Honourable JOE NATUMAN
Minister of Internal Affairs
First Respondent
AND:
Mr. LESLIE GARAE
Principal Immigration Officer
Second Respondent
AND:
Mr. ROY MICKEY JOY
Vanuatu Investment Promotion
Agency
Third Respondent
The Petitioner has brought a
itutional Petition against the Minister of Internal Affairsfairs, the
Principal Immigration
Officer and the Vanuatu Investment Promotion Agency
alleging breaches of Articles 5 (1) b (liberty), d (protection of law),
i
(freedom of movement) and k (equal treatment under the law or administrative
action). He alleges the respondents acted
in contravention of the
Constitution and the Immigration Act and denied him his fundamental rights
under Article 5. He seeks the quashing of a removal order of 19th
December 2001, the restraining of the respondents from acting to remove him
from the country and writs of certiorari
and prohibition. (There is no
paragraph C in the prayer, it was a typographical error to go from B to D).
I have heard the evidence of
the petitioner, Yannick Gueho, on his own behalf, and the evidence of Howard
Aru for the
respondents.
Yannick Gueho came to Vanuatu
in late 1995. He says he is a French Citizen, a Newand passport holder
a and a British
subject. In 1996 he worked for Vanuatu Coconut Products
Limited in Santo. That employment finished late in the year. There
was a
dispute about a truck. On 16th September 1997 Mr. Gueho and a Ni-
Vanuatu business man Mr. Leong Manson (known as Mr. Ahman) incorporated
Vanapex Limited.
The two became directors, Mr. Ahman with approximately 51 %
shares and Mr. Gueho with 49 %. The arrangement was that Mr. Ahman
would
supply the finance and administration, Mr. Gueho would supply all the
production and technical expertise. The company
was to produce soaps and
natural plant products. Mr. Gueho contended the original agreement was for
50 % share holding
each, but this was changed on the official documents by
Mr. Ahman. Mr. Gueho went along with this.
Mr. Gueho told the Court s
many University degrees and great technical know-how concerning the
productiouction of natural
soaps and health products from plants.
On 5th September
1997 an agreement was signed between Mr. Gueho for himself and Mr. Ahman, on
behalf of Vanapex, whereby Vanapex
valued Mr. Gueho�s technical know-how
(�intellectual property�) at Vatu 15 million, and stated its wish to use it.
Mr.
Gueho agreed to that and to work to that end. In return he was given
Vatu 5 Million in benefits (�un nombre d�actions du capital
social�) and a
credit in favour of Mr. Gueho for Vatu 10 million. (see Annex L, Affidavit
of Gueho � 2 January 2002).
Vanapex and that agreement did
not work. Mr. Gueho said Mr. Ahid not pay the business lics licences for the
company after
1998, and did not renew the various licences and certificates
of Mr. Gueho, being a foreign investor, as was their agreement.
I have seen
no documents to say this was the arrangement. That was the evidence of Mr.
Gueho.
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Mr. Gueho also stated there was
a campaign of harassment of him which beith Mr. Ahman and was takentaken up
by others
including officials from the Vanuatu Investment Promotion Agency
and the police. He said Mr. Ahman wished to have him deported
and thereby
take all the benefits of his work and expertise for himself.
Mr. Gueho said he worked hard
and for no money to make the company work. He set up a scheme for farmers to
grow the required
plants for production of Tamanu Oil and Noni. Mr. Gueho
said for the first two years everything was alright. Mr. Ahman paid
the
business licence for 1997 and 1998. His residency permit was valid until
1999. It was in 2000 that Mr. Ahnam made
trouble. Mr. Gueho said before that
he realised there was trouble coming and he decided to register his
intellectual
property to protect it. He then discovered there were no laws
in Vanuatu to do that. He said he was told by Julian Ala, the
then Registrar
of Business Names, that the best thing he could do was to register the
intellectual property as a business
name. This he did as �Island
Botanicals�. Registration took place on 29th October 1998.
Annex F of Mr. Aru�s affidavit
filed on 2nd January 2002 is a letter from Mr. Hakwa, Mr. Ahman�s
lawyer, to Howard Aru as then Acting Chief Executive of the Vanuatu Foreign
Investment Board (VFIB). The VFIB was the forerunner of the VIPA. Mr. Ahman
asserts that he was committed to the business
of Vanapex until he discovered
Mr. Gueho had registered another business, Island Botanicals, and was
trading under that
name, but using the licence granted to Vanapex. There was
no foreign investment certificate for such a business.
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This is not evidence of the
truth of thtents of the letter. However, it is Mr. Ahman�s submission sion
to the third respondent
when the question of licences and certificates
arose.
Mr. Gueho does not assert in
evidence that he told Mr. Ahman what he was doing by registering Island
Botanicals and why.
It is against that background that Mr. Ahman says in the
letter he did not renew Vanapex�s business licence for 1999.
