IN THE COURT OF APPEAL OF
/p>
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Civil Appeal Case No.23 of 2001
BETWEEN:n>
MAXIME CARLOT KORMAN
Appellant
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AND:<
THE OMBUDSMAN
of the
Republic of Vanuatu
Respondent
Coram: Hon. Justice John von
Doussa
Hon. Justice Bruce Robertson
Hon. Justice Daniel Fatiaki
Counsel: Mr. Ozols for the Mr.
Korman
Mr. Malcolm for the Mr. Willie
Jimmy
Mr. R. Sugden for the
Respondent
Hearing Date: 31st October 2001
Judgment Date: 1 November 2001
JUDGMENT
The Appellant seeks leave to
appeal to this Court against inst various decisions made by the Chief Justice in
hearing
Constitutional Cases 85 of 1997 and 104 of 1997. On the 19th
October 2001 the Chief Justice refused leave to appeal. His reasons are
contained in a document of 29 October 2001. As
a matter of urgency we are
now considering the issues because it is clear that the matters outstanding
in respect of
these matters require to be brought to a conclusion and the
delay to our next session in April 2002 needed to be avoided.
The first issue in time arises
from the decision of the Chief Justice delivered on the 4th May
2001 when in Constitutional Case No. 85 of 1997 and the consolidated
Constitutional Case No. 104 of 1997 the Chief
Justice made a substantial
number of rulings particularly that the pleadings did disclose a reasonable
cause of action.
The leave sought in respect of the May Judgment is against
a ruling that the Respondent who was the plaintiff in the Court
below was
permitted to sue in the name of the Attorney General of Vanuatu on an ex-relatione
basis.
Secondly it is contended that
in uling of the 2nd/sup> October 2001 the Chief Justice erred in
law in granting an amendment to the pleading by permitting an amendment to
the relief sought.
Finallye�s an application
for leave to appeal out of time agme against other decisions of the learned Chief
Justice made
on the 4th May 2001 namely that section 30 of the
Ombudsman Act No. 14 of 1995 could provide a basis for the litigation and
the Ombudsman could be a plaintiff pursuant to that section.
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It is necessary before becoming
lost in the procedural intricacies of s of this matter to have regard to the
factual circumstances
in which this litigation has its basis.
In 1996 and 1997 the Ombudsman
conducted inquiries into two matters. The firstfirst was a decision made by the
Council
of Minister in September 1993 which approved payment amounting to
VT34.5 Million to various of the present Appellants and others
associated
with them for what was described as political injustice which they had
suffered in 1988. The Ombudsman�s report
is pursuant to section 30 (3) of
the Ombudsman Act and is entitled �Public Report on Illegal Ex-Gratia
Payments to 23 1988 Former MPs�. It recommended that the payment of
VT1,500,000 together with interest at the rate of 5 % for the period the
money was out of the public revenue be repaid by
each of the involved
individuals.
The second case involves a
report On the Payment of Comtion to the Honourable Maxi Maxime Carlot Korman,
the Honourable
Willie Jimmy and the Honourable Barak Sope in breach of the
Leadership Code in compensation in 1994. It recommended among other
things
that each of the named persons return payments of VT5 Million to the
Republic of Vanuatu together with interest
at the rate of 5 % for the period
the money was out of the public revenue together with a further Vt. 6
million paid
for legal fees. A total of Vt. 21 million is involved.
The two proceedings have been
round the Cour too long a time. Associateciated with all this was an
application for a declaration
that the Ombudsman�s Act 14 of 1995 was
unconstitutional and invalid.
There can be no dohat the
issues which are raised are in a number of asof aspects of critical importance to
this Republic
and its future.
The office of Ombudsman is
founded in the Constin. The ability of an Ombudsmbudsman to undertake
inquiry is extensive.
The Constitution makes provision for Ombudsman�s
findings to be dealt with in general terms.
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In 1995 thudsman Act No.
14 was enacted. It came into force on e on the 18th September 1995. It
is described as being an Act to provide for the powers and procedures and
immunities of the Ombudsman
in addition to those provided for in the
Constitution and for other matters relating to the Ombudsman and his
delegates
and for the purposes of giving effect to the principle of section
10 (Leadership Code) of the Constitution.
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Section 30 of that Act
provides:-
�30. POWERS OF ENFORCEMENT
(1) &nbssp;&nnsp;&&nsp; &nsp; &nbbp;&nnbsp;
Tpan>The Ombudsman�s powers of enforcement are limited to city s
oceedings, reports and recommendations, to the making of reports
and
nd
r recommecommendations to the Parliament and the Prime Minister and other relevant
bodies and person as provided
for under this Act, and to the giving of
advice.
(2) &&nsp;;&nspp;&nssp;
p;
The Ombudsman may however apply to the Court for an order that the
Court make an order giving effect to a recommendationhe Oman
in the event that �
(a) ;&nbssp; &nsp; &nbs; &nbbp;&nnbp;&
(pan>(i) the responsiblson has fail failed to respond to the Ombudsman�s
report after being given a nablertuni do so; or
p>
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(ian style="font:7.0pt "quot;Times New Roman""> &nnbsp;; &nsp; &nsp; &&nbp;;
/ the resp responsiblnsible person has responded to the Ombudsman�s report in a
manner which fails to resolve the pms idied b
Ombudsman�s
eport
(iii) &nnbsp; &nnbsp;
p;
the responsible person has responded to the Ombudsman�s report but
has thereafter failed or refto caut thisionunican
s response
after beer being ging given iven a reaa reasonabsonable opportunity to do so; and
pan>
(b) ;&nbssp; &nsp; &nsp; p; &nnsp;&&nsp;
(i)  the report reveals (whether this is stated or not) a breach of
any of the fundamental rights contained in Articles
5 (1) of the Contion;span>
(iin style="font:7.0pt "Tuot;Times New Roman""> &nbbsp;& &nsp; &nsp; &nnbp;&
&nt">
(c) &nbbsp; &nbbsp; &nbp; &nbp;
(sp; the appliapplication is made within 24 months of the date of the
Ombudsmaecommion; span>/p>
p clasoBodyText2" align="left"
style="tle="text-aext-align: left; margin-top: 1; margin-botn-bottom: tom: 1">
1">
<
(ii) &nnsp;&&nsp;;
sp tpan>the Court has within that period of 24 months granted to the
Ombudsman an extension of time for the Lodging of an application
bon
ub-se (2) (a) (iii) of this section on the grounds tnds that that the
he
responsible person requires a further period
of time in order to carry out
the required actions.
