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Jimmy v Ombudsman [1996] VUSC 26; Civil Case No 112 of 1995 (26 March 1996)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL CASE No 112 OF 1995

BETWEEN:

HONOURABLE WILLIE JIMMY MP
(Applicant)

AND:

THE OMBUDSMAN
(First Respondent)

AND:

THE ATTORNEY-GENERAL
(Second Respondent)

Coram: The Chief Justice
Mr Moti for the Applicant
Mrs Bothman-Barlow for the Respondent

IN THE MATTER of an application by the Honourable Willie Jimmy MP pursuant to Article 53(1) of the Constitution.

JUDGMENT

This matter came before the Court by way of an Originating Summons dated 24 November 1995, seeking a declaration and other redress under Article 53 of the Constitution for an alleged breach of Article 62(4) of the Constitution by the Ombudsman in her conduct of an inquiry into the ownership by the applicant of an oil licence shop in Port Vila;

Further and in the alternative, a declaration was sought that the Ombudsman had breached Section 16 (4) (b) of the Ombudsman Act No 14 of 1995 in failing to grant the applicant an opportunity to reply, either orally or in writing, to the complaints made against him;

Finally, a declaration that the Ombudsman could not be seen to have acted fairly in the conduct of her inquiry because of her personal acquaintance with and knowledge of the circumstances giving rise to the complaints.

By Notice of Motion dated 24 January 1996, the Ombudsman applied to the Court for an order that the Originating Summons be struck out on the grounds, inter alia, of failure to disclose any reasonable cause of action, pursuant to Order 27 rule 4 of the Western Pacific High Court Rules which apply in Vanuatu in the absence of rules specifically drafted for the Vanuatu Supreme Court. The Order, therefore, that is sought is an Order to strike out the whole of the Originating Summons.

Under the civil rules that apply to these Courts as set out above, this application is required to be very precisely pleaded and the grounds precisely set out. If the application is also under the Court's inherent jurisdiction a properly drawn application should expressly mention it. The general rule is that this summary (under 0.27 r 4) procedure can only be adopted when it can clearly be seen that the claim or answer is on the face of it obviously unsustainable. Another point to be noted under these rules is that where the only ground on which the application is made is that the pleading discloses no reasonable cause of action or defence, no evidence is admitted (see: Att-Gen of the Duchy of Lancaster v L & N.W. Ry [1892] 3 Ch 278). Even under these rules in applications under any of the other grounds mentioned in the rule or where the inherent jurisdiction of the Court is invoked, affidavit evidence may be and ordinarily is used. These rules apply to civil proceedings and it is as well to remember that in the civil administration of the Courts it is not the practice to have a preliminary hearing as it is in crime: see Wentlock v Moloney [1965] 2 All E.R. 871, per Sellers L.J. at p 872. On the one hand the summary remedy under this rule is only to be implied in plain and obvious cases when the action is one which cannot succeed or is in some way an abuse of the process or the case unarguable: see Nagle v Feilding [1966] 2 Q.B. 633, pp. 648, 651. However, if the Court is satisfied that a claim by the plaintiff does not disclose a reasonable cause of action, even though the Court is so satisfied after a relatively long and elaborate hearing, the right course for the Court is to strike out that claim, even if the defendant has still to meet other viable claims by the plaintiff since he is entitled under the rules to be relieved of having to meet a claim which disclosed no reasonable cause of action: see McKay v Essex Area Health Authority [1982] 2 All E.R. 771, C.A. Put another way, it has been said that the Court will not permit a plaintiff to be "driven from the judgment seat" except where the cause of action is obviously bad and almost incontestably bad (per Fletcher Moulton L.J. in Dyson v Att-Gen. [1910] UKLawRpKQB 203; [1911] 1 K.B. 410, p. 419.) On the other hand, a stay or even dismissal of proceedings may "often be required by the very essence of justice to be done" (per Lord Blackburn in Metropolitan Bank v Pooley (1885) 10 APP. Cas. 210, p.221) so as to prevent parties being harassed and put to expense by frivolous, vexatious or hopeless litigation (cited with approval by Lawton L.J. in Riches v Director of Public Prosecutions [1973] 2 All E.R. 935, p.942), But it is also essential to remember that the power to strike out any pleading or any part of a pleading under these rules is not mandatory, but permissive, and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances of the offending plea. Apart from the rules, the Court has an inherent jurisdiction to stay all proceedings before it that are obviously frivolous or vexatious or an abuse of its process. This is again a discretionary power of the Court. When application is made to the inherent jurisdiction of the Court, all the facts can be gone into; and affidavits as to the facts are admissible: see Willis v Earle Howe [1893] UKLawRpCh 68; [1893] 2 Ch. 545, 554. It will be seen that the Court's inherent jurisdiction is wider then the rules, and under it the Court may inquire into the proceedings by looking at affidavit evidence or even other evidence where justice requires it.

