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Supreme Court of Vanuatu |
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IN
THE SUPREME COURT
OF
THE
REPUBLIC OF
VANUATU
(Civil
Jurisdiction)
Constitutional Case No.03 of 2005
BETWEEN:
JEAN
ALAIN
MAHE
First
Applicant
AND:
JACOB
THYNA, RONALD WARSAL & YVETTE
SAM
Second
Applicants
AND:
THE
PRESIDENT OF THE REPUBLIC OF
VANUATU
First
Respondent
AND:
THE
PRIME MINISTER OF THE REPUBLIC OF
VANUATU
Second
Respondent
AND:
THE
ATTORNEY-GENERAL OF THE REPUBLIC OF
VANUATU
Third
Respondent
REASONS FOR JUDGMENT ON DAMAGES
This
is the judgment on the assessment of damages of the First Applicant.
The
brief factual background is set out below.
On
13 August 2004, the First and Second Applicants were appointed as Members of the
Public Service Commission for a period of three
(3) years by the President of
the Republic of Vanuatu in accordance with the provisions of Article 59 of the
Constitution.
On
13 August 2004, the President appointed the First Applicant as chairman of the
Public Service Commission for a period of one (1)
year in accordance with the
sub-Article (2) of Article 59 of the
Constitution.
Article
59 of the Constitution provides:-
"59. Members of Public Service Commission
(1) The Public Service Commission shall be composed of five members appointed for 3 years by the President of the Republic after consultation with the Prime Minister.
(2) The President of the Republic shall appoint every year, from among the members of the Commission, a chairman who shall be responsible for organising its proceedings.
(3) A person shall be disqualified for appointment as a member of the Commission if he is a member of Parliament, the National Council of Chiefs or a Local Government Council or if he exercises a position of responsibility within a political party.
(4) A person shall cease to be a member of the Commission if circumstances arise that, if he were not a member, would disqualify him for appointment as such."
On
28 February 2005, the First and Second Applicants were removed as chairman and
members of the Public Service Commission by a Removal
Notice issued under the
hand of the President of the Republic.
The
First and Second Applicants file a Constitution Application dated 7 March 2005
seeking the following relief:-
1. A declaration that the purported removal notice issued under the hand of the President of the Republic made at Port Vila dated February 20, 2004 is unlawful and of no effect.
2. A declaration that any purported appointment of persons by the President of the Republic of Vanuatu as a member of the Public Service Commission is unlawful and of no effect.
3. A declaration that the Applicants appointment as members of the Public Services Commission for a term of three years with effect from August 15, 2004 and appointment of the First Applicant as chairman of the Public Service Commission cannot be removed by the President of the Republic of Vanuatu unless one or more of the criteria as set out in Article 59 of the Constitution is satisfied or unless resigns.
4. The President of the Republic of Vanuatu is prohibited from declaring a vacancy in respect of the office of the First Applicant otherwise in accordance with Article 59 of the Constitution and/or the Public Service Act 1998 - No. 11 of 1998.
5. Damages (in the alternative).
6. Such other relief as the court deems fit.
7. Costs.
On
2 September 2005, the Supreme Court made the following orders:-
"ORDER UPON hearing counsel on behalf of the their respective clients, AND UPON reading the sworn statements of Jean Alain Mahe and Ronald Warsal in support of the application, AND UPON considering the submissions of all counsel, the Court makes the following Orders:-
1. A declaration that the purported Removal Notice issued under the hand of the President of the Republic of Vanuatu made at Port Vila on February 28, 2005 is unlawful, is granted.
2. A declaration that any purported appointment of persons by the President of the Republic of Vanuatu as a member of the Public Service Commission is unlawful, is granted.
3. A declaration that the Applicants appointments as Members of the Public Service Commission for a term of three years with effect from August 2004 cannot be declared vacant and appointment of the first Applicant Chairman of the Public Service Commission cannot be removed by the President of the Republic of Vanuatu unless one or more of the criteria set out under Article 59 (3) & (4) of the Constitution is satisfied or unless resigns, is granted.
4. A declaration that the President of the Republic of Vanuatu is prohibited from declaring a vacancy in respect of the office of the First Applicant otherwise than in accordance with Article 59 of the Constitution and/or the Public Service Act 1998 No. 11 of 1998, is declined as the said declaration was already made by His Excellency the President.
5. The Applicants cannot be reinstated in the Public Service Commission as the Commission has already been re-composed.
6. The Applicants are entitled to damages to be assessed and determined.
7. This matter is listed for conference on 20 September 2005 at 8.15 AM o’clock for assessment and determination of damages to compensate the unlawful removal of the Applicants as Chairman (First Applicant) and Members of the Public Service Commission (First and Second Applicants) contrary to Article 59 (3) & (4) of the Constitution.
