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Ron v Minister of Internal Affairs [2001] VUSC 104; Civil Case 037 of 2001 (26 September 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Administrative Law Jurisdiction)

IN THE MATTER OF: An Application for Leave ply for

Orders of Certiorari and Mandamus,

and the provisions of the Police Act [CAP.105] and the Constitution

BETWEEN:

p class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> VICTOR RON

Applicant

AND:

THE MINISTER OF INTERNAL AFFAIRS

First Defendant

AND:

p class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> OLICE SERVICE COMMISSION

Second Respondent

Date of hearing: Monday 24th September, 2001, 8:15 a.m.

Coram: Mr Justice Oliver A. Saksak

Clerk:lerk: Ms Cynthia Thomas

Counsel: Mr Saling N. Stephens for the Applicant

Mr Tom Joe for the First and Second Respondents.

lass="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> RESERVED JUDGEMENT

lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> On an ex parte summons issued under Order 61 of the High Court (Civocedure) Rules 1964 heard inter partes, the Applicant seeksseeks leave of the Court to apply for Orders of Certiorari to quash the decision of the First Respondent made on 5^th January 1999, and for Orders of Mandamus to command the First Respondent to uphold the Applicant�s appeal of 22^nd December 1998. He alleges failures to observe principles of natural justice on the part of both Respondents.

The Application for leave is supported by a statement by the Applicant filed pursuant to Order 61 Rule 2( the High Court Rules. By it the Applicant states that �

(a)  p;&nbbsp; &bsp;&bsp; &nbss;&nbbsp;&&nsp; &nsp; noewitn were cere called by the Responden give evidence against the Applicant;

(b) &nbbsp; &nsp; &nbbp;&nnbp;& &nb than>there ware was a denial to the Applicant to cross-examine any witnesses; classNormayle="inden6.0pt; mareft: 72.0pt; margin-top: 1; mar; margin-bgin-bottomottom: 1">: 1"> (c) &nnsp;&&nsp;;&nspp;&nssp;&nsp; ther no siscoviscovery and inspection of relevant documents by the Respondents;

(dB">(d) &nbbsp;& &nsp; &nsp; &nnbp;&

(e) &nnsp;&&nsp;;&nspp;&nssp;&nsp; the ndenos havs have not provided reasons for their findings.

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In his submissions Mr Joe for the Respondents referred me to Section 63(2) of the Police Act [CAP.105]. This prov concerns appeals to s to the Commissioner to the Commission within 7 days after such decision was made.

In my view this provision is not applicable. Firstly the licant was an Inspector. Secondly he was dissatisfied with with the decision of the Commission, not the Commissioner.

I was also referred to section 70(1) of the Act which read in connection with section 67(1) of the Act. Unfortunately I see no relevancevance of those provisions.

Finally I was referred to Order 61 Rule 3 of the High t Rules 1964 which provides that leave to apply for an Orde Order of Certiorari shall not be granted unless the application for leave is made not later than six (6) months after the date of the proceeding. It is further submitted that the Applicant has not provided sufficiently good reasons or grounds why he has not applied for leave within the six months allowed by the Rules. Mr Joe submits that he who sits on his rights loses those rights.

In his response Mr Stephens submitted that despite the provisions of Order 61 Ru the Applicant had chosen to refer his case to the Omhe Ombudsman to investigate, which is an institution created by law and therefore any delays taken by that Office to complete its investigation is not within the control of the Applicant. That reason should be sufficient.