More interestingly, in her submission before the Court, Counsel for the Ombudsman raises the issue that this is purported to be a Constitutional application pursuant to Article 53 of the Constitution. She submits therefore that as such, it must be brought within the rules that govern such applications under Section 218 of the Criminal Procedure Code CAP 136, by way of a Constitutional petition and that those rules must be applied here, which entitles her to apply for the petition to be dismissed pursuant to Section 218(4) on the basis that the petition is without foundation.

In his submission to the Court, Mr Moti, Counsel for the petitioner, submitted that in spite of the rules set out in Section 218 of the Criminal Procedure Code, and its clear and unambiguous language, such actions can and should, nevertheless, be brought before the Court by Originating Summons. He relies, as I understand it, for this submission, upon the preamble to the Criminal Procedure Code which states: "To provide for a code of procedure in criminal cases." He submits, therefore, that this code is only limited to criminal actions and should have no bearing upon Constitutional matters, in spite of the fact that Part XIII of the Criminal Procedure Code is headed "Special Jurisdiction of the Supreme Court in Constitutional Matters" and is couched in clear and unambiguous language. There is no force in that submission at all. The Court can never ignore a statute or a statutory directive particularly when its terms are absolutely clear. Whether the preamble to an Act is considered as an integral part of the statute or not, the general rule with regard to its effect upon the enacting part of the statute has always been that if the meaning of the enactment is clear and unequivocal without the preamble, the preamble can have no effect whatever. In the case of the Sussex Peerage Claim [1844] EngR 822; (1844) 11 CL. & F. 85, 143, the judges enunciated the rule as follows: "If any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting the intention to call in aid the ground and cause of making the statute, and to have recourse to the preamble, which, according to Chief Justice Dyer in Stowel v Lord Zouch (1562) Plowd. 353, is 'a key to open the minds of the makers of the Act, and the mischiefs which they intended to redress."' (See also Income Tax Commissioners v Pemsel [1891] A.C. 531, 542 per Lord Halsbury L.C) Again the rule was stated to be thus in Powell v Kempton Park Racecourse Co [1899] UKLawRpAC 11; [1899] A. C. 143, 157 by Lord Halsbury: "Two propositions are quite clear, one that a preamble may afford useful light as to what a statute intends to reach, and the other that if an enactment is itself clear and unambiguous, no preamble can qualify or cut down the enactment." And Lord Davey in the same case at p 184 said: "But, further, I am of opinion that the argument itself is illegitimate if it is sought thereby to cut down the language of the enactment according to its plain and natural meaning or to restrict the enactment to the particular matter set forth in the preambles. Undoubtedly' I quote from Chitty L.J.'s judgment words with which I cordially agree 'it is a settled rule that the preamble cannot be made use of to control the enactments themselves where they are expressed in clear and unambiguous terms.' But the preamble is the key to the statute, and affords a clue to the scope of the statute, where the words construed in themselves without the aid of the preamble are capable of more than one meaning. There is, however, another rule or warning which cannot be too often repeated, that you must not create or imagine an ambiguity in order to bring in the aid of the preamble or recital. To do so would in many cases frustrate the enactment and the general intention of the legislature." The Criminal Procedure Code became law on 1 October 1981 and the Constitution became law on the 30 July 1980. It is plain that the intention of the Act was to provide, from the outset, a special procedure for Constitutional applications other than that provided for civil and criminal procedures. The language of the section can leave no doubt as to the intention of Parliament. Therefore, the rules that must apply in all Constitutional applications before the Court for the exercise of its special jurisdiction in Constitutional matters are the rules set out in Section 218 of the Criminal Procedure Code Act Cap 136. It follows that all applications before the Court for the exercise of its special Constitutional jurisdiction must of necessity follow the rules set out in Section 218 of the Act, certainly in so far as the initial application is concerned. Those rules state as follows:

218. (1) Every application to the Supreme Court for the exercise of its jurisdiction under Articles 6, 53(1), 53(2) and 54 of the Constitution shall be by petition and shall be valid no matter how informally made.

