Ombudsman v Batick; Ombudsman v Jimmy [2001] VUSC 45; Constitutional Case 085 of 1997 (4 May 2001)

	Home \| Databases \| WorldLII \| Search \| Feedback Supreme Court of Vanuatu

ROMAIN BATICK,
of Lamap, Malekula, Taxi Driver and
Edward Tabisari of Port-Vila, Medical Doctor
(both formerly Members of Parliament)
First Defendants

AMOS ANDENG, SAMSON BUE, WILLIAM EDGELL,
IARRIS NAUNUN, ALFRED MASSING, KEASIPAI SONG,
AND BARAK TAME SOPE,
all of Port-Vila, all Members of Parliament

The Estate of JACQUES CARLOT (deceased),
MARIA CROWBY, of PORT-VILA, unemployed

Counsel: Messrs Kalev Crossland & Mary Grace Nari for the Ombudsman
Mr. John Malcolm for the Defendants in Civil Case No. 85 of 1997, the (�First Counsel�)
Mr. Julian Moti for some of the Defendants in Civil Case No. 85 of 1997 and the Defendants in Civil Case No. 104 of 1997, the (�Second Counsel�)

These proceedings are a consolidation of two matters, No. 85 of 1997 and No 104 of 1997.

The plaintiff was the Ombudsman of Vanuatu. The first defendants were members of the Union of Moderate Parties (�UMP�) and Ministers of State during 1987-1991. The second defendants, excluding William Edgell, Charles Godden, Anatole Lingtamat, Jimmy Simon and Barak Tame Sope, were members of the UMP and Members of Parliament during 1987 and 1991. The five second defendants mentioned above were members of the Vanu�aku Pati (�VP�) during 1987 and 1991, and later formed the Melanesian People�s Party (�MPP�). By Writ of Summons filed on 2 July 1997, the plaintiff sought an order giving effect to the recommendations contained in the Public Report on Illegal Ex Gratia Payment to 23 Former MPs pursuant to s.30(3) of the Ombudsman Act No. 14 of 1995. In the particulars of the claim, the plaintiff stated the Ombudsman recommended in that report that, apart from other things, that �the group of 23 [the first and second defendants] return their respective payments of VT1, 500,000 together with interest at the rate of 5% per annum for the period that the money was out of the public revenue;� and that the �first defendants, jointly and individually (severally) are responsible for the return of the total amount of the payment (VT43,000,000) together with interest at the rate of 5% per annum for the period that the money was out of the public revenue.

The plaintiff was the Ombudsman of Vanuatu. The first and second defendants were members of Parliament in the VP led government between 1987 and 28 July 1988. Between 1991 and 1995, the first defendant, Mr Willie Jimmy, was the Finance Minister and the second defendant, Mr Maxime Carlot Korman was the Prime Minister of the UMP led Government. The third defendant, Mr Barak Sope, was a member of the VP government between 1987 and 8 November 1988 and a Member of Parliament in the UMP led government of 1991-1995. By Writ of Summons dated 25 July 1997, the plaintiff sought an order giving effect to the recommendations contained in the Public Report on the Payment of �Compensation� to Hon Maxime Carlot Korman, Hon Willie Jimmy, Hon Barak Sope in Breach of the Leadership Code and Compensation Act 1994 pursuant to s.30(3) of the Ombudsman Act No 14 of 1995. In the particulars of the claim, the plaintiff stated that in that report, the Ombudsman recommended, apart from other things, that the defendants return their respective payments of VT5,000,000 to the Republic of Vanuatu together with interest at the rate of 5% per annum for the period that the money was out of the public revenue.

Between June 1996 and June 1997, the Ombudsman conducted an enquiry into Decision 144 made by the Council of Ministers which approved payments amounting to VT34,000,000 to the defendants by the government. The payments were for political injustice in 1988, when the defendants�, as MPs, offices were declared vacant, or affected politically in 1988. On 4 June 1997, the Ombudsman issued a report called the Public Report on Illegal Ex Gratia Payment to 23 1988 Former MPs (�Ex Gratia Report�). The matters in the report alleged breaches of Article 5(1)(k) of the Constitution and Chapter 10 (Leadership Code) of the Constitution. In the report, the Ombudsman recommended, apart from other things, that the defendants return their respective payments together with interest at the rate of 5% per annum for the period that the money was out of the public revenue and that the first defendants were jointly and individually responsible for the return of the total amount with interest. However, despite written requests in June 1997, the first and second defendants have not returned the money.

On 7 August 1997, a consent order removed four of the first defendants. They were Mr Amos Bangabiti, Mr Charley Nako, Mr Romain Batick and Dr Edward Tambisari. On 26 August 1997, by consent order, actions No 85 of 1997 and 104 of 1997 were consolidated. On 24 February 1998, by consent order Mr Amos Bangabiti and Mr Charley Nako were reinstated as first defendants. On 2 August 1997, a summons was presented by counsel (�first counsel�) on behalf of all of the first defendants and all of the second defendants except Edgell, Sope, Carlot (dcd) Godden, Lingtamat and Simon to apply for the setting aside of the proceedings. The grounds were that the Ombudsman Act No 14 of 1995 had been enacted by Parliament in contravention of the Constitution and is therefore unconstitutional and invalid, or alternatively that the plaintiff�s application is premature and made in breach of the requirements of s. 30(2) of the Ombudsman Act No 14 of 1995 and the conditions attaching to the recommendations in the Public Report on Illegal Ex Gratia payments to 23 1988 former MPs.

On 4 August 1997, counsel for Simon, Sope, Edgell, Godden and Lingtamat (�second counsel�) applied for a motion that the statement of claim be struck out, a declaration that the Ombudsman Act 14 of 1995 was unconstitutional and invalid, a declaration that s.30 of the Ombudsman Act was unconstitutional and that the applicants should be dismissed from the matter. The grounds given were that:

On 4 March 1998, counsel for Mr Barak Tame Sope (�second counsel�) applied for an identical motion to that dated 4 August 1997, that the statement of claim be struck out, a declaration that the Ombudsman Act No. 14 of 1995 was unconstitutional and invalid, a declaration that s.30 of the Ombudsman Act was unconstitutional and that the applicant should be dismissed from the matter. The grounds were the same as the grounds stated in the application for motion above.

On 26 May 1998, defendant Maxime Carlot Korman filed an affidavit claiming that he was not in the class of person responsible.

The combined issues raised by the defendants in support of their respective applications, constitute the preliminary points to be determined by the court.