Mr. Aru says that Mr. Gueho
asked for foreign investment approval in a project paper dated 24 March
2000. ( Annexe G,
Aru�s affidavit 2nd January 2002). The subject
was �Island Botanicals� ; the project was for �a Noni agro-industrial
project for general
processing and general extraction of Vanuatu grown
natural products for dietary cosmetic or medical purposes�. Mr. Gueho was
the 100 % shareholder. There was to be a total initial investment of
Vt8,200,000 and a working capital of Vt. 1,000,000.
It stated � the above
project registered on 29th October 1999 has been operating
without a proper business licence. The company has operated under the
umbrella of Vanapex
Limited��
When asked where the money was,
Mr. Gueho oscillated between saying Vt5 million was his shareholding in
Vanapex and the
money was ready to be put up by foreign investors. Apart
from what Mr. Gueho said there was no evidence of the existence of
the
money. There, was no evidence as to whether Mr. Ahman was aware of this,
and, if so, what was the purpose of the
application.
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Nevertheless a foreign investor
approval certificate was granted to Islotanicals, Certificate Numb Number
177 on 4 April
2000 ( Annex A, Aru 2/1/02).
Thereafter Mr. Gueho accepts he
didobtain business licences or residency permits for the businbusiness or
himself respectively.
He persistently asserted �Island Botanicals� was no
more than a trade mark or quasi �trade mark and it was Mr. Ahman�s
obligation to renew the various licences and permits.
Mr. Aru stated in evidence that
concerns arose in 1998 to 1999 when he was informed that Mr. Gueho was
operating a business
without a licence.
In the latter part of that
period products were appearing in slabelled �Island Botanicalsicals�. They
were removed by
customs officer. Mr. Gueho asserted this was all under the
Vanapex approval with his �trade mark�. Mr. Aru said Mr. Gueho was
required
to put the situation in order. The March 2000 project (Annex B) was lodged.
By letter dated 30 August 2000
�Island Botanicals� was asked by the Rates and Taxes Officer in Santo to
ensure it had
a business licence. There was apparently no response and the
matter was referred to Howard Aru. There then followed a series
of letters
and formal notices some marked �Important�, others marked �Urgent�
requesting Mr. Gueho to put the position
in order, or attend a meeting and
explain what was happening. Mr. Gueho accepted he received most of them and
replied.
I have not seen copies of any replies save for exhibit P.8. Mr.
Gueho says they were lost in his computer. Mr. Aru said most
of his
communications met with no response. He made peripheral investigations about
Mr. Gueho�s assertions, for example
with Mr. Ahman and with Myriam Abel (see
fax of 18th November 2000).
Mr. Gueho claimed he did not
have the money to travel from Santo to Port Vila for any of the proposed
meetings or hearings.
He said his pleas for a round-table discussion went
unheeded.
On 18th December
2000 hreign investment certificate, Number 177, was formally revo revoked.
Notice was faxed to him at the usual
number. Mr. Gueho claimed he did not
receive that. The notice informed him that �all relevant residence and work
permits�
were cancelled. Mr. Gueho said he learnt about the notice at the
end of January 2001. He says he saw the revocation certification
much later.
It was put to him �This was served on you by an officer,� he replied �If it
was served later, yes�. The respondents
did not actually produce evidence of
when it was served.
However, it was clear to Mr.
Gueho in early 20at his foreign investor certificate had been removed.
There is no suggestion
by him that the original permission granted when
Vanapex was set up had been renewed, either. It was his obligation under the
Act, and not something he could put off to another, Mr. Ahman. As a
co-director there has been no renewal of the business
licence for Vanapex
since 1999 by Mr. Gueho.
In the meantime Mr. Gueho�s
girlfriend has commenced a business -�Tiare Enterprises�. Mr. Gueho accepts
he gave her instruction,
but it is her business. He produced some of Tiare
Enterprise�s products to the Court, Noni- Nectar, Noni Capsules, Tamanu Oil
and Soaps. All, except the soaps, bear on their labels the words �Island
Botanicals TM� Mr. Gueho states this is not
running a business, it is merely
the use of the trade mark �Island Botanicals� to guarantee the quality of
the product.
He said he did intend to incorporate a company called �Island
Botanicals Ltd�, to this end he made the Foreign Investment application
of
24 March 2000. He says it was an application in his personal name, and not
Island Botanicals.
Mr. Gueho stated his knowledge
and expertise in this field is considerable and he uch, and wishes to
gi give much, to
the plant industry of Vanuatu.
Throughout his evidence he was
disparaging of officials with whom he came in contact. He referred to
o
Mr. Aru as incompetent,
and others as corrupt or dishonest. He was firmly of
the opinion that official and unofficial attitudes had been poisoned against
him and the benefits he can bring to Vanuatu are being lost.
He agreed he received a letter
dated 15 February 2001 from the Principal Immigratificer cancelling his
residency
permit and requiring him to leave the country by 15 March 2001, (
Annexe Q.). He also agreed he received the letter dated 14
August 2001 from
the Minister for Internal Affairs giving him notice that an Order for
Removal would be made in 14 days,
giving reasons for the Notice and inviting
him to make representations in writing. Mr. Gueho said he replied in his
letter
of 20th August 2001. He again reiterated his position and
his many complaints. Mr. Aru says Mr. Gueho did not do this nor take
immediate steps to put a satisfactory explanation to the Minister or apply
to the Supreme Court to challenge the Minister�s
notice.
