IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
 
CIVIL APPEAL CASE No.24 of 2001
 
BETWEEN:
 
TOWN CLERK Port-Vila
Municipality of P.O. Box 99, Port-Vila
Appellant
 
AND:
 
AMBROSIO MELTERES,
Elected Councillor, Port-Vila, Republic of Vanuatu
Respondent
 
Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice Bruce Robertson
Hon. Justice John von Doussa
Hon. Justice Daniel Fatiaki
 
Counsel: Mr. Ishmael Kalsakau for the Appellant
Mr. George Boar for the Respondent
 
Hearing date: 31 October 2001
Judgment Date: 31 October 2001
 
JUDGMENT
 
On 17 October 2001 there was a first meeting of the Councillors who have been elected to the Municipality of Port–Vila in an election held on 24 September 2001.
 
As required there was at the initial meeting a vote for Mayor 7 votes were cast in favour of the Respondent and 7 votes were cast in favour of Mr. P. C. Manarewo. The Town Clerk pursuant to the provisions of Section 19 of the Municipal Council Election Regulation contained in the Municipalities Act [CAP.125] was persuaded that Mr. Manarewo was the older of the two and therefore he was declared to be the Lord Mayor. There is a dispute now as to whether Mr. Melteres or Mr. Manarewo was first born.
 
These proceedings were commenced in the Supreme Court on 22 October and sought a declaration with regard to the situation which had arisen. There have been various proceedings in the Supreme Court including a pleading, an application to strike out, an application for leave to application for leave to ppeal against the refusal to strike out and then eventually the appeal to this Court which is been brought on urgently today.
 
The law in this area is clear. Under Section 34 of the Regulations the validity of any election to the Municipal Council may be questioned before an Election Disputes Committee for that purpose under the Rules and not otherwise. Although we had not picked up the point before the hearing began, we have had our attention drawn to the provisions of Regulation 24 which provides that a dispute with regard to the Election of a Mayor and Deputy Mayors may be challenged in the same manner as any other election matter. Although there is a slight difference in the language we are left with no doubt that the clear import of Parliament is that any matter arising out of a dispute relating an election is to be heard in the first instance by the Election Disputes Committee. That is the body which has the jurisdiction. There is an appeal from that body to the Supreme Court but it is only at that point that the Supreme Court should be involved in the matter.
 
Some questions were raised as to whether there was an Election Disputes Committee in place. We have now for the avoidance of doubt have had made available to us a copy of the instrument of appointment of a Committee of four which was made on 17 October 2001. But even if there were not personnel available that could not have altered the jurisdiction as to where this dispute had to be commenced.
 
Fortunately that matter has to attention within the period of 21 days in which a dispute may be referred to the Election Disputes Committee so there is no danger of anyone being denied their day in Court because there has been a misunderstanding as to the proper starting place.
 
Accordingly there is no issue which should ever have properly been in the Supreme Court. In those circumstance not withstanding the Orders which have been made below we are satisfied that leave should be granted to appeal, the appeal should be allowed and that the entire proceeding is be struck out. These parties if they cannot in and of themselves determine which of these men was first born, will need to immediately file a petition. The Committee will have the straight forward task of determining as a matter of fact which of these two men is first born.
 
There are no other order sought in this matter and the proceedings are accordingly struck out.
 
DATED at PORT-VILA, this 31st DAY of OCTOBER, 2001
 
BY THE COURT
 
V. LUNABEK CJ
J.B. ROBERTSON J
J. von DOUSSA J
D. FATIAKI J