers accorded to him by Article 43 (3) of the Constitution of Vanuatu to remove ministers from office, and that power could not be curtailed by practices of a political party.

It was submitted that there was nothing in the constitution of the party itself that automatically entitled a member of Parliament of the party to become a minister by reasons of his inclusive in the Executive and for the purposes of these interim orders which the Court has been asked to make, there was no evidence put forward by the Claimants to confirm that.

It was further submitted by the defence that some of the statements contained in the sworn statement of Mr. Kilu as counsel for the applicants, related to hearsay matters which ought to be put forward by direct evidence rather than by a sworn statement of counsel. It was submitted that they were no more than instructions and could not be considered as evidence to support the application.

The Defendants further submitted that any instability and confusion talked about was not a making of the Defendants nor of the Prime Minister and suffice it to say the grounds asserted did not support the essential questions that the Court must consider under Rules. In addition if an election did take place at Congress it was submitted that only a Congress of the party could change modify, suspend or cancel that election under its own constitution.

It was submitted that, in general, the applicants were mixing the affairs of the party with the affairs of state, which properly were powers given to the Prime Minister under the Constitution of Vanuatu. It was further argued in relation to the interim application that there could be no question of urgency or serious disadvantage to the applicants when this application had been made five months after the alleged invalid election at the congress back in October 2003 particularly in the light of the fact that the Claimants had been involved in subsequent negotiations with the new Executive in the formation of the Government in December 2003 and were now complaining about termination action based on the clear and unambiguous expressions of the Constitution of the country which the Prime Minister has power to utilize.

Those were then the submissions in support and against the interim orders sought.

I agree with the submission that the matter falls to be dealt with under Rules 7.5 and 7.6 of the rules to which I have already referred.

Under Rule 7.5 (1) it is provided that:

"A person may apply for an interlocutory order before a proceeding has started if:

(a) the applicant has a serious question to be tried; and

(b) the applicant would be seriously disadvantaged if the order is not granted"

And that is repeated in subsection 3 of that rule where it is provided that:

"The Court may make an order if it is satisfied that:

(a) the applicant has a serious question to be tried and, if the evidence brought by the applicant remains as it is, the applicant is likely to succeed; and

(b) the applicant would be seriously disadvantaged if the order is not made"

The applications for these interim orders are said to be made on an urgent basis and the Court may make such orders even on an oral application, if there is need to protect persons or property or to prevent the removal of persons or property from Vanuatu or because of other circumstances that justifying making the orders asked for. But the prime considerations by this Court under these applications are the requirements, which must be satisfied under Rule 7.5.

I must say that on the basis of the evidence brought by the applicants at this stage, I am left in a little doubt that the applicants have a serious question to be tried. I agree with the submission that the defendants made that the Claimants relied heavily for their application upon counsel's sworn statement. That, of course, is not direct evidence and is only evidence by way of instructions. If the evidence of the applicants were left simply on the basis of the three documents that I have been called upon to consider, I would take some persuasion that the applicants would be likely to succeed especially since it seems they were not even present at the election.

However, more significantly I cannot find that the applicants would be seriously disadvantaged if the orders were not made.

The reasons for urgency are also somewhat dubious bearing in mind, as I have already said more than once, that the voting at the Congress took place nearly five months ago in October 2003 and any serious disadvantage to the applicants has already occurred, according to their own application and evidence.

The other stated grounds for relief and for the granting of interim orders namely, unwanted dissention in the party, instability of the Government, claims as to who the new Executive Council might be, investor confidence in the country and paying off politicians are either somewhat speculative or do not seriously disadvantage the Claimants directly, and clearly under Rule 7.5 that is the test that the Claimants must satisfy if I am to be persuaded that the interim orders should be granted.

As to the order sought for the interim mandatory order that the outgoing President and the Honorary President jointly administer the party affairs pending a Court decision, that is not, as it has submitted to me, envisaged by the Vanua-aku party constitution and in any event if such an order were not made the applicants would not be seriously disadvantaged themselves, in my view.

The requirements as set out in Rule 7.5 are, in addition, conjunctive and not disjunctive. The Claimant must establish both requirements.

I am not satisfied in accordance with the rules that the interlocutory application had been made out and the application for interlocutory relief is declined for those reasons.

Dated AT PORT VILA, this 12th day of March 2004

BY THE COURT

P. I. TRESTON
Judge