Civil Case No. 137 of 1997
Counsel: Mr Robert Sugden for the Plaintiff.
&nnbsp;;&bspp;&bssp;&bbsp;&bsp; Mr
ack Kilu, Solicitor Genr General, ral, for the Defendants.
ENT
History
ThY">The Plae Plaintiff applied to this Court by way of an Originating Summons
filed under Order 58 of the High Court Rules 1964
seeking the following declarations and
Orders: -
1. A Declaration that the decision of the First Defendant made on or about the 30th
May, 1997 that its appointment in 1995, of the Plaintiff to the position of
Auditor-General was illegal and void, is
ultra vires and of no effect.
2. In the alternative, an Order of Certiorari, requiring the First Defendant’s
decision of about the 30th May 1997 that its appointment, in 1995 of the
Plaintiff to the position of Auditor-General was illegal and void, be brought
up and
quashed on the grounds :-
- that its decision was ultra vires;
- that in reaching that decision the First Defendant denied the Plaintiff natural justice.
3. An Order of Mandamus requiring the Second Defendant to pay to the Plaintiff his
salary and all other entitlements for the
15th July 1997 and thereafter
according to law.
4. An Order that the Third Defendant restore to the Plaintiff the keys to his office
and the motor vehicle supplied to him
for his use as Auditor-General and take no further
steps to prevent him from carrying out his duties as Auditor-General.
5. An Order that the Second Defendant pay interest on any salary instalment not paid
at the time at which they should have
been paid, from the date upon which they should have
been paid until payments at the rate of 12% per annum.
6. An Order that the Defendants pay the Plaintiff’s costs to be taxed or agreed.
The Summons was dated 14th July 1997 and filed on 10th
September 1997. The Solicitor General filed a Memorandum of Appearance dated 30th
September 1997 on behalf of all the three Defendants on 7th October 1997. The
original date fixed for the trial of this matter was Friday 27th March 1998. Mr
Bill Bani appearing in place of the Solicitor General made application for an adjournment
for reason that
the Solicitor General was out of the jurisdiction. The Court allowed the
application and granted the adjournment with costs,
fixing trial for 21st April
1998 at 9 o’clock in the morning. The hearing took 1-� days from 21st to
22nd April 1998.
The Facts
The Plaintiff was appointed by the Public Service Commission (First
Defendant) by letter dated 10th May 1995.
On 24th May 1995 the Ombudsman commenced investigation into
the appointment of her own initiative.
On 6th March 1997 the Ombudsman issued a Report and sent it
to the First Defendant. Between 6th March 1997 and 30th May 1997 the
First Defendant considered the Report and without any notice to the Plaintiff, dismissed
him by letter dated
30th May 1997.
On 30th June 1997 the Second Defendant stopped payments of
the Plaintiff’s salaries. And on 8th July 1997 the Third Defendant took
the Plaintiff’s keys, car and barred him from entering his office.
Allegation
The Plaintiff alleges that the actions of the Defendants were unlawful
and claims that he is entitled to return to office and
to have all his benefits restored
to him.
Evidence
The evidence in support of the Plaintiff’s allegations and
Declarations and Orders are contained in the Affidavit of the
Plaintiff sworn on 16th
July 1997. The affidavit was read into evidence by Counsel for the Plaintiff.
Issues
The issues as submitted to the Court by Mr Sugden are as follows: -
- Whether or not the First Defendant was the proper authority to dismiss the Plaintiff?
- In taking the decision to dismiss the Plaintiff whether or not the Plaintiff was
afforded natural justice?
Plaintiff’s Arguments And Submissions
The Plaintiff’s Counsel argued in relation to the first issue that
ublic Service Commission was not the proper authority to
dito dismiss the Plaintiff. Mr Sugden
submitted that it was the Parliament which had legal authority to dismiss the Plaintiff.
He referred the Court to Section 2 of the Audit of Public Accounts Act [CAP. 165] which
reads: -
"2(1) There shall be an Auditor General who shall be
appointed by the Public Service Commission on its own initiative to exercise the
functions appertaining to his office as provided by the Constitution and by the provisions
of this
Act.
(2) The Auditor General shall hold office for a term of 6 years
but may be removed for cause by resolution of Parliament at any time. (emphasis
added)
………;
(4) ………;
(5) ………"
Counsel for the Plaintiff submitted that in view of section 2(2) of the
Audit of Public Accounts Act, it is Parliament which
should have dismissed the Plaintiff
for cause and not the first Defendant. He argued that it was the First Defendant that had
dismissed the Plaintiff, and having done so, Counsel submitted that the dismissal was
void.
