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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATUCIVIL JURISDICTION
CIVIL CASE No. 119 OF 1997
IER">IN THE MATTER
of the Constitution of the Republic of VanuatuAND:
IN THE MATTER
of the Vanuatu National Provident Fund Act [CAP. 189]AND:
IN THE MATTER
of an Application by DINH VAN THAN for declaratory and injunctive relief
regarding the purported removal by the Hon. WILLIE JIMMY, Minister of Finance
of the Petitioner and Applicant from the statutory offices of Chairman and
Board Member of the Vanuatu National Provident Fund Board.BETWEEN:
DINH VAN THAN
of P.O. Box 205, Port-Vila,
Efate in the Republic of Vanuatu
Petitioner and ApplicantAND:
HON. WILLIE JIMMY,
Minister of Finance,
Port-Vila, Efate in the Republic of Vanuatu
First RespondentAND:
GOVERNMENT OF THE REPUBLIC OF VANUATU
represented by its Attorney General
Second RespondentCoram: Mr Vincent Lunabek, Judge/Acting Chief Justice
Counsel: Mr Mark Hurley for Petitioner/Applicant
Mr Ishmael Kalsakau for the First and Second Respondents
JER">JUDGMENT
By Motion dated 18 August 1997, the First and Second Respondents apply to set aside the following Ex Parte Orders issued by this Court on gust 1997:
"... it is ordered that subject to the usual undertakings, costs and damages-
1) The First Respondent and Second Respondent be and are hereby injuncted from removing the Petitioner and/or declaring a vacancy and/or taking any steps to replace the Petitioner in respect of the office of a member and the Chairman of the Vanuatu National Provident Fund Board otherwise than in accordance with Section 3(3) and 4(2) of the Vanuatu National Provident Fund Board Act pending the hearing by the Court of Appeal of an appeal in Civil Case No. 101 of 1997;
....."
The Respondents apply on the grounds that the Orders sought to be set aside were irregular. They seek to rely also on an Affidavit of one Peter Sali in support thereof.
It is to be noted that on 7 August, 1997, a judgment was delivered by my brother Judge, Mr Justice Oliver Saksak between the Petitioner/Applicant and the First Respondent and the Second Respondent. One of the issue dealt with by His Honour, is about the purported replacement or removal of the Petitioner/Applicant from the Office of Chairman of the V.N.P.F. Board by the First Respondent on 18th July 1997. His Honour Mr Justice Oliver Saksak ruled, inter alia, that the purported replacement or removal is declared null and void and of no effect. More importantly he refused to grant an Order injuncting the First Respondent from declaring a vacancy in respect of the Office of the Chairman of the V.N.P.F. Board otherwise than in accordance with Sections 3(3) and 4(2) of the V.N.P.F. Act pending further Order of the Court. This is exactly the same question which was brought again before this Court on Ex parte Summons in the late afternoon of 13 August, 1997. These Orders were granted Ex parte on the basis of urgency.
On 19th August, 1997 the Respondents sought to set aside the Ex Parte Orders of 13th August 1997 on the basis of irregularity.
Before the Respondents proceeded further with their Application, Counsel for the Applicant/Petitioner objected on several points:
The first point of objection is that on a Motion seeking to set aside an Order for irregularity, the grounds of objection must be stated in the Notice of Motion. The Petitioner refers this Court to Order 69 Rule 3 of the Western Pacific High Court (Civil Procedure) Rules of 1964 which reads:-
"where an application is made to set aside proceedings for irregularity, the several objections intended to be insisted upon shall be stated in the Summons or Notice of Motion."
This Court was also referred to Order 2 Rule 2(2) of the Supreme Court Practice (English) of the White Book in its 1993 Volume to the same effect. The English Case of Re Petty v. Daniel [1886] UKLawRpCh 219; (1887) 34 Ch.D. 172 was cited before me as a persuasive authority on that basis.
In that case, Mr Justice Kay says that:
"if the Notice of Motion does not state the several objections to be insisted upon, the Applicant cannot rely upon them, and the Court cannot be asked to set aside the Order for irregularity." (at p.180)
The Petitioner submits that in the case before the Court, the grounds of objection are not stated in the Notice of Motion, therefore, the Respondents cannot rely upon them and asks the Court to dismiss the present Motion.