(2) The Supreme Court may on its own motion or upon application being made therefor by any party interested in the petition summon the petitioner before it to obtain any further information or documents it may require.

(3) The petitioner shall, within 7 days of the fling of his petition in the Supreme Court or within such longer period as the Court may on application being made therefor order, cause a copy of the petition together with copies of supporting documents filed in relation to such petition to be served on the party or on all those parties whose actions are complained of.

(4) Any party who is served with a copy of the petition in pursuance of subsection (3) may without prejudice to any other legal remedy available to such party apply to the Supreme Court for an order dismissing the petition on the ground that the petition is without foundation or vexatious or frivolous.

(5) Unless the Supreme Court shall be satisfied in the first instance that the petition is without foundation or vexatious or frivolous, it shall set the matter down for hearing and inquire into it. It shall summon the party or parties whose actions are complained of to attend the hearing.

(6) On the day appointed for hearing, the Supreme Court shall enquire into the matters raised by the petition and after hearing all parties concerned shall give its decision and its order or directions (if any) thereon in open court.

The above rules foresee that all Constitutional applications pursuant to the above mentioned Articles of the Constitution shall (which here means must) be by petition. Furthermore the drafting of such a petition does not require any formality and it has to be accepted however informally made. Subsection (2) allows the Court either on its own motion or on application by an interested party to apply for further information or documents from the petitioner. Under subsection (3) the petitioner has 7 days (or longer if the Court upon application made therefor order) to serve a copy of the petition and the supporting documents on the parties whose actions are complained of. Under subsection (4) the parties served can apply for the petition to be dismissed on certain grounds, namely that the petition is without foundation or vexatious or frivolous. Subsection (5) makes it clear that if the Court is satisfied in the first instance that the petition is without foundation or vexatious or frivolous it shall not set it down. It is only if the Court is not so satisfied in the first place, that it must set the matter down. It is implicit in this subsection that it is the party whose action is complained of who has the burden of satisfying the Court that there is no foundation to the petition or that the petition is vexatious or frivolous. Unlike the civil procedure rules, which require the pleadings to disclose a "reasonable cause of action or defence," and in practice does not allow for a preliminary hearing as in criminal case the rules under Section 218 allow "any party who is served to apply to the Court for an order dismissing the petition on the ground that the petition is without foundation etc ..." and the Section at subsection (5) enjoins the Court that "Unless the Supreme Court shall be satisfied in the first instance ... " it must set the matter down for hearing. That presupposes that the party has had an opportunity to satisfy the Court that the petition is without foundation etc... and has failed to do so. In turn that implies that the party shall be allowed to do so in whatever way he can and that in order to do so he may be allowed to tender or call evidence. There is not attached to the rules under Section 218 any bar to the calling of evidence as there is in the civil procedure rules. Indeed the practice in Vanuatu has been that a preliminary inquiry is usually carried out and that the party petitioned is permitted to tender or call evidence in order to show that there is no foundation to the petition. The word "foundation" in the Act has a far stronger connotation than the words "reasonable cause of action" in the rules. A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered (per Lord Pearson in Drummond-Jackson v British Medical Association [1970] 1 All E.R. 1094 C.A.) So long as the pleading or the statement of claim or the particulars (Davey v Bentinck [1892] UKLawRpKQB 216; [1893] 1 Q.B. 185) disclose some cause of action, or raise some question fit to be decided by a judge or a jury, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out (Moore v Lawson (1915) 31 T.L.R. 418, C.A.; Wentlock v Maloney supra). The Act, on the other hand, requires that there should be foundation to the petition. If the Court is satisfied that the petition is without foundation in the first instance, than the matter cannot be set down for hearing. Therefore, the practice has grown in Vanuatu for a preliminary inquiry to be carried out, not unlike preliminary inquiries in criminal cases, and the respondent may, by the calling of evidence or otherwise, satisfy the Court that there is no foundation to the petition or that the same is vexatious or frivolous. It is also implicit in the section that such applications are of an interlocutory nature and furthermore the practice in Vanuatu has been that such applications are held in chambers and not in open Court. The reason for that is, that on the whole, Constitutional petitions are often of a sensitive nature that may affect national or personal interests in a manner that an ordinary civil action would not. Furthermore, since the rules allow for the petitions to be dismissed on the ground of the lack of foundation of such petitions, it would be wrong for them to be aired in public until the Court is, in the first instance at least, satisfied that there is merit to the claim raised therein. Indeed, under Section 218 (6), it is only the Court's decision following a full hearing that must be given in open Court.