Defendants’ Responses and Submissions
The Solicitor General in response submitted that the Plaintiff was
effectively dismissed from his position as Auditor-General.
The main ground for the
Defendant’s submission was that because the Plaintiff’s appointment, first as
Principal
Management Officer in the Public Service Department, and secondly his
confirmation to the permanent post and thirdly his transfer
to the post of Auditor-General
were all unconstitutional and in breach of the Public Service Staff Manual, that his
dismissal
was proper and legally valid.
The Solicitor General relied on the affidavit evidence of Mr Joseph
Calo, Chairman of the Public Service Commission, the First
Defendant.
Counsel for the Plaintiff objected to the Solicitor General reading the
affidavit into evidence because it contains evidence
not relevant to the issues before the
Court. The Court overruled the objection and allowed the affidavit to be read in as
evidence to show which was and is the appropriate authority to appoint and/or dismiss the
Plaintiff from the position of
Auditor General. Paragraphs 17, 18 and 24 of the affidavit
of Mr Joseph Calo were not admitted on the grounds of hearsay and
irrelevancy. Paragraph
22 of the affidavit was partly admitted. The phrase "[Effectively a transfer]"
was inadmissible
on the grounds that it was an opinion.
In submitting that the Plaintiff’s appointment was made in breach
of the Constitution and the Laws, the Solicitor General
relied on Article 57(4) of the
Constitution which reads: -
"(4) The Prime Minister or the Chairman of the Local Government
Council may, exceptionally, make provision for the recruitment
of staff for a specified
period to meet unforeseen needs."
He argued that the Constitutional power given to the Prime Minister is
to be used: -
(a) in exceptional instances;
(b) only for a specified period; and
(c) to meet unforeseen needs.
He argued that none of these criteria was fulfilled therefore the
appointment of the Plaintiff was unconstitutional from the
start.
The Solicitor General referred the Court also to the provisions of
Sections 1.4(f);3.6 and 3.21 of the Public Service Staff Manual
and Article 60(1) and (4)
of the Constitution. Further he referred to Article 58(2) of the Constitution and Sections
10
and 20 of the Public Services Act [CAP.129]. Further he referred to Article 57(7) of
the Constitution and submitted that the
First Defendant had dismissal the Plaintiff
pursuant to that provision. Article 57(7) reads :-
"Public Servants shall leave the Public Service upon reading
retirement age or upon being terminated by the Public Service Commission."
He referred to Section 2(2) of the Audit of Public Accounts Act
[CAP.165] and submitted that this provision was in conflict with
Article 57(7) of the
Constitution. He further submitted that Article 57(7) conforms with Section 21 of the
Interpretation Act [CAP. 132] which provides to the effect that the power to appoint
includes the power to remove. He submitted that as the First
Defendant was the appointing
authority, by Section 21 of the Interpretation, the First Defendant also has authority to
dismiss the Plaintiff as it did. He referred to Section 9 of the Interpretation Act and
submitted that in view of Article 57(7), the dismissal of the Plaintiff is valid and
therefore the First Defendant
did not act ultra vires.
Plaintiff’s Reply
In reply counsel for the Plaintiff submitted :-
- that the Public Service Staff Manual did not have the force of law as they have not been
gazetted. He relied on the Taurakoto’s Case 2 V. L. R., 623 at p.627-628 per
Charles Vaudin d’Im�court, Chief Justice.
- The arguments and submissions of the Defendants were irrelevant to the issues before the
court as the Defendants have not
filed any cross-claims and no notice thereof has been
given and therefore the Defendant could not claim in the Plaintiff’s
action.
- The decision to dismiss the Plaintiff by the First Defendant amounted to the Public
Service Commission acting judicially.
He submitted that this was a usurpation of the
Courts powers under Article 47(1) of the Constitution.
- That if there was any breach of the laws, the Public Service Commission has to be
responsible and not the Plaintiff. He was
merely a recipient, not the decision-maker.
- That the actions of the Prime Minister have insufficient or no evidence at all to
support such actions and in any event this
should only be decided if the proper procedures
were followed by the Defendants.
- That there were only two issues before the Court for its determination.
- That the First Defendant was wrong in making its decision based on the Report of the
Ombudsman.
- That the Audit Public Accounts Act [CAP. 165] was enacted pursuant to Article 25(4) of
the Constitution which reads :-
"(4) Parliament shall provide for the Office of the Auditor-General,
who shall be appointed by the Public Service Commission on its own initiative."
