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Supreme Court of Vanuatu |
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IN
THE SUPREME COURT
OF THE REPUBLIC OF
VANUATU
(Civil
Jurisdiction)
Civil Case No. 02 of 2004.
BETWEEN:
CHRISTOPHER
EMELEE
First Claimant
AND:
HON.
HAM LINI
First Defendant
AND:
THE
ATTORNEY GENERAL
Second Defendant
AND:
MR.
LENNOX VUTI
Third Defendant
Coram: Justice PI Treston
Mr. Warsal for
Claimant
Mr. Aru for First and Second Defendants
No appearance of Third
Defendant
REASONS
FOR DECLINING TO HEAR CLAIM
AND
STRIKING CLAIM OUT
CLAIM
The
Claimant in an amended claim for Judicial Review has sought the following:
-
(a) A quashing order against the decision of the First Defendant made on 6 January 2004 terminating him as Chairperson of the Vanuatu Maritime Authority, and;
(b) A declaration that the appointment of the Third Defendant as de-facto Chairperson by the First Defendant was ultra vires and null and void.
The grounds for the grant
of order (a) were that the First Defendant did not provide reasons to the
Claimant for his decision to terminate
his position and while it was accepted
that the First Defendant had power to terminate his position it was argued that
the First
Defendant abused his power.
It was argued that the First
Defendant being a leader must act fairly and must respect the principles of
natural justice in the exercise
of his powers and that the minister’s
power could only be exercised after giving full details to and in consultation
with other
Authority members. The Claimant submitted that the Chairman of the
Authority was elected by other members and that reasons for termination
of a
board member must be the same as for the chairman. It was argued that there were
no valid reasons to terminate the chairpersonship
of the Claimant which was a
plot.
As to order (b) it was contended by the Claimant that on or about
10 December 2003 the First Defendant purported to appoint the Third
Defendant as
acting Chairperson and since that date the Third Defendant had been performing
the role of the Chairperson of the Authority
which was an abuse of power because
the Third Defendant had disposed for his personal interests of a part of
Government property
designated to the Vanuatu Maritime Authority which had
caused serious conflict of interest. It was argued that the Third Defendant
was
performing the role of Chairperson in breach of the Vanuatu Maritime Authority
Act No. 29 of 1998 (“the Act”)
In support of his claim the
Claimant filed a sworn statement dated 17 March 2004. The First Defendant filed
a sworn statement dated
16 March 2004.
The Third Defendant was not
present at the hearing.
The First and Second Defendants filed a defence
to the claim on 16 March
2004.
FACTS
The
Claimant was appointed as a member of the Vanuatu Maritime Authority by an
instrument of appointment dated 11 March 2003 being
Order no. 9 of 2003. On or
about 12 March 2003 it seems that the Claimant was approved by the Minister as
Chairperson on the nomination
of the Authority pursuant to section 28 (1) of the
Act.
By letter dated 10 December 2003 the Minister, the First Defendant,
removed the Claimant as Chairperson of the Authority because it
seemed that the
Claimant had been charged with offences and he had told the Minister that
investigations by the police amounted to
nothing and that he was cleared of all
allegations. The Minister advised that he had consulted with the State Law
Office who had
indicated that certain charges were still being pursued. The
Minister said to the Claimant that he had provided false and misleading
information to him as Minister responsible and had consequently destroyed the
fundamental principle of trust and a good working relationship
and thus he would
be removed as Chairperson. In another letter dated the same date the First
Defendant approved the Third Defendant
as acting Deputy Chairperson.
The
Claimant wrote to the Minister by letter dated 11 December 2003 and denied the
allegations.
By letter dated 11 December 2003 the Minister revoked his
decision of 10 December 2003.
By letter dated 24 December 2003 the First
Defendant again wrote to the Claimant as Chairperson setting out that as the
Claimant had
been charged with the offence of conspiracy to pervert the cause of
justice contrary to section 79 of the Penal Code [CAP 135] which carries a
maximum sentence of seven years imprisonment. The charge concerned allegations
of preventing the outcome
of criminal proceedings in relation to criminal
prosecution of the maters of two fishing vessels. The First Defendant said that
he
was considering removing the Claimant once more as Chairperson. The Minister
said:
“It is my view that as the alleged offence relates to matters clearly associated with the operation of the Vanuatu Maritime Authority, it is inappropriate for you to remain as Chairman of the Authority while the charge is before the Court”.
The First Defendant gave
the Claimant until 3pm on Tuesday 30 December 2003 to submit any matters that he
required him to take into
consideration in writing.
The Claimant replied
in detail by letter dated 2 January 2004 but the Minister wrote again on
6 January 2004 inter alia as
follows: -
“Having considerate your response, I hereby remove you as Chairman of the Vanuatu Maritime Authority with effect from the date of this letter.”
It is
that decision which the Claimant seeks to
review.
SUBMISSIONS
The
Claimant had filed the papers himself and a previous conference had occurred on
5 February 2004. Another conference was allocated
for 8am on 19 March 2004 when
Mr. Warsal advised that he had been appointed as counsel for the Claimant. As
his appointment had been
only the night before conference he applied for an
adjournment and I stood the matter down until 3pm on 19 March 2004 for
submissions
to be made.
On behalf of the Claimant it was submitted that
there was an arguable case as, although it was accepted that the Minister had
discretion
under Section 28 (3) of the Act, that discretion must be exercised
subject to the principles of natural justice and although the
Claimant had been
given notice and was given an opportunity to reply, it was submitted that his
removal was politically motivated
and that the First Defendant was
biased.