Those submissions are rejected. The Applicant was perfectly entitled to refer his complaint to the Ombudsman for investigation but that did not give him the justification for not complying with the requirements of Order 61 Rule 3. He wrote to the Ombudsman on 3^rd March 1999. He has not shown in evidence that he did anything else between that date until the date of filing his application for leave being 29^th August 2001. The matter is more than two (2) years old. It is well outside the six (6) months period required under the Rules. The provisions of the Constitution are quite clear. Article 6(1) provides �

�Anyone who considers that any of the rights guaranteed to him by the Constitution has been, is being or is likely to be infringed may, independently of any other possible legal remedy, apply to the Supreme Court to enforce that right.� (emphasis, mine)

Article 53(1) similarly provides �

�Anyone who cers that a provision of the Constitution has been infringed in relation to him mayu>may, without prejudice to any other legal remedy available to him, apply to the Supreme Court for redress.� (emphasis, mine)

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> There appears to me some merits in the submissions by Mr Joe on beof the Respondents that he who sits on his rights loses thos those rights. The Applicant alleges that his request for witnesses to be heard was refused. Undoubtedly the Applicant had always had that right but there is a procedure specified by law to follow. It was not enough to make a verbal request during the proceedings. The Applicant should have indicated to the Commission upon service of the charges that he was going to plead not-guilty and that he was going to appear with his witnesses on the date of hearing. By doing that the Commission would have been aware and put on sufficient notice to also summon their own witnesses to be present also during the proceedings on 17^th December 1988.

The evidence concerning the charges against the Appli is that he was formally charged with five counts on 14^th October, 19 1998. He was summoned to appear before the Commission to answer to those charges on 17^th December, 1998. It appears that the date appearing on the summon is 1^st December, 1998. The Applicant was served with copies of those charges on 8^th November, 1998.

The summon dated 1^st Dec 1998 is in fact a Notice of Hearing issued by the Commissioner in accordance with Ruth Rule 8 of the Police Regulations. It is a standard Notice set out in the Schedule, Part 1. Rule 9 of the Regulations provides for Notice of Hearing to be served on witnesses. This is provided in the Schedule, Part 2. It appears to me that these are Notices to be served on witnesses for the Commissioner of Police who would be required to testify to prove the charges against the Applicant. Then Rule 10 of the Regulation provides for Notice by Senior Officers.

It reads �

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�(1) & If a senior officer cher charged with a disciplinary offence requires the attendance of a witness or witnesses whose written statement has been served on him in accoe wit Ru, he shal shall givl give note notice thereof to the Commissioner not less than 7 days before the proposed date of hearing, otherwise such written statements may be tendered in evidence at the hearing.

(emphasis, mine)

(2) A notice under this rule hall be in the form set out in Part 3 of the Schedule annexed hereto.�

Rule 7 of the Rtion reads �

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�The Commissioner shall cause to be served on the Chairman and every part duet due to appear before the Commission at least 14 days before the hearing a copy of the charge and copies of all written statements relevant to the charge and hearing.�

From the evidence it appears that pplicant was served with copies of the charges laid against him on 8^th > November, 1998. He had seven (7) days to do that. Seven days from 8^th November, 1998 would have been due on 16^th November, 1998. There is no evidence that copies of written statements relevant to the charges were also served on him on that date. None-the-less the Applicant was required by Rule 10 to give notice that he would require attendance of witnesses at the hearing on 17^th December, 1988. There is no evidence showing that the Applicant had complied with the requirements of Rule 10 of the Regulations. The Applicant alleges non-disclosure of written statements relevant to the charges by the Respondents but has produced no evidence showing that he wrote or verbally requested for them. It was reasonably expected of him to do so.

When the Applicant wrote to the Ombudsman on 3^rd March 1999 one of his complaint was that he was booked late and arrived late in Vila for the hearing so that there was no time for him to do anything. That is not an acceptable excuse. The Applicant had had more than ample time to comply with the requirements of Rule 10. He always had the right to have witnesses called but that was subject to him giving notice of his intention in the time provided. When he failed to do that, it is inappropriate to shift the blame and burden on the Commissioner and the Commission.

Orders of Certiorari and Mandamus are reliefs having equitable characters. H seeks to obtain justice by them must themselves seek seek or be required to do justice. The other side of the coin is that he who comes into equity must come with clean hands. In this case, applying the law to the facts as shown by the evidence, this application must fail and I so rule.

Accordingly I dismiss the Application and order the Applicant to pay the Respondents� costs of the hearing.<

DATED at Lugle this 26^th day of September, 2001.

BY THE COURT

OLIVER A.AK

Judge