Because of the informal nature of such a petition under the Act, counsel for the Ombudsman, rightly, did not apply for the Originating Summons to be dismissed simply because the proceedings had not begun by petition, but instead submitted that the procedure to be adopted should be the one under Section 218 of the Criminal Procedure Code Act rather than under the civil rules set out in the Western Pacific High Court Rules (the Blue Book). I entirely agree with that submission. There are no other rules that can apply to such applications except for the rules established by Parliament under Section 218 of the Criminal Procedure Code Act CAP 136. That in turn, entitles the respondent to set in motion the special investigative procedure to have the petition dismissed for want of foundation, pursuant to section 218 (4) of the Act and she cannot be denied it.

When an application is made pursuant to Section 218(4) of the Act the Court must look into the matter carefully. If the Court is satisfied that the matter is without foundation etc ... the case will be dismissed. But unless so satisfied in the first instance, it must set the matter down and enquire into it before proceeding to give its decision. It is to be noted as said previously in the case of Vohor and others v Kalpokas and others, Civil Case 29 of 1996, that: "It is not every breach of the Constitution that is justiciable, nor indeed can a party complain of a breach of the Constitution in relation to a third party. He must establish prima facie that there has been a breach of the Constitution in regard to himself. Unless he does so, he has no cause of action". If therefore in the first instance the respondent is able to satisfy the Court that there has been no justiciable breach or that there has been no infringement of the Constitution in relation to the petitioner, the petition will be dismissed.

In this present matter the relevant agreed facts can be simplified as follows:

1. 3 November 1994 letter from the Ombudsman informing the petitioner (The Hon Willie Jimmy) of her decision to start an investigation.

2. Letter dated 30 November 1994, in reply to letter of 3 November, from the petitioner to the Ombudsman.

3. Letter dated 7 December 1994, in reply to letter of 30 November 1994, from the Ombudsman to petitioner.

4. Letter dated 2 June 1995 from the petitioner to the Ombudsman forwarding information.

5. Letter 8 June 1995 from the Ombudsman to the petitioner in reply to letter of 2 June 1994.

6. 18 September 1995 the Ombudsman Act comes into force.

7. Letter dated 24 October 1995 from the Ombudsman to the petitioner enclosing a preliminary report containing "The findings of the investigation conducted into [the Nambawan Bottle Shop] for your consideration and comments within 14 days upon receipt of the Report, as required under Section 16(4) of the Ombudsman Act No 14 of 1995."

8. Letter dated 2 November 1995 from the petitioner in reply to the Ombudsman's letter of 24 October to him requesting until 30 November 1995 to comply with the above request on the grounds that he has urgent matters to deal with concerning the general elections that was imminent.

9. Letter dated 3 November 1995 from the Ombudsman to the petitioner in reply to his letter of the 2 November 1994 agreeing to an extension of time by one day.

Mr Moti for the petitioner submits as follows:

i) Since the Ombudsman started her inquiry on the 3 November 1994 as indicated to the petitioner in her letter to hire of that date, she could not have done so pursuant to the Ombudsman Act, since that Act only came into effect on the 18 September 1995. Consequently her inquiry must have been carried out pursuant to the powers vested in her under Article 62 of the Constitution. Therefore the Ombudsman was bound to follow the dictates of Article 62 and to provide to the petitioner the right to reply to the complaints made against him before she embarked upon her inquiry.