In relation to that the First Defendant submitted that Section 28
(3) gave the Minister an absolute unfettered discretion to remove
the
Chairperson of the Authority and that reasons did not have to be given in those
circumstances although the principles of natural
justice had been complied with
here because the Claimant had been given the opportunity to be heard and to
reply and reasons for
the removal had been given by the First Defendant even
though it was not necessary to do so.
Submissions were also addressed to
the Court by counsel in relation to Second and Third Defendants and counsel for
the Claimant accepted
that it was inappropriate to join the Attorney General as
a party where the relief sought was a mandatory order, and a quashing order
as
opposed to a declaration about an enactment. The Claimant accepted that the
claim against the Attorney General should be struck
out.
In relation to
the Third Defendant counsel for the Claimant accepted that action against the
Third Defendant was misconceived as Mr.
Vuti was not a decision maker, whose
actions could be subject to review. It was accepted that the claim against the
Third Defendant
could also be struck
out.
LAW
Rule
17.8 of the Civil Procedure Rules No. 49 of 2002 provides as follows: -
“Court to be satisfied of claimant’s case
(1) As soon as practicable after the defence has been filed and served, the judge must call a conference.
(2) At the conference, the judge must consider the matters in sub rule (3).
(3) The Judge will not hear the claim unless he or she is satisfied that:
(a) the claimant has an arguable case; and
(b) the claimant is directly affected by the enactment or decision; and
(c) there has been no undue delay in making the claim; and
(d) there is no other remedy that resolves the matter fully and directly.
(4) To be satisfied, the judge may at the conference:
(a) consider the papers filed in the proceeding; and
(b) hear argument from the parties.
(5) If the judge is not satisfied about the matters in sub rule (3), the judge must decline to hear the claim and strike it out.”
Section 28 of
the Act provides as follows: -
“CHAIRPERSON AND DEPUTY CHAIRPERSON
(1) The Authority must nominate for the Minister’s approval one of its permanent members to be the Chairperson and another to be the Deputy Chairperson.
(2) If a nomination is not approved by the Minister, the Authority must make another nomination.
(3) The Chairperson and Deputy Chairperson each hold office until removed by the Minister.”
FINDINGS
According
to the rules the conference which took place on 19 March 2004 concerned matters
set out in subsection 3 of rule 17.8. The
matters that a judge must consider are
conjunctive and not disjunctive, and it is provided that the judge must decline
to hear the
claim unless he is satisfied as to all the matters set out in
subsection 3.
I considered that the Claimant did not have an arguable
case against the First Defendant. Under Section 28 (3) the Minister has an
unfettered discretion to remove the Chairperson. Although the discretion is
unfettered it must be exercise pursuant to the principles
of natural justice. In
this case, I find that it was clear that the Minister did exercise his
discretion under the principle of natural
justice. He set out the reasons for
his intention to remove the Claimant as Chairperson and allowed the Claimant to
answer the allegations.
The Claimant did so. The Minister then exercised his
discretion after considering the submissions of the Claimant. It is clear on
the
evidence of the Claimant himself that the principles of natural justice were
complied with and that there was no arguable case
which could be mounted to the
contrary.
I was also of the view that the alleged offences in relation to
the fishing vessels, as the First Defendant said in his correspondence,
were
clearly associated in a general way with the Functions of the Authority as set
out in S.6 of the Act in relation to the marine
industry and seafarers. Clearly
in the face of unresolved criminal proceedings against the Claimant of that
nature the Minister was
justified in removing the Claimant as Chairperson to
maintain the integrity of the Authority.
There was no sufficient
evidence of a plot or political interference.
It is also of significance
that the Claimant failed to directly refer to the charge of conspiracy in his
sworn statement.
It is significant that the Claimant remained and remains
to this day an Authority member. Throughout his pleadings, the Claimant
submitted
that it was the Authority who “elected” him as
Chairperson. Clearly that was misconceived as Section 28 (1) of the Act
provides
that the Authority must nominate for the approval of the Minister one of its
permanent members to be the Chairperson. Under
subsection 2 the Minister has the
discretion not to approve a nomination and the Authority must then make another
nomination. Clearly
under the legislation it is the Minister who may approve the
Chairman and it is the Minister who removes the Chairman under subsection
3.
Another matter of concern was raised by Exhibit CE13 of the
Claimant’s sworn Statement whereunder he wrote to the New Zealand
High
Commissioner lodging a complaint “In my
capacity as duly appointed Chairman of the Vanuatu Maritime Authority”.
Clearly as of the date of that letter Monday 16 February 2004 the
Claimant had been removed as Chairperson.
SUMMARY
The
First Defendant was not required to provide reasons for his decision of 6
January 2004 although he had provided such reasons in
earlier correspondence. It
is clear that the Claimant was given procedural fairness.
As to the
other matters raised in rule 17.8, while the Claimant was directly affected by
the decision to remove him as Chairperson
there was no particular details set
out by the Claimant as to the consequences of his removal. As I have already
said, he remains
a member of the Authority and the only submission made was that
he suffered a lost of prestige in being removed as Chairperson. Section
27 of
the Act provides that members are not to be paid any fees salaries or allowances
except for business travel expenses.
I accepted that there was no undue
delay in making the claim and that there may have been no other remedy that
resolved the matter
fully and directly but I was not satisfied that the claimant
had an arguable case and under rule 17.8 (5) I declined to hear the
case and
struck it out.
These are the reasons for my decision.
DATED AT PORT VILA, this
19th
day of March 2004
BY THE COURT
P.
I TRESTON
Judge.
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URL: http://www.paclii.org/vu/cases/VUSC/2004/89.html