8. The reasons for the Judgment be supplied as soon as possible."
Since
the Court judgment of 2 September 2005, various conferences were held by the
Court between the parties to assess the damages
of the First and Second
Applicants.
On
29 December 2006, the Second Applicants and the First, Second and Third
Respondents have agreed to settle damages in relation to
each of the Second
Applicants which were eventuated through the Consent Order dated 29 December
2006.
The
First Applicant and the Respondents could not settle the First Applicant’s
damages, despite various encouragements and conferences
held by the Court
between the parties for that purpose.
The
assessment of the First Applicant’s damages requires Court assessment. The
Court heard submissions from counsel with respective
sworn statements filed in
support.
At
the outset, the First Applicant accepted the mode of calculation provided by the
Respondents which is contained in the sworn statement
of Mr. Mark Bebe,
Secretary of the Public Serivce Commission, dated and filed 25 Maarch 2008 and
exhibited
"MPB4".
The First Applicant agreed he is entitled to the following:-
"A. Balance of one year’s Appointment as Chairman of Public Service Commission which is 5 months and 2 weeks
This entitlement is comprised of:-
1. Outstanding Salaries 5 months and 2 weeks
Annual Salary VT1,743,467
One months salary VT145,289 x 5 months VT726,445
Total VT792,518
2. Annual Leave = 21 working days due for the 1 year appointment as Chairman VT100,231
3. Child Allowance for the balance of one year VT1,200 per child x 5 months = VT6,000 x 6 children = VT36,000
B. Balance of 3 year term as Member of the Public Service Commission which is 2 years 5 months 2 weeks
Public Service Commission sits twice in a month and each sitting allowance is VT3,000
Thus 29 motnhs + 2 weeks
29 months x 2 sittings each month = 58 sittings + 1 sitting for 2 weeks = 59 sittings altogether
59 sittings x VT3,000 each sitting = VT177,000
Total = VT177,000
C. Repatriation = VT50,000
D. Gratuity VT145,289 x 2 months = VT290,578
E. Loss of Opportunity costs.
The
First Applicant claims he is entitled to loss of opportunity as a result of
unlawful removal as the chairman of the Public Service
Commission. He claims for
the loss of chance of re-appointment at 100%. The Respondents accept that he is
entitled to some costs
to be assessed at 25% but not at 100%.
The
First Applicant informs the Court that he will no longer pursue his claim for
nominal damages nor aggravated damages.
Issues
The
outstanding issues relating to the assessment of the First Applicant award of
damages is two fold:-
First,
whether the First Applicant is entitled to be reappointed chairman of the Public
Service Commission at the end of his one year
appointment on 13 August 2005. If
so what is the percentage of his chance of re-appointment: 100% or 25%?
The
First Applicant says in his sworn statement dated and filed 15 April 2008, that
it has been a practice since independence that
a chairman is re-elected to the
chairmanship post every year until the end of his three year term as a member of
the Commission.
The First Applicant’s counsel, estimated and submitted the
First Applicant’s chance of being re-appointed at 100%.
The
Respondents refuted such a claim and submitted that between 2001 and 2005, there
had been three (3) different people occupying
the position of the chairmanship
of the Public Service Commission. The Respondents say although, they have not
produced evidence
of what they alleged, the Court can take judicial notice of
the fact that the chairman of the Public Service Commission in 2001 was
Amos
Titongoa, who was replaced by the First Applicant in 2002, and further replaced
by the current chairman, Charles Maon after
his appointment in 2005. The
Respondents submit that this trend does not prove 100% opportunity chance for
the First Applicant to
be re-appointed as chairman of the Commission. The
Respondents by counsel, submit that the chance of the First Applicant is 25% and
any opportunity loss is to be assessed accordingly at 25% chance.
I
have no magic formula to assess the loss of opportunity in the sort of cases as
the one before me. What I have observed from the
sworn statement of the First
Applicant is that he made reference to the Independence date 30 July 1980 to 28
February 2005, the date
of his removal as the chairman of the Commission. During
that period he said the trend is that when a member of the Public Service
Commission is appointed as chairman, there is a chance of 100% likelihood that
he/she would be re-appointed. I accept what the Respondents
say in that between
2001 and 2005, there are three different persons appointed as chairman of the
Commission. I accept as a fact
that between 30 July 1980 to 2001, the trend is
that the chairman of the Public Service Commission is reappointed as chairman of
the Commission until his or her term of three years expired as there is no
evidence provided by the Respondents to the contrary.