The combined issues raised in support of the defendants� applications to set aside and strike out are:

(d) The Ombudsman Act or certain provisions (section 30) are unconstitutional and therefore invalid;

(e) The writ seeks orders �requiring the court to assume the sovereign powers of Parliament�;

(f) Assuming (a) to (e) fail, the Ombudsman�s application is �premature and/or made in breach of requirements of section 30(2)�.and the conditions attaching to recommendations�..�

The plaintiff submitted that the fundamental legal and constitutional issue of rule of law in Vanuatu arises from Article 39(1) of the Constitution which states:

The plaintiff submitted that in these proceedings, the nature of the factual issues is very serious, and these issues were placed before the court through s.30(2) of the Ombudsman Act No 14 of 1995 (�the Act�). The plaintiff further submitted that the overall purpose of s. 30 of the Act is to �resolve the breach of fundamental rights or of the Leadership Code identified by the [Ombudsman�s] report. (s.30(3))�

The plaintiff submitted that the facts as pleaded reveal reasonable causes of action enabling the court to make an order per s. 30(3) of the Act, and any doubt over this should be resolved in a full hearing rather than these interlocutory proceedings, particularly given the factors of:

The plaintiff submitted that striking out procedure is an interlocutory procedure to summarily dispose of a case to prevent useless litigation. The plaintiff submitted that in Vanuatu, common law and Order 27, r 4 provides two bases upon which the court can strike out a matter. These are a failure to disclose a reasonable cause of action and that the case is frivolous or vexatious. The defendants rely on the first basis. The plaintiff provided several authorities in support of her submission that the case should not be struck out. The principles can be summarised as follows:

Second counsel submitted that the court has jurisdiction to strike out the pleadings through its inerrant (presumably counsel means inherent) jurisdiction and cites a text named Principles in Pleading^[2], Order 21 rule 29 and Order 27 rule 4 in support.

Second counsel further submitted that the writs themselves were scandalous. He submitted that it is a principal rule of pleading that the pleading must be one of fact and not law, arguments, reasons or theories. The defendants cited Order 18 r. 17 of the �white book�^[3], and referred to Principal Rules of Pleading^[4] to support his argument. Second counsel submitted that in the writ, the plaintiff has pleaded law, analysis reasons and conclusions. Counsel also submitted that the only evidence is that a report has been done by the Ombudsman and that there is no proof as to its contents, therefore it should not be pleaded.

The plaintiff submitted that Order 21, rule 29, (presumably Order 18 r17 of the �white book� above) relied on by second counsel, has no relevance to a striking out application. The plaintiff submitted that the pleadings are not scandalous, and that a conclusion based on a view of law can be pleaded as a fact. She further submitted that in these two proceedings, the primary allegation to fall into this category is that the payments had, as a matter of fact, no basis in law. The plaintiff further submitted that the analysis section of the pleadings was provided for the court�s assistance and so that the defendants were fully informed of the case they face.

First counsel submitted that the jurisdictional foundation for setting aside applications are Articles 47, 2, 16(4) and 53 of the Constitution, Order 69 of High Court (Civil Procedure) Rules 1964, and the inherent powers of the Supreme Court. He listed as authority, but did not explain the relevance of the cases of Re Pritchard (deceased)^[5], Potin v Wood^[6], Hill v Lutton Corporation ^[7], Finnegan v Cementation Co Ltd ^[8], Paia v CC Abe^[9], Christopher Columbus Abe v Minister of Finance^[10],Dinh Van Than v Willie Jimmy^[11] and an article, �The Inherent Jurisdiction of the Court�^[12] in support.

The plaintiff submitted that Order 69 rule 3 states that if an application is made to set aside for irregularity, the several objections intended to be insisted upon must be stated in the summons or notice of motion. In Petty v Daniel^[13] the court stated that if the several objections are not stated, �the applicant cannot rely on them and court cannot be asked to set aside the order of committal�. The plaintiff further submitted that in the summonses in both cases in these proceedings, the defendants specify two alternative grounds for setting aside, neither of which can be described as a defect for want of form as the court described irregularity in Christopher Columbus Abe v Minister of Finance and another^[14] . The plaintiff submitted that despite this, the defendants attempt to add to these grounds in the setting aside summons by citing authorities, most of which are concerned with application over service and form of proceedings.

The plaintiff further submitted that the identical misapprehension between setting aside and striking out occurred in a case cited by first counsel, that is Christopher Columbus Abe, above. The plaintiff submitted that the setting aside summonses are in reality summonses to strike out under Order 27 rule 4 and/or the inherent jurisdiction of the court to strike out for failure to disclose a reasonable cause of action. The documents make no reference to procedural rules let alone Order 69 and rely on two substantive grounds that address the merits. The plaintiff submitted that even if the defendants could overcome their failure to state objections, they have waived the irregularity point now. The plaintiff relied on Boyle v Sacker^[15]and Fry v Moore ^[16] for support.

The plaintiff submitted that the only relevance of Order 69 for setting aside the summonses in that the summonses constitute a �fresh step�. This is because defendants chose to rely only on the two substantive grounds specified in the notices. Moreover, the defendants took a further fresh step by filing and serving the affidavit of defendant Korman on 26 May 1998 after the filing and service of the plaintiff�s and the second counsel�s submissions. The plaintiff submitted that in the circumstances, Order 69, rules 2 and 3 debar the defendant from raising any objection to the form service or other irregularity. The plaintiff submitted that the case of Than v Jimmy^[17] cited by the defendants do not help the defendants because it turns on unusual circumstances.

The plaintiff submitted that Articles 2, 16(4), 74(1)-(6) and 53(3) are not jurisdictionally relevant to the setting aside summonses. The plaintiff submitted that Article 2 is not the jurisdictional foundation for anything and Article 16(4) is the jurisdictional foundation for a reference by the President to the Supreme Court for an opinion the constitutionality of a Bill and nothing to do with a setting aside application. The plaintiff submitted that by Article 47(1) the judicial function is bequeathed to the judiciary. While this article authorises a court to determine a matter according to substantial justice where there is no rule of law, it is inapplicable because both the Rules of Court and the common law (on inherent jurisdiction) apply to setting aside and striking out applications. The plaintiff submitted that Article 42(2)-(6) deal with the appointment, promotion and removal of judges, and Article 53(3) provides the procedure for an inferior court to refer a question of constitutional interpretation to the Supreme Court, and neither of these Articles are relevant to a setting aside or striking out application.

