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Hosea v Minister of Internal Affairs [1999] VUSC 14; Civil Case 139 of 1998 (31 March 1999)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

CIVIL CASE No. 139 OF 1998

BETWEEN:

KEN HOSEA
Plaintiff

AND:

THE MINISTER OF INTERNAL AFFAIRS
First Defendan

AND">AND:

SOLOMON SIMON
Second Defendant

Coram: Acting Chief Justice Lunabek J.

Counsel: Mr. Robert Sugden for the Plaintiff.
Mr. George Boar of the State Law Office for the Defendants.

JER">JUDGMENT

This is a Notice of Motion for Judgment by default of pleadings. By Motion for Judgment dated 11th February 1999, the Plaintiff seeks for theowing orders and decladeclarations:

(i) It is declared that the Declaration of the 14th December, 1998 by the Minister of Internal Affairs to the effect that the Plaintiff is no longer a member of the Port Vila Municipal Council is of no legal effect, or in the alternative,

(ii) It is declared that the Declaration of the 14th December, 1998 by the Minister of Internal Affairs to the effect that the Plaintiff is no longer a member of the Port Vila Municipal Council is void ab initio.

(iii) It is declared that the Plaintiff has, at all times since the 14th December, 1998, remained a Councillor of the Port Vila Municipal Council.

(iv) It is ordered that the Defendants, and anyone acting on their behalf, not prevent, directly or indirectly, the Plaintiff from carrying out the functions and enjoying the privileges of his position as Councillor of the Port Vila Municipal Council and of his office of Deputy Lord Mayor.

(v) It is ordered that the Defendants pay the Plaintiff’s costs of this Motion and the action.

A sworn Affidavit of Leiwia Leikarie Dick was filed on 15th February 1999 in support of the Motion. Mrs. Leiwia Dick deposes she delivered the statement of claim to the Attorney General’s Chambers in Annexure "A".

I am informed by the Plaintiff’s Counsel that the Motion for Judgment was issued under Order 29 Rule 8 of the High Court (Civil Procedure) rules of 1964.

Order 29 Rule 8 says:

"In all other actions than those in the preceding Rules of this Order mentioned, and those to which Rule 14 of this Order applies, if the defendant makes default in delivering a defence, the plaintiff may set down the action on motion for judgment, and such judgment shall be given as upon the statement of claim the Court shall consider the plaintiff to be entitled." [my emphasis].

I enquire as to why there is no statement of claim annexed to the said Mrs. Leiwia Dick’s Affidavit in the Court file. I am informed by the Plaintiff’s counsel that no statement of claim was yet filed before the Court and this is so on the basis that it will save Vatu 2.000 costs for his client and there is no requirement in the Rules to do so.

I do not understand the basis of this type of approach adopted by the Plaintiff’s lawyer. Remedies were sought before this Court and for this Court to grant appropriate remedies, they have to be specifically pleaded in the statement of claim which has to be endorsed with the Writ of Summons or filed separately before the Court and of course appropriate court fees have to be paid by the filing party [as provided for under the Courts Act (CAP. 122)]. This is clearly not the case here. The Affidavit of Mrs. Leiwia Leikarie Dick was filed on 15th February 1999, annexed with the Statement of Claim but for some reason known to the Plaintiff’s Counsel himself, no Statement of Claim was filed before the Court.

Rule 8 of Order 29 applies to all other actions save, actions in Rules 1 to 7 and those to which Rule 14 of this Order applies.

Upon hearing Mr. Robert Sugden for the Plaintiff and Mr. George Boar, of the Attorney General’s Chambers for the First and Second Defendants, I am of the view that Order 29 rule 8 of the High Court (Civil Procedure) rules of 1964 is not applicable to this case.

In the present case, the Plaintiff issues proceedings against, inter alia, the Minister of Internal Affairs (the First Respondent) representing the Government of the Republic State (i.e. the Minister of the government (the Crown)).

By Order 29 Rule 14, it is, expressly, stated that:

"In proceedings against the crown no Judgment for the Plaintiff shall be entered in default of pleadings without the leave of the Court, and any application for such leave shall be made by notice of motion or summons served not less than seven days before the return day." [my emphasis].

By perusing the language of Order 29 Rule 14 of the High Court (Civil Procedure) Rules of 1964, I am of the view that the relevant and correct rule to be applied in this case is Order 29 Rule 14.

Irrespective of the nature of the Declarations and/or Prerogative Remedies sought, assuming that Rule 14 of Order 29 of the Rules is the correct rule to be applied in this case, Rule 14 is a mandatory procedural requirement. "shall" is used.

Therefore, in proceedings against the Government of the Republic (the Crown) no judgment for the Plaintiff shall be entered in default of pleading without the leave of the Court, and any application for such leave shall be made by notice of Motion or summons served not less than seven days before the return day. [my Emphasis]

Applied in the present case, no application for leave to enter Judgment for the Plaintiff in default of pleading was ever made. The Plaintiff by Counsel fails to observe the mandatory procedural requirement of Rule 14 of Order 29 of the High court (Civil procedure) Rules of 1964.

It must be understood that, Order 29 Rule 14 provides for special procedural requirements to be complied with by the Plaintiff before he can enter a Judgment in default of pleadings against the Government of the Republic (the Crown). It is, therefore, the duty of the Plaintiff through his lawyer to comply with the requirements of Order 29 rule 14. If there is no compliance by the Plaintiff, then, the non-compliance or the failure by the Plaintiff’s lawyer, as it is the case, here, on his own admission to this Court to that effect, is fatal to the Plaintiff’s application.

In these circumstances, the following orders are, therefore, made:

1. The Declarations and/or orders sought in the Notice of Motion for Judgment dated 11th day of February, 1999, are all refused.

2. The costs of this Motion and the action are awarded to the Defendants and to be paid by the Plaintiff. The costs be taxed failing agreement.

Dated at Port Vila, this 31st day of March, 1999.

Vincent LUNABEK
Acting Chief Justice.

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