By a letter dated 12 September
the Public Solicitor, on Mr. Gueho�s behalf, wrote to the Mthe Minister of
Trade and Industry
saying that Mr. Gueho would be suing Mr. Ahman and that
his pending removal was to avoid the consequences of the litigation.
Mr. Gueho stated in evi
that he has not commenced legal proceedings against anyone throughout his
time time in Vanuatu.
On 19thth sup>
December.
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I have assesse evidence of
Mr. Gueho and Mr. Aru. Where there is difference on material matters I
s I
prefer that of
Mr. Aru.
Iot make any findings as
to how capable, knowledgeable and experienced Mr. Gueho is inis in the field of
producing natural
products from plants. He has throughout this saga show an
arrogant disregard of the lawful and official requirements made of
him. He
failed to keep his position lawful concerning Vanapex, his obligations as a
director and foreign investor. He
did nothing more then perpetually
reiterate it was Mr. Ahman�s obligation, even when the law is clear on his
obligations
and in the absence of any document to support his position.
At no time, he agrees, did he
seek legal advoncerning the matters the subject of this petition until
il
very late on.
When he was represented by a lawyer (the unsuccessful appeal
against the Order requiring him to return Vanapex�s truck, Annex
A, Aru�s
affidavit of 13th February 2002), it was on a limited point and
he made the same remarks about his lawyer as he has about others in this
case.
Had Mr. Gueho sought legal
advice in the face of the stream of requests and warnings he received this
matter might not
have reached this point. Several times he was required to
explain his position and did nothing more than reiterate the legal
position
(the trademark Island Botanicals etc) which he asserted but which he has not
shewn to have any basis.
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Mr. Gueho does not claim to be
the owner of any patents, trademarks or intellectual property registered
anywhere else
in the world. He registered a business name and acted on the
fiction it was a trademark. It is not surprising Mr. Ahman refused
to renew
Vanapex business licence when from his point of view Mr. Gueho was in breach
of their know-how agreement and
was operating an apparently rival business.
Island Botanicals is not a
trademark. It is a businame and, whether licensing out the use of its
name tame to Vanapex,
Tiare or whoever, it was as such a business. If there was
some confusion about this before 2001, Mr. Gueho�s project paper
of 24 March
2000 made it clear. The proposed project, money to be invested (wherever it
was) and purchases to be made
were set out. Certificate 177 stated that
�Island Botanicals may carry on business as specified��
The necessary licences and
permits were not obtained despite the aities giving Mr. Gueho ever every
chance. He chose to
reiterate the position he had convinced himself was
correct and made no effort to do more. Even in Court he has produced
products bearing the name �Island Botanicals� over twelve months after his
investors certificate for Island Botanicals
was revoked.
I reassess all the evidence and
particularly of Mr. Gueho to ascertain if this is a case of a
dedi dedicated, perhaps
eccentric, technical person whose expertise in his field
is valuable, yet one who has little understanding or time for official
requirements. I cannot find this. In my judgment, Mr. Gueho has shewn an
arrogant disregard for the legal requirements
of Vanuatu, requirements that
were not particularly onerous and a spurning of the attempts of officials to
accommodate
him.
I have checked though the
evant legislation and provisions. I can find nothing that leads me to
consider any ofny of his
fundamental rights have been breached nor that any
prerogative writ should be issued. I dismiss the petition and refuse leave
to apply for writs of certiorari and prohibition.
This judgment was delivered on
18th February. Mr. Toa, on behalf on the petir asked for an
order rder restraining Mr. Gueho�s removal until the hearing of a proposed
appeal. Mr. Nakou requested an Order of the Court remanding Mr. Gueho in
custody until his removal from the country,
probably on 22nd
February. The matter was adjourned to 19th February for argument.
Mr. Gueho was instructed to arrange for his personal goods to be sent from
Santo to Port Vila
so they were with him in the event his application was
not successful.
On 19th February
argument was heard. Other than any inherent jurisdiction, the Court could
find no power in these proceedings,
nor basis upon which it should order Mr.
Gueho�s detention in custody pending his deportation. Indeed, the
Immigration Act contains such a power (section 17 (3)) which is exercisable
by the Minister.
I havsidered carefully the
application for an Order restraining Mr. Gueho�s deportation peon pending the
hearing of a
proposed appeal. There will be a further sitting of the Court
of Appeal in approximately two months time. The exercise of a
right of
appeal is not a stay of an Order, or the reopening of a dismissed case. Any
appeal can be realistically mounted
and pursued without Mr. Gueho being in
the Country. It will cause difficulties but not ones that cannot be overcome
with
a little effort. I also note that despite the suggestion Mr. Gueho
should arrange for his personal possessions to be sent from
Santo to Port
Vila, he tells the Court he has not done so. Although it is unlikely these
will be recoverable, the respondents
are entitled to their costs on a party
and party basis as agreed or taxed.
Dated at Port Vila 19th
day of February 2002.
R.J. COVENTRY
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Judge