The plaintiff submitted that Article 53(1) and (2) refer to infringements of the Constitution. The statutory procedure set out in s.218 of Criminal Procedure Code [CAP 136] is to ensure, apart from other things, that the state is a party to a constitutional challenge to legislation. The defendants did not apply for relief under the mandatory procedure for a petition based on Article 53(2) and (3) and therefore the defendants are debarred from applying for relief under this Article. The plaintiff further submitted that the issue of unconstitutionality can be dealt with under other bases, for example the inherent jurisdiction of the court or Order 27, rule 4 of the Rules.

The plaintiff submitted that Article 95(2) of the Constitution is the only constitutional provision directly relevant to a striking out application as it preserves the British laws in force at the time of independence, including the common law inherent jurisdiction to strike out claims that do not disclose a reasonable cause of action.

The plaintiff submitted that the authorities cited by first counsel relating to inherent jurisdiction are all concerned with irregularities or defects in law and are irrelevant to this matter.

Second counsel submitted that ss. 4, 14 and 30 of the Ombudsman Act No 14 of 1995 are ultra vires the Constitution and extend the constitution without complying with the provisions of the Constitution allowing for extension. In effect they are amendments to the Constitution made without any an amending Act.

First counsel submitted that the enactment of the Ombudsman Act no 14 of 1995, and in particular s. 30, confer powers which are additional to those specified in the Constitution contravenes the provisions and the requirements of the Constitution, and therefore is unconstitutional and invalid. He further submitted that there is no specific provision in the Constitution empowering Parliament to legislate to confer additional powers upon the Ombudsman, and that any exercise by Parliament of its legislative powers is subject to the Constitution and must therefore comply with constitutional prescriptions. In support, counsel submitted as authority for the above, but did not explain the relevance of the cases of Jean Paul Virelala v The Ombudsman,^[18] The Bribery Commission v Ranasinghe,^[19] McCawley v The King,^[20] Kariapper v Wijesinha^[21] and Riel v the Queen^[22].

The plaintiff submitted first counsel�s submissions seem to rely on R v McCawley^[23], The Bribery Commission v Ranasinghe, and Kariapper v Wijesinha to support the invalid implied amendment argument. The latter two cases establish the unremarkable principle that it is to the character of the bill and not its form, that give its constitutional character, however those two cases are limited to situations where there was a clear conflict between the constitutional provision and the legislative one.

First counsel submitted that while the object of the Act is to provide for powers, procedures and immunities of the Ombudsman in addition to those provided for in the Constitution, Parliament has attempted to amend the constitutionally-defined powers of the Ombudsman by legislative means. Counsel provided, without explanation, the names of 37 cases to support this submission, however did not point the court to the relevance of these cases.

First counsel submitted that while it is permissible for Parliament to legislate in the manner presented above, the requirements of Chapter 14 of the Constitution (AMENDMENT OF THE CONSTITUTION) dictate that proposed legislation to amend the Constitution must be introduced in accordance with the procedures outline in Chapter 14. Counsel listed, but did not explain, 14 cases to support this argument.

First counsel also submitted that in the absence of any definition in the Constitution of the term �Ombudsman�, its meaning must be confined to the subject matter of Part II of Chapter 9 of the Constitution which does not deviate in any way from the traditionally understood role and functions of the Ombudsman elsewhere. Counsel submitted that in Papua New Guinea, the Constitution specifically allocates certain roles and responsibilities to the Ombudsman Commission. He listed, but did not explain, ATSIC v Commonwealth Ombudsman^[24], Sir Julius Chan v Investigating Authority^[25], Balog v Independent Commission Against Corruption^[26], the Ombudsman v The Attorney General^[27], Constitutional Reference No. 1 of 1978^[28] and a text, Ombudsman and the Public Administration^[29] in support. Counsel pointed to, without explanation, these same references as an analysis of the historical evolution, nature and role of the Ombudsman.

The plaintiff submitted that the Ombudsman role is context specific, and in reality there is no ideal type or universal model. The plaintiff submitted that each country adopts the institution to meet its peculiar needs derived from the country�s specific needs. In support, the plaintiff cited several scholarly texts.^[30]

First counsel submitted that any attempt to salvage the additional powers of the Ombudsman Act by reference to Article 68 of the Constitution must be viewed with suspicion as the powers of enforcement in s. 30 of the Act cannot be read as legislation which translates or gives effect to the principles of Chapter 10. Counsel cited Virelala in support. Counsel further submitted that the constitutionally mandated functions of the Ombudsman confine her role to the investigation of complaints concerning the conduct of persons and bodies prescribed in Article 62(2) of the Constitution as well as the making and of the communication of findings. Counsel submitted that the Ombudsman�s role is essentially investigative and recommendatory and nothing more and listed, without explanation, six cases and an article previously mentioned in support.

First counsel submitted the Virelala can be distinguished on the facts as well as the orders sought and granted, and if not, overruled. Counsel further submitted that in the absence of legislation specifically made by Parliament to give effect to the principles of Chapter 10, that is to impose sanctions for the breach of Article 66, the Ombudsman�s powers appear vacuous. First counsel also submitted that the additional powers of enforcement given to the Ombudsman erode the constitutional powers of eg: The Public Prosecutor by subjecting the latter to the direction and control of the Ombudsman, if he does not comply with any recommendation of the Ombudsman for whatever reason. Counsel pointed to, without explanation, Constitutional Reference No 1 of 1978 above, and Attorney General of Fiji v Director of Public Prosecution ^[31] in support.

The plaintiff submitted that she is not seeking an order to direct the Public Prosecutor in any way. The plaintiff further submitted that the court�s only task is to answer this question by focussing on the facts raised by the pleading that is before the court.