That is quite a lengthy
period. I assess the current position in this way. The First Applicant was
appointed chairman of the Commission
on 13 August 2004. If he had not been
unlawful removed, there is a likelihood that he could be re-appointed as
chairman for another
term or until his three (3) years terms expired. I do not
accept that this will be 100% chance as unforseen circumstance could have
arisen
but I assess the chance at 50% and I assess the costs of the loss of opportunity
of reappointment to the chairmanship of the
Commission from 28 February 2005 to
the end of his three years terms of the membership of the Public Service
Commission to be 50%
loss of that opportunity.
I,
thus, use the mode of calculation provided for 25% loss to be VT287,000 x 2 =
VT574,000 to be the award of his loss of opportunity.
Second,
the First Applicant claims and submits that he is entitled to an award of
VT200,000 for exemplary damages as punitive damages
for his unlawful removal
from his membership and chairmanship of the Public Service Commission before the
expiry of his terms of
appointment under Article 59 of the Constitution.
The
Respondents by counsel submitted to the contrary.
I
refuse to consider this head of claim for an award of exemplary damages in this
type of action as there is no basis in law. Below
are the reasons for my
refusal. Exemplary damages are sometimes referred to as punitive or vindictive
damages. Damages are a sum
of money awarded by a Court as compensation for a
tort or a breach of contract. In exceptional cases in tort (but never in
contract)
exemplary damages may be given to punish the defendant’s
wrongdoing. Oxford Reference: A Concise Dictionary of law in its second
edition
provides the following definition and circumstances under which exemplary
damages are awarded:
"Exemplary damages (punitive damages, vindictive damages) Damages given to punish the defendant rather than (or as well as) to compensate the plaintiff for harm done. Such damages are exceptional in tort, since the general rule is that damages are given only to compensate for loss caused. They can be awarded in three cases: (1) when expressly authorised by statute; (2) to punish oppressive, arbitrary, or unconstitutional acts by government, servants; (3) when the defendant has deliberately calculated that the profits to be made out of committing a tort (e.g. by publishing a defamatory book) may exceed the damages at risk. In such cases, exemplary damages are given to prove that "tort does not pay". Exemplary damages cannot be given for breach of contract."
In
the present case, the damages claimed by the First Applicant (and Second
Applicants) arose out of the complaint that the First,
Second and Third
Respondents had breached the First Applicant’s term of appointment as a
then member of the Public Service
Commission and also then chairman of the
Public Service Commission from 13 August 2004 to 13 August 2007.
The
damages sought are damages for the breach of the First Applicant’s terms
of appointment under Article 59 of the Constitution.
Damages claimed are not for
an action in tort but they are contractual in nature. The claim for exemplary
damages is therefore refused.
The
First Applicant claims also for his costs. The First Applicant is entitled to
his costs to be assessed from the month of August
2006 when Mr. Daniel Yawah
began to act on his behalf. I assess the costs taking into account of 10
conference hearings, including
the unpaid wasted costs of VT5,000 made in favour
of the First Applicant on 6 November 2006, and his legal costs and I determine
the costs at VT260,000.
In
summary, the First Applicant, is entitled to the following damages corresponding
to:-
A. Balance of one year’s appointment as chairman of the Public Service Commission which is 5 months and 2 weeks.:
1. Outstanding salaries 5 months and 2 weeks: VT792,518
2. Annual leave: VT100,251
3. Child Allowance for balance of 1 year: VT36,000
B. Balance of 3 years term as a member of the Public Service Commission which is 2 years 5 months and 2 weeks.: VT177,000
C. Repatriation: VT50,000
D. Gratuity: VT290,578
E. Costs of loss of opportunity at 50% at the figure of VT574,600.
In
addition to the above the First Applicant is entitled to his costs of VT260,000.
The
First Applicant is therefore entitled to a total award of damages assessed at
VT2,280,369 (inclusive of costs of VT260,000).
The
First, Second and Third Respondents shall pay the above sum of VT2,280,369 to
the First Applicant. A conference is scheduled on
2 June 2008 at 1.30 p.m.
o’clock to ascertain how the Respondents should pay the above said sum to
the First Applicant.
Orders
shall be made to this effect according.
DATED
at Port Vila, this 22nd day of May 2008.
BY THE COURT
Vincent
LUNABEK
Chief
Justice.
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URL: http://www.paclii.org/vu/cases/VUSC/2008/39.html