(emphasis
added)
Counsel for the Plaintiff further submitted that Section 21 of the
Interpretation Act is of general application. Section 2(2) of the Audit Public Accounts
Act [CAP. 165] is specific only to the Auditor General
and as such the Interpretation Act
does not apply. Further that Article 57(7) does not apply to the Auditor-General as his
term is 6 years and not a permanent
holder as contemplated by Article 57 of the
Constitution.
He argued and submitted that for these same reasons, Public Service
Staff Manual does not apply to the Auditor General.
Findings of the Court
Issues
There are three issues that this Court has to determine on the evidence
and submissions made to it.
Firstly there is the issue of whether or not the Plaintiff was
appointed. This is crucial prior to determining the other two
issues submitted by Counsel
for the Plaintiff.
By "appointment" here means appointment of the Plaintiff as
Auditor-General. The Court will not be concerned with whether
or not the Plaintiff’s
appointment as Principal Management Officer, his confirmation as Probation Officer and
Permanent
Officer and his transfer to the position of Auditor-General.
- The question therefore is: Was the Plaintiff appointed by the First Defendant as
Auditor-General ?
The Plaintiff says that he was so appointed. The Defendants say that he
was transferred or alternatively if he was, the appointment
was unconstitutional.
On the evidence before me, the Court finds that the Plaintiff was never
appointed to the position as Auditor-General. The Plaintiff
believes that the letter dated
10th May, 1995 annexed "A" to his affidavit is the Appointment
Letter. I set out the full text of that letter :-
"PF. M. Michel 02/472/95
10th May 1995.
Mr Maurice Michel
C/- Public Service Department
Port Vila.
Dear Mr Michel,
I am pleased to be able to advise you that the Public Service
Commission at its meeting of 13th, 19th & 20th April
1995 has now officially approved your appointment to the post of an Auditor-General
in the Audit Office of the Vanuatu Public Service.
Your appointment is effective from 15th May, 1995.
The salary of this post is VT1.723.800 per annum as specified in the
OSA No.18 of 1994.
Your other terms and conditions of service contained in your letter
of appointment remain unchanged.
We are certain that you are well aware of the important
responsibilities attached to your post and we are confident that you
will do your utmost
to discharge those duties.
I take this chance of congratulating you upon your promotion.
Would you please confirm your acceptance in writing if you accept this
letter of appointment.
Yours sincerely,
&nnbsp;;&nspp;&nsp; &nsp; &&nbp;; &nnsp;& &nbp; &nbp; &nnbp;&&nbssp;&nnbsp;;  &nbbsp;
"Accepted""quot;
(Sign) (Here the official stamp)
;&nbssp;&nnbsp;&nbbsp;  & gn)
IFY">A. LeA. Lesines (of the Public Service )
&nnbsp;;& p;bspp; M.el
Dep">Deputy Director ( Administration ) 1n ) 15/05/5/05/95.
CC me Mir’s Office
: Audit Office
>
: : Salary Section
: Public Service Commission" (emphasis added)
This letter was written on the Official Letterhead of the Public
Service Department and by its Deputy Director.
It is not headed "Letter of Appointment" as it should
although in the 4th paragraph of the letter Mr Lesines refers to a letter of
appointment. There is no such letter in evidence. The Court holds that
the letter of 10th
May 1995 was not a letter of appointment. This was merely a letter of advice advising the
Plaintiff of the Commission’s
decision to appoint the Plaintiff of its decision made
on 13th, 19th and 20th April 1995. However in my finding
the letter went beyond just a letter of advice to become also a letter of offer making
appointment subject to the Plaintiff indicating his acceptance in writing. See paragraph 7
of the letter.
The Plaintiff did not indicate his acceptance by writing as was
required. Instead he merely place the word "accepted" on the bottom
right-hand corner and signed his signature. That was his purported acceptance dated 15th
May, 1995.
It was after the Plaintiff’s acceptance of the offer therefore
that the Public Service Commission should have done a proper
letter headed "Letter
of Appointment" and specifying the other terms and conditions of service as
alluded to in paragraph 4 of Mr Lesines’ letter of 10th May 1995. But the
Court is not satisfied on the evidence before if that this was ever done.
I have emphasized the words "approved your appointment"
by underlining in paragraph 1 of the letter of 10th May, 1995. The term "approved"
indicates that the Commission had agreed to or endorsed appointing the Plaintiff as
Auditor-General. In my considered
opinion to approve an appointment does not mean making
an appointment.
In the Minutes of the 11th Session of the Public Service
Commission held on 13th, 19th and 20th April 1995 at
paragraph 3(d) it says –
"PSC approves the appointment of Mr Maurice Michel as
Auditor General, effective from 15th May, 1995.