The plaintiff submitted that the Ombudsman Act no. 14 of 1995 is constitutional as found by this court in Virelala and others v Ombudsman^[32]in September 1997. The plaintiff submitted that the test to be applied is whether the legislation is within the �general scope of the affirmative words which give the power, and it violates no express condition or restriction by which that power is limited�. This test is stated in Virelala and The Queen v Burah^[33] The plaintiff submitted that in The President of the Republic of Vanuatu v The Attorney General^[^34] the Chief Justice stated in the context of an Article 16(4) presidential reference that the question was whether the bill offended the Constitution. Laws in Vanuatu are therefore invalid if they are inconsistent with the Constitution and the High Court of Australia in McWaters v Day^[35] explained inconsistency:

(a) arises where there is a direct collision with the consequence that it is impossible to obey both laws;

(b) does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience or which may have different consequences following; and

The plaintiff submitted that the Act falls within Vanuatu�s Parliament�s peace, order and good government power, Article 16 of the Constitution. The Plaintiff further submitted that s.30 does not �directly collide� with any express condition or limit of the Constitution which could result in impossibility to follow some other provision of the Constitution. The plaintiff submitted that the Constitution does not evince an intention to be exhaustive on the subject of either the Ombudsman or the Leadership Code. The plaintiff submitted that the proposition that the Ombudsman�s powers are confined to those appearing in the Constitution is wrong, and it is incorrect to characterise any part of the Constitution as codifying any particular area of the law. This was clarified by this court in Virelala. The plaintiff further submitted that The Public Service Act [CAP 129] confers powers on the Public Service Commission in addition to those conferred by the Constitution as do other Acts. The plaintiff submitted that in Attorney General of Trinidad and Tobago and others v McLeod ^[36], the Privy Council rejected the notion of �entrenchment by infection� as unjustified and also considered the �irrational consequences� that would follow. It would be irrational to the court to hold that any law that touched on any constitutional entity or topic had to be done through an amendment to the Constitution.

The plaintiff submitted that while the Act adds to the powers of the Ombudsman, it adds to the existing body of statute law and not to the Constitution, resulting in some Ombudsman powers which are entrenched in the Constitution, and others which are statute based. The plaintiff further submitted that s.30 of the Act is a unique provision to Ombudsman legislation in the Commonwealth (excluding Papua New Guinea). Therefore the Solomon Islands case of Ombudsman v The Attorney General and others ^[37] is not helpful to the defendants� case as Ombudsman legislation in the Solomon Islands does not have a section that corresponds with s.30 of the Vanuatu Act. Likewise, the Vanuatu case of Michel v the Director of Finance & the Attorney General^[38] is of no assistance as it is not an application made under s. 30(2) of the Act, and contains only a passing obiter reference to the section. The plaintiff further submitted that �amendments to the Constitution as presented in the 37 unexplained authorities submitted by first counsel are all cases where the law in question is stated on its face for form to be some form of amendment to the Constitution. With a couple of explicable exceptions, those authorities examining ordinary legislation do not use this invalid amendment analysis. This second class of authority asks whether there is a conflict between the constitutional provision and the impugned legislative one, and does not treat the law in question as an addition that has not followed the proper enacting machinery for constitutional laws. In Vanuatu, such conflicts are dealt with under s. 9(2) of the Interpretation Act.

The plaintiff submitted that s.30 of the Act gives the Ombudsman standing to apply directly to the court for an order �giving effect to a recommendation� in certain circumstances. What is required is:

(d) the application to be filed by the Ombudsman within 24 months of the recommendation.

The plaintiff submitted that these elements are all pleaded in both of the cases, the subject of these proceedings. The plaintiff further submitted that the recommendations that are referred to are those calling for the return of the payments together with interest to the Republic, and not any other of the recommendations contained in the reports.

Second counsel submitted that the remedy sought by the Ombudsman is injunctive, and that the plaintiff has failed to comply with the normal injunctive requirements in that there was no:

He further submitted that an injunction is an inappropriate means of demanding money, and while it can �be used to freeze a bank account but not to demand its return�. He submitted that the appropriate relief is damages or judgment, after which the claimant can seek its remedies pursuant to the rules. He submitted that the orders sought by the plaintiff amount to a writ of injunction and this is prohibited by Order 53 r.12.

The plaintiff, however, submitted that the relief sought is not injunctive in nature as submitted by counsel. The plaintiff applied for an order under s. 30(2) of the Act to give effect to an unfollowed recommendation, a discretionary power given to the court by s. 30(2) of the Act. The plaintiff submitted that there are no provisions in s. 30(2) requiring the giving of undertakings and that the nature of a court order requiring the return of money, the payment of which has no basis in law, is a restitutionary remedy. The plaintiff further submitted that restitution means �restoring or returning something to its proper owner� and proceeded to discuss the principles of restitution, relying on Moses v MacFerland, Fibrosa Spolka Akcyjina v Fairbarin Lawson Combe Barbour Ltd and Lipkin Gorman v Karpnale in support. The plaintiff submitted the scholars have recognised four criteria for analysis of a restitutionary claim, citing several articles and cases in support. These four criteria are:

(c) If so, was the enrichment actionably �unjust� (that is, is there some identifiable and principled basis upon which it can be said that the continued retention of the Benefit by the defendant is unjust)? and

(d) Is there any defence or other countervailing factor requiring restitution nonetheless to be denied in whole or in part?

The plaintiff submitted that with the exception of some of the first defendants in case no. 85 of 1997, all the defendants were enriched personally at the expense of the Republic. This satisfies the first two criteria, even though the enrichment was not at the personal expense of the Ombudsman. The plaintiff submitted that the Ombudsman is bringing a representative action to cure constitutional breaches that have arisen from the defendants� failure to return property that the Ombudsman has found belongs to the Republic.

The plaintiff submitted that the courts have recognised that unjust factors include ultra vires demands by public authorities, and that the ex-gratia payments were ultra vires the Executive�s powers conferred in Article 39(1) and the compensation payments were unlawful because the requirements of section 3(1)(e) of the Compensation Act were not met. Therefore, the third factor of unjust has been fulfilled. The plaintiff submitted that the fourth factor comes into play �where an innocent defendant�s position is so changed that he will suffer an injustice if called upon to repay or repay in full, the injustice requiring him to repay outweighs the injustice of denying the plaintiff restitution�. (Lipkin Gorman v Karpnale Limited)^[39] The plaintiff further submitted that this may be relevant if the court proceeds to hear the substantive matter.

The plaintiff further submitted that if the relief sought for the two recommendations that the plaintiff has chosen for enforcement via s. 30 of the Act is problematic, the court is fully able to give some other order. This is catered for in prayer for relief in each proceeding, that is any other order that the court thinks fit.

Second counsel submitted that if the plaintiff actually intended to seek judgment as a relief and seeks to amend the writ, she is an improper party to the proceedings. Counsel cited Ombudsman v the Attorney General and others and Michel v The Director of Finance and The Attorney General^[40] in support. He further submitted that if the plaintiff is not seeking judgment, then she has issued proceedings against the wrong party and her remedy is to proceed against the Attorney General or Public Prosecutor or whichever person is the responsible person in this matter. Counsel submitted that �either the wrong person has proceeded against the defendants, or the right person has proceeded against the wrong defendants� and either position, which cannot be amended, is fatal to the writ and cited Principals in Pleading^[41] in support.