It is true that no statute, unless it expressly says so, or from the wording of the statute itself, makes it clear that it is to be retrospective, no statute can have retrospective effect. The Ombudsman Act came into force on the 18 September 1995 without any retrospective powers, and the wording of the Act itself are such that it cannot be said to have any retrospective effect. In the absence of anything in an Act to show that it is to have a retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act is passed: see Leeds and County Bank v Walker [1883] UKLawRpKQB 119; (1883) 11 Q.B.D. 84 at p 91; and Colonial Sugar Refining Co. v Irving [1905] UKLawRpAC 29; [1905] A.C. 369. So careful are the Courts in endeavouring to protect vested rights that we find that in several cases judges have refused to allow statutes to have a retrospective operation, although their language seemed to imply that such was the intention of the legislature, because if the statutes had been so construed, vested rights would have been defeated. In Gardner v Lucas (1878) 3 App.Cas 582, 603, Lord Blackburn stated this rule of law in the following way with regard to the effect of a statute upon a transaction past and closed. "Where, " he said, "the effect would be to alter a transaction already entered into, where it would be to make that valid which was previously invalid, to make an instrument which had no effect at all, and from which the party was at liberty to depart as long as he pleased, binding, I think the prima facie construction of the Act is that it is not to be retrospective, and it would require strong reasons to show that it is not the case." But it must be noted that there is no vested right in procedure or costs. Enactments dealing with these subjects apply to pending actions, unless a contrary intention is expressed or clearly implied. In Re Joseph Suche & Co., Ltd. (1875) 1Ch.D. 48, 50; Jessel M.R. stated: "It is a general rule that when the legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. But there is an exception to this rule, namely, where enactments merely affect procedure and do not extend to rights of action. " This rule was first distinctly enunciated by the Court of Exchequer in Wright v Hale [1860] EngR 1191; (1860) 30 L.J. EX. 40, 42 by Pollock C.B. as follows: "I have always understood that there is a considerable difference between laws which affect vested rights and those laws which merely affect the proceedings of courts; as, for instance, declaring what shall be deemed good service, what shall be the criterion to the right to costs, how much costs shall be paid, the manner in which witnesses shall be paid, or what witnesses the party shall be entitled to and so on ... I do not think a matter of that sort can be called a right in any sense in which Lord Coke in his Institutes has spoken of rights." In Gardner v Lukas (1878) 3 App.Cas. 582, 603 Lord Blackburn stated: "It is perfectly settled that if the legislature forms a new procedure, that, instead of proceeding in this form or that, you should proceed in another and a different way clearly there bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be.” I agree that the Ombudsman did start her inquiry pursuant to the powers vested in her under part II of Chapter 9 of the Constitution. But, for the reasons that I have cited above, it does not follow that the procedures under the Ombudsman Act would not apply to the proceedings once the Act became law on 18 September 1995. The inquiry started in November 1994 was pursuant to the Constitution and not the Act, but the Act does not take away any accrued rights of the petitioner. It merely sets out the procedure whereby the Constitutional obligations will operate. Indeed section 16 of the Act is headed: "PROCEDURES OF THE OMBUDSMAN" and goes further than is strictly required under the Constitution by providing certain procedural steps that must be followed by the Ombudsman that in no way affect the accrued rights of the petitioner. I will return to that matter later.

Mr Moti further submits that the Ombudsman acted in breach of Article 62 (4) of the Constitution which states:

"The Ombudsman shall grant the person or body complained of an opportunity to reply to the complaints made against them."

Mrs Bothman-Barlow for the Ombudsman submits that the petition is without foundation, pursuant to Section 218 (4) of the Criminal Procedure Code Act and invites the Court to dismiss it pursuant to Section 218 (5) of the same Act. She calls no evidence in support of her contentions nor does she seek to do so. She relies instead, as she is entitled to do, on Affidavit evidence and particularly on the correspondence disclosed in the petitioner's own Affidavit dated 7 December 1995; more particularly on the Ombudsman's letters of the 24 October and 3 November 1995 in which the Ombudsman allows the petitioner 14 days to comply with her request.

Mr Moti counters that submission by further submitting that it is implicit in a proper construction of Article 62 (4) of the Constitution, that it is not enough for the Ombudsman simply to make an offer to the person complained of to reply to the complaints levelled against him. He submits that in the words "an opportunity to reply" is implicit the word "proper" opportunity to reply and if therefore his client was not afforded sufficient time in all the circumstances of the case, to provide a reply, then his constitutional right under article 62 (4) was breached. He relies on his client's letter dated of the 2 November 1995 which says:

"I acknowledge your preliminary report dated 24 October 1995, concerning your findings about Nambawan Bottle shop and regret to advise that I had not yet read through the report and be in a position to comment as requested.