The Second point of objection on behalf of the Petitioner is that the Respondents cannot rely on the Affidavits of one Mr Peter Sali. That Affidavit relates to the merit of the case.
It is also submitted for the Petitioner that application to set aside Orders for irregularity is analogous to a situation where the Court is asked to strike out the pleadings.
The test of irregularity is for the court to look at the pleadings whether they disclose a reasonable cause of action and not to consider fresh evidence.
In this case, Mr Hurley submits, when one looks at issues raised on the pleadings, it would be impossible to say that the Constitutional Petition does not disclose any reasonable cause of action.
It was also put for the Petitioner that the Ex parte Orders sought and granted by this Court on 13 August, 1997 were made after the Court is satisfied that:
1. The Petitioner has a good arguable case.
2. There is a serious question to be tried.
3. Balance of convenience were also considered.
These are the three (3) requirements for Interlocutory Orders contained in the leading judgment of Lord Diplock in American Cynamid Case (1975). A.C. 306 which summarises the basis of law on these points.
It is said for the Respondents that on 7 August 1997 Mr Justice Oliver Saksak delivered a judgment on the issue which is now again put before this Court. The issue was specifically that the Petitioner/Applicant sought a declaration from His Honour Judge that the First Respondent be injuncted from declaring a vacancy in respect of the Office of the Chairman otherwise than in accordance with Sections 3(3) and 4(2) of the V.N.P.F. Act pending further Order of the Court. Mr Justice Saksak, as I said earlier on, refused to grant the declaration sought.
The Respondents say that until the judgment of His Honour Judge is overturn on appeal, it is the law within the Republic.
They further say that it is malicious for any advocate to come before any Judge to create a competition between the judges of the Supreme Court. They argue further that the Notice of Appeal has not been lodged and it is in the discretion of the Court to set aside Ex parte Orders.
They say also that it is prudent of the Petitioner to disclose in the Petitioner’s Affidavit of 13 August, 1997 various portions of the judgment of Mr Justice Oliver Saksak.
I have, now an opportunity to hear both sides. Having heard both Counsels, I consider some of the arguments for the first time inter partes. I feel bound to say that I doubt whether I should ever have granted the Ex parte Orders in the terms sought on 13 August 1997, in the first place, even on Ex parte.
I have not the benefit of seeing a copy of the judgment of Mr Justice Oliver Saksak delivered on 7 August 1997. Even if on 13 August, Counsel for the Petitioner just mentioned it in Court. This judgment dealt with many issues. One of these issues already dealt with by the learned Judge is about the removal of the Petitioner/Applicant as Chairman of the V.N.P.F. Board. Mr Justice O. Saksak ruled that the removal of the Petitioner on 18 July 1997 by the said Respondent is null and void and of no effect in this particular instance.
Mr Justice Saksak further stated that in his view, Section 3(3) of the V.N.P.F. Act relates only to declaration of vacancy which if existed, would amount to termination. His Honour further said that if the Minister responsible for V.N.P.F. Board is not satisfied with the criteria contained in Section 3(3) of the said Act, then the Minister has a general power under Section 21 of the Interpretation Act to act.
I have to put emphasis on the fact that no copy of this judgment was put before this Court on 13 August. I need to insist on that because it is one of the material that, I, as the Presiding Judge in this matter should have been informed about the specific portions of the said judgment which are of interest here and because of the fact that it relates to an issue already adjudicated upon by another Judge of this Court.
I must also say that this Court is only bound by the decisions of the Vanuatu Court of Appeal.
I find that he Respondents do not comply strictly with the provision of Order 69 Rule 3 of High Court Rules in the Blue Book.
I find also that the Petitioner did not disclose fully the relevant material before this Court on 13 August, 1997. I bear also in mind that this is an application to set aside an Order issued on Ex parte.