Second counsel further submitted that the plaintiff is seeking a sum of money in her own name, and even if it is proved, the money is due to someone else and not her. Counsel further submitted that five of the second defendants do not owe the plaintiff any money, neither by contract nor tort. Counsel submitted that the plaintiff has no standing to make a claim.

First counsel submitted that the plaintiff does not have the capacity to pursue legal action whether resititutionary or otherwise for and behalf of the government, nor can she be subrogated to the rights of the government as plaintiff. Counsel cited the the Ombudsman v The Attorney General above, and Michel in support, however did not explain the citations.

First counsel submitted, that in the alternative, the plaintiff�s application to the court for orders to give effect to her recommendations are premature in that she has not complied with nor allowed any of the responsible persons to comply with the time limits prescribed by both reports, and made in breach of the requirements of s. 30(3) of the Act. Counsel submitted that there is no evidence showing that the responsible persons have fulfilled any of the criteria enumerated in s.30(2)(a)(i) � (iii) or even that the defendants are responsible persons within the proper meaning of that expression. Counsel listed Regina v Brown in support however did not explain its relevance.

First counsel submitted that the plaintiff�s applications to the court are made in breach of the conditions attaching to both reports which properly acknowledge the Attorney General as the person designated to institute claims on behalf of the government, and further did not give the time or the opportunity to the Attorney General to institute those proceedings.

The plaintiff submitted that she is not seeking to enforce other recommendations in the Ex Gratia Report, only the recommendations that appear in the pleadings. Other unfollowed recommendations have no relevance to the present case.

The plaintiff submitted that joining wrong parties to a claim is not a ground for striking out the claim, neither at common law nor under the Vanuatu�s rules. Order 17, rule 11 states that �No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties ��. The plaintiff further submitted that she is suing as the Ombudsman and not as the individual office holder in person. The relief sought is pursuant to s. 30(3) of the Act, and s. 30(2) of the act expressly gives the Ombudsman standing to make an application for an order to give effect to unfollowed recommendations when certain criteria are met. The plaintiff submitted that these criteria had been met, and that this action has nothing to do with debt collection.

The plaintiff submitted that it is the Ombudsman who is the correct plaintiff and the defendants are the correct defendants as those responsible for handing back moneys to the Republic. The plaintiff further submitted that if there is any doubt at this interlocutory stage of the proceedings, the court can join the Attorney General as plaintiff or defendant to represent the government or the Republic in accordance with Order 17 rule 11 which allows the court to add or remove parties.

The plaintiff submitted that the term �responsible person� is undefined in the Constitution or the Act and that it would be premature for the court to define the term at this interlocutory stage of the proceedings. The better course would be to wait for the trial so that the court has the benefit of hearing evidence about, among other things:

The plaintiff submitted that s.30(4) of the Act provides for the court to hear arguments from the defendants as to why they are not the persons responsible, and to do this all the evidence should be before the court. The plaintiff further submitted that on the facts, the defendants are responsible for returning the money and the thrust of the Ombudsman�s reports are that the defendants were responsible for receiving the funds in manner contrary to law and in breach of the Leadership Code.

The plaintiff submitted that bearing in mind the rule in Williams & Humbert v W & H Trade Marks (Jersey) Ltd mentioned above, the plaintiff is able to make some observations on the meaning of �responsible person�. The �responsible person� would include the person to whom the Ombudsman reports with recommendations under s.23(1) of the Act in the case of a Leadership Code breach. Thus the Ombudsman reports to the President and the Prime Minister in the case of government MPs or the President or the Leader of the Opposition in the case of opposition MPs. After the Ombudsman has reported to these people, there is a constitutional and statutory responsibility on these people to make a decision. This is provided for in Article 63(4) of the Constitution and s.25(2) of the Act. The plaintiff submitted that the term �responsible person� is not limited to the above framework and pointed out that in this case, the Prime Minister or President cannot decide that the payments made to the defendants be returned as they have no power of compulsion over the recipients of the money. The plaintiff further submitted that this matter is further exacerbated as one of the recipients of the ex gratia payments, defendant Vohor, was Prime Minister at the time the Ombudsman�s recommendation was made and the defendant Korman, a recipient of both the compensation payment and the ex gratia payment was Prime Minister at the time of payment.

The plaintiff submitted that �responsible person� is not tied exclusively to ss. 23 or 24 of the Act. S.16(4)c provides for a wider group. It refers to �any service, body, authority, person or leader� against whom an adverse finding has been made. In the present cases, the defendants were leaders and persons, and therefore to limit the effect of �responsible� would defeat the purpose of s.30 of the Act, and the Act itself.

The plaintiff submitted that the purposes of the Leadership Code and the Act are, among other things, to prevent corruption in �high places� and the crippling effects it has on the economic and social systems of the country. S.30 of the Act is the mechanism for ensuring adherence to the Leadership Code and thus fighting corruption. S.30(2) the court has discretion to make an order actually �requiring the person responsible to � take such other reasonable action as is necessary to resolve the breach of fundamental rights or of the Leadership Code identified by the report.� The plaintiff further submitted that if the court finds that the payments are without basis in law, one option available to the court would be for it to order the return of the money to the Republic, and this cannot be done without requiring the defendants to disgorge the money. They are therefore parties �to whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in a cause or matter �� (Order 17 rule 11).

The plaintiff submitted that while s.30(6) states that the section applies even if a person responsible at the time of the report ceases to be responsible, it is difficult to conceive how a former President or former Prime Minister could be required by the court to force the return of the payments politically or through proceedings against the �offender�.

The plaintiff submitted that s.30 of the Act is poorly drafted, however the court must deal with the section as it appears, and by taking a purposive approach to the interpretation, the court can treat the makers of and the recipients of the moneys as the persons responsible for its return. S.8 of the Interpretation Act [CAP 132] states:

The plaintiff submitted that there are prima facie good reasons for treating the defendants as the persons responsible, however whether they are responsible for the return of the money is a matter of trial. The plaintiff further submitted that if there is a lacuna in the law, Article 47(1) of the Constitution states:

The plaintiff submitted that it would be an illogical result if a Prime Minister could obtain public funds for his or her private benefit, which is without basis in law and the payment of which is thus in breach of Article 66 of the Constitution. The plaintiff further submitted that the Ombudsman is the constitutional officer given the responsibility of policing the Leadership Code and to suggest that she is limited to applying for an order directing the Prime Minister to instruct the Attorney General to issue proceedings against himself or the Attorney General to issue proceedings against the Prime Minister and his ministers is unrealistic. The plaintiff submitted that the court would be in a superior position to consider the term �responsible person� once it has heard the evidence, and the matter cannot be determined at an interlocutory stage, especially in a striking out or setting aside application.