Management Service Unit – P. S. D." (emphasis added)
Whatever "Management Service Unit" means in the
sentence, Court has no idea but it does not make any sense.
It was from that decision that Mr Lesines adopted the phrase in the
past tense to read "approved your appointment". There is nothing wrong
with making such a decision. It is just that after having made the decision the Public
Service
Commission did not make the actual appointment.
The Public Service Department took it upon itself that it was making
the appointment by letter dated 10th May 1995 but by law and the Constitution
the Public Service Department did not and does not have the power to appoint the
Auditor-General. The law is very clear on who the appointing authority is. Section 2(2) of
the Audit of Public Accounts Act
[CAP. 165] states clearly that the Public Service
Commission is the appointing authority. Article 25(4) of the Constitution
also states very
clearly that it is the Public Service Commission that appoints the Auditor-General, not
the Public Service
Department. The Public Service Commission is a Constitutional
establishment under Article 60 of the Constitution. It alone pursuant
to Article 25(4) and
Section 2(2) of CAP. 165 has the power to appoint the Auditor-General, not the Public
Service Department.
And it bears to state that by law the Public Service Commission must
make its appointment on its own initiative. That to me means that it (PSC) should
not have to have any recommendations from anyone in or outside of the service of the
government.
I have found that the Public Service Commission did not make the
appointment of the Auditor General. But I make one further finding
that the Commission
merely "approved the appointment". This phrase is adopted from
Annex "R" to the affidavit of Mr Calo. This is a Form submitted to the
Commission
by the Public Service Department. It is headed in French "RECRUTEMENT
D’UN AUDITEUR GENERAL", translated into English means "RECRUITMENT
OF AN AUDITOR GENERAL". (emphasis, added)
That Form contains the recommendation of the then Prime Minister Maxime
Carlot Korman which reads in French as follows:-
"Le gouvernement recommande la nomination de Monsieur Michel
Maurice comme Controlleur General de Compte."
It is signed by Mr Korman.
That translated in English means –
"The Government recommends the appointment of Mr Michel Maurice
as Auditor General."
Below the signatures of Mr Korman as Prime Minister and Minister of
Public Service, and of Mrs Maria Crowby the then Director
of Public Service, the Chairman
of the then Public Service Commission, Mr William Mael signed on 24th April
1995. And below his signature in his own handwriting he wrote this :
"PSC approves the appointment of Mr Maurice Michel as
Auditor General effective from 15th March, 1995." (emphasis added)
I therefore ask myself two questions :
- Did the Public Service Commission appoint the Auditor General, Mr Michel on its own
initiative as required under Article
25(4) of the Constitution?
I answer the question with a "no".
- If the PSC did not appoint Mr Michel, then who did ?
According to the Form referred to above the PSC merely approved the
appointment. The format or layout of the Form is such that
it must be deemed that it was
the Prime Minister who made the appointment. His signature preceded that of the Chairman
of the Commission. In fact it was signed on 4th December, 1994 the date on
which the post of Auditor General was formally advertised. (see annexure "O" of
Mr
Calo’s affidavit).
For the above reasons the Court finds and is satisfied that the First
Defendant did not appoint the Plaintiff, and even if it
did the purported appointment was
illegal and unconstitutional because it was not made on the Commission’s own
initiative
as required by Article 25(4) of the Constitution and Section 2(2) of the Audit
of Public Accounts Act [CAP. 165].
One other reason why the Court finds that the Plaintiff was never
appointed to the post of Auditor General in accordance with
the law and the Constitution
is that there is no letter of appointment from the appropriate authority namely the Public
Service Commission. I have already stated that the letter of 10th May 1995 was
written on Official Letterhead of the Public Service Department. The Plaintiff says that
was his appointment
letter.
If the Court were to accept that argument which it does not, the Court
asks why then did not the Public Service Department issue
the letter of dismissal also ?
Examining the Letter of Dismissal dated 10th May, 1997 which
is Annexure "B" to the affidavit of the Plaintiff, I find contrasts to the
letter of 10th May, 1995.
I set out below the relevant parts of the Memorandum.
"REPUBLIQUE DE VANUATU
(National Emblem)
REPUBLIC OF VANUATU
__________________________ _______________________
COMMISSION DE LA PUBLIC SERVICE
FONCTION PUBLIQUE COMMISSION
__________________________ _______________________
MEMORANDUM
Date: 30TH May 1997.
"CONFIDENTIAL"
TO: Mr Maurice Michel
Auditor General
Auditor General’s Office
PORT VILA.
Dear Sir,
RE: YOUR DISMISSAL AS THE AUDITOR GENERAL
………
………
………
………
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