(3) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
p class="Mss="MsoBodyText2" align="left" style="text-align: left; text-indent: -35.45pt; margin-left: 70.9pt; margin-top: 1; margin-bottom:
1">
(4) &nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; &nsp;
On corindean a an application under the above sub-section (2), the
Court shall give the person responsible an opportunity to
be heard ay
e-opeues decided by the Ombudsman, examine any witnesses examineamined by d by
the Ombudsman or other witnesses
and generally conduct the proceedings in
the manner required to do justice to the case.
(5) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
an>Tpe Court may enforenforce an order made by it under this section by any
method
of enforcement available in civil proceedings,udingittal for contempt and the paymentompensation to any person whon who has has
suffesuffered
red
damage as a result of failure to comply with the order. Such enforcement
action may, at the Court�s
discretion, be taken against an individual person
responsible provided that the ability to comply with the order is within
the
power of that person and is not dependent upon the action of any other
person or body not under his control.
(6) & p;&nssp;&nsp; &nsp; ;&nbpp;
/ Tpan>The Supreme Come Court shall continue to have jurisdiction to hear and
determine the matter, even if either before or during
the proceedings, the
leader oson rsible whatever reason ason ceaseceases to s to be a leader or
person responsible .�
As we apprehend the argument
now advanced it is cded that under those provisrovisions the Ombudsman lacks
the power to
initiate Court proceedings for an order that the recommendation
of the Ombudsman be given effect to.
Howthat is not what the
plain words say. There is discreiscretionary right which is vested in the
Ombudsman under section
30 (2).
Under section 30 (3) the Court
is vested a discretion as to whether ther it will make such an order or
order other reasonable
action as is necessary to resolve the breach of the
fundamental rights or of the Leadership Code identified by the report.
The two reports in question
relate to very substantial sial sums of money paid to politicians by politicians
in circumstances
which must be viewed as at least unusual.
A constitutional entity has
reported in the most strident terms cons condemning what occurred. A report has
been published
and on the pleadings the recommendation have not been acted
upon.
Parliament in the Ombudsman Act
created certain rights which the Ombudsman has initiated.
We agree with the Chief Justice
that it is to stop playing procedural ural games in this case. There is an
urgent need
for hearing on the handful of basic issues which arise and will
determine the cases.
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We expressedous
reservations about the need to have the Attorney rney General involved in any way
with the plaintiff.
Mr. Sugden has confirmed that he will not take up the
authority offered by the Court to make this a relator proceedings. The
case
should never have included a reference to the name of any holder of the
Statutory office. It is the Ombudsman as
an institution which has the power
and rights. Hereafter the plaintiff in each case will be described simply as
the Ombudsman
of the Republic of Vanuatu. We respectfully adopt the
reasoning of the Privy Council in Attorney General of Fiji -v- DPP [1983] AC
672.
Mr. Sugden has indicated that
will apply to join the Atte Attorney General as a further defendant in each
case. That is
a matter for the Supreme Court, but to ensure that all matters
are properly before the Court, it would appear sensible.
We are persuaded that a
straight reading of the plain words of Section 30 (2) permits the proceeding
against the individuals
who have ignored the recommendations to repay to the
Public Revenue the various sums they each received together with interest.
The preconditions in 30 (2) (a) (b) & (c) are alleged to exist therefore the
proceeding is available.
It is possible the Court
may also need to have the ability to considensider under 30 (3) and 30 (4)
whether Orders need
to be made against officers of the State who also did
not respond to the recommendations. If that is so, the Attorney General
is
the appropriate party to represent them.
It is said on b of the
appellants that this power in section 30 is u is unusual, if not extraordinary.
Whether that is
so is irrelevant. Subject to the Constitution, Parliament
has a Supreme law-making function. The Supreme Court has previously
held
that the Ombudsman�s Act is not unconstitutional. The Courts have a
Constitutional duty to apply the Act and to
uphold the rights which have
been created by Parliament.
Ife exists a factual
foundation for the Ombudsman to into invoke the power provided in Section 30,
then the Court is bound
to get on with the necessary enquiry and decision
making.
We are not persuaded that there
is any need to or sense in granting leave to apto appeal what are basically
house-keeping
decisions to date. We are satisfied that the jurisdiction to
proceed to hearings in each of the cases has been made out. There
has
already been too much delay.
Anues which require
further consideration by the Court ourt will best be dealt with after trial and
determination when
the facts have been established, if there is an appeal by
any party.
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Leave to appeal is refused.
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The Responde entitled to
costs in the normal way against the Appe Appellants.
Dated at Port Vila this 1st
day of November 2001.
Justice Bruce Robertson
Justice John von Doussa
Justice Daniel Fatiaki
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