Second counsel submitted that the writ in this matter seeks orders requiring the court to assume the sovereign powers of Parliament. The plaintiff submitted that in Vanuatu the Constitution is supreme, not Parliament, and the Constitution spells out the powers of the various organs of state. The plaintiff submitted that the Ombudsman has applied to the court under s. 30(2) of the Act, and that the court, in exercising its jurisdiction under s. 30(3) cannot usurp functions assigned to the Parliament. The court will only make an order within its jurisdiction. The plaintiff further submitted that it is bold for the defendants to submit to the court that it should strike out a case because of some unspecified fear that the court will do something it has no power to do and this ground does not provide any basis to strike out the statements of claim.

The plaintiff submitted that as Ministers of State, the first defendants are in a relationship akin to trust with the people of Vanuatu. The trust property at stake is national sovereignty which is beneficially vested in the people. Trusteeship is given to the Prime Minister and the Council of Ministers, who hold executive power, which they exercise on behalf of the people, by Article 39(1) of the Constitution. The plaintiff submitted that if this matter goes to a substantial hearing, the plaintiff will submit that the first defendants owed a fiduciary duty to the people not to misuse that grant of executive power.

The plaintiff concluded that both sets of pleadings reveal causes of actions and that there are relevant principles that can be used b y the court to make an order under section 30(3) of the Act.

I now turn to the preliminary issues as raised and I will deal with each of them in turn.

In these consolidated proceedings, one set of defendants is asking the court to set aside the matter and another set of defendants is asking the court to strike out the statement of claim. While the wording of the first summons states that the writ of summons and all subsequent proceedings be set aside, it appears from the submissions that what really is being asked for is that the writ of summons be struck out. The defendants are not grounding their application on procedural defects arising from non-compliance with the Rules of Court, which are the appropriate grounds for a setting aside application. The distinction between a setting aside application and a striking out application is explained very clearly by Muria CJ in Christopher Columbus Abe v Minister of Finance and Attorney General. I am surprised that while Mr Moti cited this case in his authorities, and indicated that this case provides a good summary of the law on striking out in a document called �Summaries of authorities cited and provided by Motis�, he has totally ignored it in getting his application together. Despite the irregularities in the application filed by Mr Moti, it is in the court�s discretion whether to void the proceedings, and I will deal with the application as if it is an application to strike out the originating summons.

The power of the court to strike out pleadings is discretionary both under the Rules and its inherent jurisdiction. Order 27 rule 4 of the High Court (Civil Procedure) Rules 1964 states:

(4) the Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in the case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.

Counsel for the plaintiff pointed out quite rightly that striking out procedure is an interlocutory procedure to summarily disposal of a case to prevent useless litigation, and is not a procedure that the courts take lightly. In this matter, s.30 of the Ombudsman Act No. 14 of 1995 clearly gives the Ombudsman power to apply to the court for an order giving effect to a recommendation. SS. 30(2) and (3) of the Ombudsman Act No. 14 of 1995 state:

(2) The Ombudsman may however apply to the Court for an order that the Court make an order giving effect to a recommendation of the Ombudsman in the event that:

(a) (i) the responsible person has failed to respond to the Ombudsman�s report after being given a reasonable opportunity to do so; or

(ii) the responsible person has responded to the Ombudsman�s report in a manner which fails to resolve the problems identified by the Ombudsman�s report; or

(iii) the responsible person has responded to the Ombudsman�s report but has thereafter failed or refused to carry out the decision communicated in his response after being given a reasonable opportunity to do so

(b) (i) the report reveals (whether this is stated or not) a breach of any of the fundamental rights contained in Article 5(1) of the Constitution; or

(3) The Court may make an order on such application requiring the person responsible to carry out the Ombudsman�s recommendations or the decision of the person responsible or to take such other reasonable action as is necessary to resolve the fundamental rights or of the Leadership Code identified by the report.

In my mind, I understand this to be a simple matter despite the mind numbing 107 authorities presented by counsel, a very large number of which were frustratingly irrelevant to these proceedings. Do the pleadings show a reasonable cause of action? The legislation is clear on its face, and the pleadings are in line with the legislation, therefore a reasonable cause of action is shown. If I am wrong to reach this conclusion and many doubts are cast over, the appropriate approach to take in the circumstances of this case is, to hear the substance of the case in trial particularly given the factors of:

Section 30(2) of the Ombudsman Act No. 14 of 1995 gives the Ombudsman, the standing to apply directly to the Court for an order that the Court makes an order to give effect to a recommendation of the Ombudsman.

In the present case, the Ombudsman says she is not seeking to enforce other recommendations in the Ex Gratia Report, only the recommendations that appear in the pleadings, which is to repay back the money to the Republic. Other unfollowed recommendations have no relevance to the present case.

This transpires clearly from the pleadings. Further, on the face of the pleadings, the Ombudsman is suing as the Ombudsman of the Republic of Vanuatu and not as the individual office holder in person. The relief sought is pursuant to S.30(3) of the Act. The Ombudsman is, therefore, the right plaintiff in accordance with Section 30 of the Act.

The defendants� submissions to the contrary fail and must be rejected to this effect. My answer to the question posed is: NO.

The defence says, in substance, that the Ombudsman has issued proceedings against the wrong parties and the remedy sought is to proceed against the Attorney General or Public Prosecutor or whichever person is the responsible person in this matter because they are not the �persons responsible�. Therefore, it is submitted that this is fatal to the Writ which must be strike out.

�No course or matter shall be defeated by reason of the misjoinder or non-joinder of parties��.

Thus, it is good law to say that joining wrong parties to a claim is not a ground for striking out the claim, neither under the Vanuatu�s rules, nor at Common law.

The relief sought pursuant to S.30(3) of the Act, and S.30(2) of the Act expressly gives the Ombudsman standing to make an application for an order to give effect to unfollowed recommendations when certain criteria are met. These criteria had been met, and that this action has nothing to do with debt collection.