The reason being that during the time of your submission I was away on Government Mission Overseas attending SPC meeting in New Caledonia from 24th to 30th October. The 14 days limit ends, I presume by 8th November, I shall do my best, but cannot promise as I have other priority matters to attend to involving election etc.

I would appreciate if this time could be extended to 30th November, 1995.”

To this letter the Ombudsman replied granting the petitioner an extra day's extension. Mr Moti submits that the Court can take judicial notice of the fact that the petitioner was at that time the Minister of Finance and that the elections were due on the 30 November. That at that time all the political parties were in the middle of campaigning. He submits that in all the circumstances prevailing at the time, the request by the petitioner for an extension of time to the end of the month to reply was not an unreasonable request and that it should have been granted. He further submits that not to have done so in the circumstances was unreasonable, and amounted to a breach of Article 62 (4) in that the petitioner was not allowed the reasonable time implicit in the Article.

I accept Mr Moti's submission that it is implicit in Article 62 (4) of the Constitution that not only must the party complained of be given an opportunity to reply, but that he must be given reasonable time in which to do so. Failure to afford reasonable time, taking into account all the surrounding circumstances, would be tantamount to a failure to grant "an opportunity to reply" within the terms of the Constitution. In all the circumstances of this particular case, the Ombudsman ought to have granted the extension of time requested by the petitioner. Her failure to do so would amount to a breach of Article 62 (4). Therefore I find in the first instance that the Ombudsman has failed to satisfy me that the petition is without foundation. In the normal course of event and pursuant to Section 218 (5) I would set the matter down for hearing and enquire into it.

Both parties urge the Court to do so straight away and indicate that they have no witnesses that either of them wish to call. They rest on their previous submissions.

Upon the facts that I have read and the submissions that I have heard from Counsel, I am satisfied that there has been a breach of Article 62 (4) of the Constitution by the Ombudsman in as much as she did not afford reasonable time as implicit in this Article for the petitioner to reply. I am satisfied that this breach was such that it therefore infringed a provision of the Constitution in relation to the petitioner in the terms of Article 53 (1).

Mr Moti further submits that the opportunity to reply referred to in Article 62 (4) of the Constitution, is to the 'complaints' and that this implies that the Ombudsman must afford an opportunity to the party to reply to the complaints made against him before she embarks upon her inquiry. There is no doubt that the Constitution requires that the Ombudsman should afford to the party complained of an opportunity to reply to the 'complaints' level at him. It does not entitle the Ombudsman to hold an inquiry, come to a decision and then send her report to the party for his comments before she publishes it. She must consider his comments on the complaints before she comes to any decision. At the same time there is no requirement, either expressed or implied in Article 62 of the Constitution that prevents the Ombudsman from deciding to start an inquiry after receiving complaints about a party, and in the meanwhile to send the party notice of the complaints made against him and invite his comments. It will all depend on the procedure that the Ombudsman decides to adopt. The importance is that there should be procedural fairness to the party whose conduct is complained of. There is no procedural unfairness in the Ombudsman having decided to embark into an inquiry upon receipt of complaints, for her to continue her inquiry while requesting a reply complaints that she has sent to the party whose conduct is complained of and considering his reply as an element in the overall picture of the inquiry. I can see no problems in the Ombudsman adopting say the following procedure (though I do not wish to imply thereby that it is the only correct way of going about it):

1) Receipt of complaints;

2) Study them in order to decide if they are of a sufficiently grave nature for her to inquire into them. This may involve some preliminary investigation in order to see if she will start an inquiry or not;

3) Decide that she will conduct an inquiry;

4) Inform the party complained of about the complaints and request a reply;

5) Upon receiving the reply, decide whether she will continue with the inquiry or not;

Then proceed through the steps of Article 63 of the Constitution.

What is important to remember is that the rules of natural justice apply to an Ombudsman's inquiry as it applies to any other quasi judicial investigation. If the inquiry has lacked the minimum procedural fairness implicit in those rules, then any decision of the Ombudsman is open to the judicial review procedures.