As a matter of law, I must point out that an interim or interlocutory injunction may be discharged/set aside at any time on the application of the party enjoined, or, in the case of an ex parte order obtained improperly, by the Court of its own motion at the hearing on Notice [Harbottle Ltd v. National Westminster Bank Ltd [1978] Q.B. 146 at 157]. Where the Plaintiff on an Ex parte hearing has omitted, even though on error of judgment, to make full disclosure of all material matters, the Order must be discharged inter partes without investigating the merits [Thermax v. Schott Industrial Glass Ltd (1981) F.S.R. 289]. [See Injunctions, David Bean, 5th Edition 1991, Longman (at p.98)].
In this case, I accept that the Respondents do not comply with Order 69 Rule 3 of the High Court [Civil Procedure] Rules in the Blue Book.
But in the circumstances of this case I do not accept that the Petitioner by failing to disclose all material matters before me on 13 August, 1997 can hide behind the procedural technicality of the provision of Order 69 Rule 3 of the "Blue Book".
It is my view that the Petitioner has to come before this Court with "clean hands" in the first place and, only then, he could invoke in his favour the provision of Order 69 Rule 3 of the Blue Book.
Furthermore, under the circumstances of this case, I hold the view that the procedural error cannot render the proceedings void [see Order 69 Rule 1] of the Blue Book.
During inter parte hearing, I discover, as conceded by the Petitioner’s Advocate that some issues are cut across what was already decided by Mr Justice Saksak but there are also new issues before this Court.
The issues already canvassed related to the status of the Petitioner/Applicant as Chairman of the V.N.P.F. Board. The New issues are about removal of the Petitioner/Applicant as a Member of the V.N.P.F. Board.
If I had the judgment of Mr Justice Oliver Saksak before me on 13 august 1997, I would never issue an Order in the terms sought as far as the Petitioner/Applicant is concerned as the Chairman of the V.N.P.F. Board.
I note that the Petitioner wishes to litigate again before this Court over an identical question which has already been decided against him even though the matter is not strictly re-judicata. This is an abuse of Process of Law. The only avenue for the Petitioner as far as he is concerned as the Chairman of the V.N.P.F. Board is to lodge an appeal against the judgment of Mr Justice Saksak.
I must stress the point that the "local shopping" before the Judges of the Supreme Court on the same issue already dealt with by another Judge of the Supreme Court in the hope of obtaining preferable judgment is not permitted unless where circumstances have altered and new grounds for the application are available. This is not the situation vis-�-vis the Petitioner as Chairman of the V.N.P.F. Board in this instant case. The only avenue for the Petitioner as Chairman of the V.N.P.F. Board, and I must repeat, is to appeal the decision of Mr Justice Saksak issued on 7 August, 1997.
However, as far as the Petitioner/Applicant is concerned as a Member of the V.N.P.F. Board, it is my view that the Petition established that he has a good case to argue and that there is also a serious question to be tried.
Having said that, it is my view that part of the Affidavit of Mr Peter Sali which relates to issues already dealt with by Mr Justice Oliver Saksak can be relied upon by the Respondents.
Under these circumstances, I am prepared to vary the terms of the Ex parte Orders made on 13 August 1997 in the following terms:-
1) The injunctive Order restraining the First Respondent and the Second Respondent from removing the Petitioner and/or taking any steps to replace the Petitioner in respect to the office of the Chairman of the Vanuatu National Provident Fund Board otherwise than in accordance with Sections 3(3) and 4(2) of the V.N.P.F. Board Act is suspended pending the hearing by the Court of Appeal of an appeal in Civil Case No. 101 of 1997. (if there is any)
2) The First Respondent and Second Respondent be and are hereby injuncted from removing the Petitioner and/or declaring a vacancy and/or taking any steps to replace the Petitioner in respect of the Office of a Member of V.N.P.F. Board Act until final determination of this matter.
3) It is further ordered and directed that Civil Case No. 119 of 1997 be listed and dealt with together with Civil Case No. 96 of 1997.
4) The costs of this application be costs in the cause.
DATED AT PORT-VILA, this 20th DAY of AUGUST 1997
VINCENT LUNABEK J.
Acting Chief Justice
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