It is the Ombudsman who is the correct plaintiff and the defendants are the correct defendants as those responsible for handing back monies to the Republic. If there is any doubt at this interlocutory stage of the proceedings, the Court can join the Attorney General as plaintiff or defendant to represent the Government or the Republic in accordance with Order 17 rule 11 which allows the Court to add or remove parties.

The term �responsible person� is undefined in the Constitution or the Act and that it would be premature for the Court to define the term at this interlocutory stage of the proceedings. The better course would be to wait for the trial so that the Court has the benefit of hearing evidence about the substantive action.

Section 30(4) of the Act provides for the Court to hear arguments from the defendants as to why they are not the persons responsible, and to do this all the evidence should be before the Court. On the facts, the defendants had received the money.

Bearing in mind the rule in Williams & Humbert v. W & H Trade Marks (Jersey) Ltd mentioned above, some observations on the meaning of �responsible person� can be made. The �responsible person� would include the person to whom the Ombudsman reports with recommendations under S.23(1) of the Act in the case of a Leadership Code breach. Thus the Ombudsman reports to the President and the Prime Minister in the case of government MPs or the President or the Leader of Opposition in the case of opposition MPs. After the Ombudsman has reported to these people, there is a constitutional and statutory responsibility on these people to make a decision. This is provided for in Article 63(4) of the Constitution and S.25(2) of the Act. The term �responsible person� is not limited to the above framework and in this case, the Prime Minister or President cannot decide that the payments made to the defendants be returned as they have no power of compulsion over the recipients of the money. This matter is further exacerbated as one of the recipients of both of the Ex gratia payments, defendant Vohor, was Prime Minister at the time the Ombudsman�s recommendation was made and the defendant Korman, a recipient of both the compensation payment and the ex gratia payment was Prime Minister at the time of payment.

The term �responsible person� is not tied exclusively to ss.23 or 24 of the Act. S.16(4)(c) provides for a wider group. It refers to �any service, body, authority, person or leader� against whom an adverse finding has been made. In the present cases, the defendants were leaders and persons, and therefore to limit the effect of �responsible� would defeat the purpose of s.30 of the Act, and the Act itself.

The purposes of the Leadership Code and the Act are, among other things, to prevent corruption in �high places� and the crippling effects it has on the economic and social systems of the country. S.30 of the Act is the mechanism for ensuring adherence to the Leadership Code and thus fighting corruption. By Section 30(2) the Court has discretion to make an order actually �requiring the person responsible to � take such other reasonable action as is necessary to resolve the breach of fundamental rights or of the Leadership Code identified by the report.� If the court finds that the payments are without basis in law, one option available to the court would be for it to order the return of the money to the Republic, and this cannot be done without requiring the defendants to disgorge the money. They are therefore parties �to whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in a cause or matter �� (Order 17 rule 11).

While s.30(6) states that the section applies even if a person responsible at the time of the report ceases to be responsible, it is difficult to conceive how a former President or former Prime Minister could be required by the court to force the return of the payments politically or through proceedings against the �offender�.

Section 30 of the Act is poorly drafted, however the court must deal with the section as it appears, and by taking a purposive approach to the interpretation, the court can treat the makers of and the recipients of the moneys as the persons responsible for its return. S.8 of the Interpretation Act [CAP 132] states:

There are prima facie good reasons for treating the defendants as the persons responsible, however whether they are responsible for the return of the money is a matter of trial. If there is a lacuna in the law, Article 47(1) of the Constitution states:

It would be an illogical result if a Prime Minister could obtain public funds for his or her private benefit, which is without basis in law and the payment of which is thus in breach of Article 66 of the Constitution. The Ombudsman is the constitutional officer given the responsibility of policing the Leadership Code and to suggest that the Ombudsman is limited to applying for an order directing the Prime Minister to instruct the Attorney General to issue proceedings against himself or the Attorney General to issue proceedings against the Prime Minister and his ministers is unrealistic. The court would be in a superior position to consider the term �responsible person� once it has heard the evidence, and the matter cannot be determined at an interlocutory stage, especially in a striking out or setting aside application. The defendants arguments to the contrary must fail.

D. IS THE OMBUDSMAN ACT No. 14 OF 1995 OR CERTAIN PROVISIONS (SECTION 30) UNCONSTITUTIONAL AND THEREFORE INVALID?

The Ombudsman Act No. 14 of 1995 is constitutional as found by this court in Virelala and others v. Ombudsman in September 1997. The test to be applied is whether the legislation is within the �general scope of the affirmative words which give the power, and it violates no express condition or restriction by which that power is limited�. This test is stated in Virelala and The Queen v Burah. Further in the context of Article 16(4) of the Constitution, the question was whether the bill or a provision of the bill offended the Constitution. Laws in Vanuatu are therefore invalid if they are inconsistent with the Constitution and assistance can be taken of the High Court of Australia decision in McWaters v Day explanation of inconsistency which:

(d) arises where there is a direct collision with the consequence that it is impossible to obey both laws;

(e) does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience or which may have different consequences following; and

(f) requires the paramount legislation to evince an intention to cover the subject to the exclusion of any other law.

The Act falls within Vanuatu�s Parliament�s peace, order and good government power, Article 16 of the Constitution. Section 30 does not �directly collide� with any express condition or limit of the Constitution which could result in impossibility to follow some other provision of the Constitution. The Constitution does not evince an intention to be exhaustive on the subject of either the Ombudsman or the Leadership Code. The proposition that the Ombudsman�s powers are confined to those appearing in the Constitution is wrong, and it is incorrect to characterise any part of the Constitution as codifying any particular area of the law. This was clarified by this court in Virelala. For illustration purpose, the Public Service Act [CAP 129] confers powers on the Public Service Commission in addition to those conferred by the Constitution as do other Acts. As a persuasive authority, the Privy Council, in Attorney General of Trinidad and Tobago and others v McLeod, rejected the notion of �entrenchment by infection� as unjustified and also considered the �irrational consequences� that would follow. It would be irrational to the court to hold that any law that touched on any constitutional entity or topic had to be done through an amendment to the Constitution.