Mr Moti submits further and in the alternative, that the Ombudsman acted in breach if Section 16 (4) (b) of the Ombudsman Act in that it is claimed that the Ombudsman failed to grant to the petitioner an opportunity to reply to the complaints in accordance with the Act. He seeks therefore a declaration of the same. Section 16 (4) (b) states:

"Where a report of the Ombudsman may affect the person complained of, he shall grant to that person an opportunity to reply to the complaints made against him, either orally or in writing"

Section 16 (4) (c) states:

"Where the Ombudsman publishes an opinion that is adverse to a or derogatory of any ... person .... he shall, unless he has obtained the consent of the responsible person to do otherwise, include in the document published the substance of any statement the responsible person may have made in explanation of or opposition to the Ombudsman's conclusions. "

The Act, as is the Constitution, is silent on the period of time that is required to be given to the petitioner in order for him to comply with the request. It is in my view, implicit in the Act that reasonable time to comply with the request must be given to the person complained of. It will not always be the same period of time in every case. It is a matter of what is reasonable in all the circumstances of a particular case. The more serious the investigation and the more complex the allegations of impropriety, the more time may be required to be given. A party complained about may wish to take legal advice and ought to be allowed sufficient time to do so if he requests it. It is always a matter of judgment and fairness for the Ombudsman to decide how long she will permit. For the same reasons that I have stated above therefore, I hold here that reasonable time was not afforded to the petitioner to comply with the request before the report was made public.

Finally, Mr Moti submits that the fact that the Ombudsman mentions in the first page of her report that she was well placed to have first hand knowledge of the initial complaints that gave rise to the inquiry because her family and herself lived in the vicinity of the shop, placed her in a position whereby she could not thereafter be seen to have acted fairly in the conduct of her inquiry, resulting in her report being bias. I do not accept that submission at all. The Ombudsman is not there to investigate public order offences or the behaviour of members of the public at large. Nor is she there to decide if a criminal offence has been committed or not. Her role is to investigate matters of complaints of an administrative nature and abuses of public office by certain categories of persons of whom the petitioner forms part. The fact that she had first hand knowledge of certain matters of public order which happened to have caused members of the public to complain to her, as a result of which she decided to investigate the acquisition by the petitioner of certain licences which would normally have been granted through his Office, cannot in my view be the subject of proper objection by the petitioner. There can be neither bias nor perceived bias in the Ombudsman thereafter conducting the inquiry that she did. The public order matters of which she had first had knowledge (and as did, I might add, everyone else living on Efate), was the trigger for the inquiry, not the subject matter of the inquiry itself. Nor does the Ombudsman have any personal interest in the subject matter of the inquiry. I therefore do not agree with that submission made by learned counsel for the petitioner on that matter.

Therefore, pursuant to the powers vested in this Court by Article 53 (2) of the Constitution, I make the following Declaration:

1) That the Ombudsman in the conduct of this inquiry acted in contravention of Article 62(4) of the Constitution, and ultra vires Section 16 (4) (b) of the Ombudsman Act No 14 of 1995, in that she failed to give to the petitioner an opportunity to reply to the complaints made against him, for the reasons set out in the judgment above.

2) The Court makes no finding that the Ombudsman's failure to comply with the provisions of Article 62(4) and ultra vires Section 16 (4) (b) of the Ombudsman Act No 14 of 1995 was not made bona fide or that it was made negligently, so that the immunities pursuant to section 33 of the Act stands.

3) The Ombudsman's final Report dated 16 November 1995 and sent to the Prime Minister is set aside an is hereby declared null and void and of no effect. And it is further Ordered that the Ombudsman do cause to be withdrawn forthwith from circulation all copies of the said report.

4) The provisional report of the Ombudsman dated 19 October 1995, and sent to the petitioner, may be treated as 'a notice of complaints' to the petitioner pursuant to Article 62 (4) of the Constitution and Section 16 (4) (b) of the Act.

5) The petitioner has 21 days from the 18 March to comply with the request.

6) The costs of this application shall be paid by the first respondent to the petitioner; to be taxed or agreed.

The Declarations and Orders made by this Court on the 18 March 1996 are set aside and replaced by the Declarations and Orders made herein.

Dated this 26 day of March 1996.

CHARLES VAUNDIN d`IMECOURT
Chief Justice