While the Act adds to the powers of the Ombudsman, it adds to the existing body of statute law and not to the Constitution, resulting in some Ombudsman powers which are entrenched in the Constitution, and other powers which are statute based. Section 30 of the Act is a unique provision to Ombudsman legislation in the Commonwealth (excluding Papua New Guinea). Therefore the Solomon Islands case of Ombudsman v The Attorney General and others is not helpful to the defendants� case as Ombudsman legislation in the Solomon Islands does not have a section that corresponds with s.30 of the Vanuatu Act. Likewise, the Vanuatu case of Michel v the Director of Finance & the Attorney General is of no assistance as it is not an application made under s. 30(2) of the Act, and contains only a passing obiter reference to the section. The amendments to the Constitution as presented in the 37 unexplained authorities submitted by first counsel are all cases where the law in question is stated on its face for form to be some form of amendment to the Constitution. With a couple of explicable exceptions, those authorities examining ordinary legislation do not use this invalid amendment analysis. This second class of authority asks whether there is a conflict between the constitutional provision and the impugned legislative one, and does not treat the law in question as an addition that has not followed the proper enacting machinery for constitutional laws. In Vanuatu, such conflicts are dealt with under s. 9(2) of the Interpretation Act.

E. ARE THE ORDERS SOUGHT IN THE WRIT �REQUIRING THE COURT TO ASSUME THE SOVEREIGN POWERS OF PARLIAMENT�?

The Ombudsman is bringing a representative action to cure constitutional breaches that have arisen from the defendants� failure to return property that the Ombudsman has found belongs to the Republic.

Section 30 of the Act gives the Ombudsman standing to apply directly to the court for an order �giving effect to a recommendation� in certain circumstances. What is required is:

(e) the application to be filed by the Ombudsman within 24 months of the recommendation.

These elements are all pleaded in both of the cases, the subject of these proceedings. The recommendations that are referred to are those calling for the return of the payments together with interest to the Republic, and not any other of the recommendations contained in the reports.

The relief sought is not injunctive in nature as submitted by counsel. The plaintiff applied for an order under s. 30(2) of the Act to give effect to an unfollowed recommendation, a discretionary power given to the court by s. 30(2) of the Act. There are no provisions in s. 30(2) requiring the giving of undertakings and that the nature of a court order requiring the return of money, is a restitutionary remedy. Restitution means �restoring or returning something to its proper owner�. Assistance can be obtained in Moses v MacFerland, Fibrosa Spolka Akcyjina v Fairbarin Lawson Combe Barbour Ltd and Lipkin Gorman v Karpnale . The scholars have recognised four criteria for analysis of a restitutionary claim, citing several articles and cases in support. These four criteria are:

(d) Is there any defence or other countervailing factor requiring restitution nonetheless to be denied in whole or in part?

If the relief sought for the two recommendations that the plaintiff has chosen for enforcement via s. 30 of the Act is problematic, the court is fully able to give some other order. This is catered for in prayer for relief in each proceeding, that is any other order that the court thinks fit.

F. WAS THE APPLICATION PREMATURE AND/OR MADE IN BREACH OF SECTION 30(2)� AND THE CONDITIONS ATTACHING TO THE RECOMMENDATIONS?

The Ombudsman�s application was not premature and was not made in breach of Section 30(2) of the Act, or the conditions attaching to the recommendations.

On the basis of the above considerations, the COURT MAKES THE FOLLOWING ORDERS AND DIRECTIONS:

2. THAT leave is granted for the plaintiff to amend the pleadings and to join the Attorney General as a party on behalf of the State Republic (Plaintiff) or the Government (Defendant) to these proceedings.

3. THAT Civil Cases Nos. 85 of 1997 and 104 of 1997 are adjourned to Friday 22 June 2001 at 9.00am o�clock for Conference Direction.

ENDNOTES:

[1] [1996]2LRC 408

[2] Unreferenced text

[3] Unreferenced

[4] Unreferenced

[5] [1963]1AllER 873

[6] [1962]1AllER 294

[7] [1951]2KB 387

[8] [1953]1AllER 1130

[9] High Court of the Solomon Islands, 20 March 1993, Palmer J, (unreported)

[10] High Court of the Solomon Islands, 12 August 1994, Muria CJ, (unreported)

[11] Supreme Court of Vanuatu, 20 August 1997, Lunabek ACJ (unreported)

[12] Jacob, J.I.H, �The Inherent Jurisdiction of the Court�, The Reform of Civil Procedural Law, (London, Sweet & Maxwell) 1982, pp 221-242.

[13] [1888] 34Ch 172

[14] High Court of Solomon Islands, 12 August 19984, Muria CJ (unreported)

[15] [1888] 34Ch 249

[16] [1889] 23QB 395

[17] Supreme Court of Vanuatu, 20 August 1998, Lunabek ACJ (unreported)

[18] Supreme Court of Vanuatu, Civil Case 04/1997, Lunabek ACG, (unreported)

[19] [1964] 2AllER 785

[20] [1920] AC 691

[21] [1968] AC 717

[22] (1885) 10 App Cas 675

[23] [1920] AC 691

[24] (1995) 134ALR 238

[25] [1988PNGLR 43

[26] [1991] LRC (Const) 875

[27] [1987] SILR 75

[28] [1978] PNGLR 345

[29] Ilangasinghe, Ombudsman and the Public Administration, (UPP, Lautoka) 1993

[30] D. Pearce, The Commonwealth Ombudsman: Present Operation and Future Developments; Ayeni, V.O. (Commonwealth Secretariat) Contemporary environment of ombudsman investigative work in Africa: (unpublished); Jamieson R, The Ombudsman: learning from other cultures at p.118 in [proceedings of Fifth International Ombudsmbudsman Conference, Oct 11-Oct 16, 1992 in Vienna. a: Austrian Ombudsmbudsman Board, 1993, pp.116-125;Kimweri MGJ, �The effectiveness of an executive ombudsman� in The Ombudsman: Diversity and Development, (Ed Reif Marshalrshall and Ferris) IOI, University of Alberta, Edmonton 1993:Hatchard J, �Government Accountability, Nationvelopment and the Ombudsman: A Commonwealth Perspective� in The Denning Law Journal, pp53-73.

[31] [1983] 2 AC 672

[32] Supreme Court of Vanuatu, Civil Case 04/1997, Lunabek ACG, Unreported

[33] 3 App Cas 899, 904

[34] [1989-94] 2 VLR 575, 578

[35] [1989] 186 CLR 289, 296

[36] [1985] LRC 81

[37] [1987] SILR 75

[38] Appeal Court of Vanuatu Civil Case 68 of 1997, Lunabek, Robertson & von Doussa JJ, Unreported

[39] [1991] 2 AC 548