CIVIL CASE No. 68 OF 1997
BETW>BETWEEN:
MAURICE MICHEL
Applicant
AND:
DIRECTOR OF FINANCE
First Respondent
AND:
ATTORNEY GENERAL
Second Respondent
Coram: Mr Justice Oliver A. Saksak
Counsel: Mr Robert Sugden for the Applicant
Mr Jack Kilu for the Respondents
JUDGMENT
The Respondents by way of a Notice of Motion issued under Order 55 of the High Court
(Civil Procedure) Rules 1964 and filed on
20th June 1997 applied to this Court seeking
orders that:-
(a) The Ex-Parte orders issued by this Honourable Court dated 16th June, 1997 be set
aside or dismissed forthwith.
(b) The orders be served on all parties.
(c) The Applicant to pay the Respondent’s costs in relation to this application.
The grounds of the Respondent’s application were:-
1) That the Court had inherent jurisdiction to set aside ex-parte orders where:-
(a) The Court feels that it gave its original leave under a misapprehension and new
matters have been drawn to its attention.
(b) The applicant when applying for an ex-parte order failed to make a full and fair
disclosure to the Court of all the
relevant facts of which he knew.
2) That the granting of the ex-parte order in particular Order 2 ordering specific
performance would unjustly subject the
Respondents to difficult and uncertain litigation.
The Respondents relied on the affidavit of Mr Jack Kilu in which he annexed a copy of
the Ombudsman’s Report dated 6 March
1997. The Report is headed: "PUBLIC
REPORT ON THE APPOINTMENT OF MAURICE MICHEL TO THE PUBLIC SERVICE AND TO THE POSITION OF
AUDITOR GENERAL."
What transpired from the Report is that the Public Service Commission on the finding of
the Ombudsman that Mr Michel’s (the
Applicant) appointment as Auditor General was
void ab initio had written to the Applicant advising him of same and that he was
dismissed. Subsequently the Director General of Finance (First Respondent) acting on that
advice stopped the Applicant’s
salaries from being paid.
The Applicant sought leave ex-parte to apply for mandamus on 16th June 1997. In support
of his application for leave the Applicant
filed an affidavit to which he annexed:-
(a) Letter of Appointment by Public Service of 10th May 1995.
(b) Letter of Dismissal as Auditor General by the Public Service Commission dated 30th
May 1997.
(c) Letter by Hudson & Co to the Public Service Commission dated 4th June 1997.
(d) Letter by the Attorney General to Hudson & Co dated 12th June 1997.
On the hearing of the ex-parte application for leave Mr Kilu appeared for the
Respondents but I ruled that as the application
was made ex-parte it was, according to the
rules of Court not necessary for Mr Kilu to be present.
On hearing Mr Sugden for the Applicant on 16th May, 1997, I made the following orders:-
(1) That the Applicant be given leave to apply to the Court for an order of Mandamus
requiring the Respondents to pay his
salary entitlements as Auditor General for mid-June,
1997 and thereafter.
(2) That until further order of the Court the Respondents pay the Applicant’s
salary entitlement of mid-June, 1997 and
thereafter.
(3) That the costs of and incidental to the application for an order of Mandamus.
The Respondents have applied to have these orders set aside or dismissed. I heard the
application and submissions for two days
from 26th to 27th June, 1997. At the end of
Counsel’s submissions on 27th June I delivered a verbal judgment in the following
terms:-
I have listened to both Counsels in this matter for 2 days (2 separate occasions)
coming to its conclusion today. The conclusion
that I have arrived at is that in my view
the Reports of the Ombudsman was relevant to have been brought to the attention of
the
Court during the ex-parte application. My reasons for that is that it was relevant to the
Court so that the Court would
have been in a better position to assess whether or not the
applicant at the time had any other course of action or any other
avenue whereby he could
have access to the Court to obtain relief or obtain redress. Because the Report was not
available
to the Court at the time it is my opinion and it is my ruling that it should
have been made available. That it was not made
available to the Court at that time,
therefore the Court was under a misapprehension and therefore it gave the leave and the
order that it did.
I have been referred to several authorities by Mr Kilu and also by Mr Sugden but I
think the most relevant authority that I can
stand on to support my finding is that of Becker
-v- Noel & Ors [1971] 2 All ER, 1248. This was a decision of the C.A. Civil
Division in 1971, 29th March. All the authorities that have been
referred to me have been
earlier authorities and this is a 1971 case which is in support of my finding. In this
case this
is what Lord Denning said:-
"I am quite clear that not only may the Court set aside an order made ex-parte,
but where leave is given ex-parte it is always within the inherent jurisdiction of
the Court to revoke that leave if it feels that it gave its original leave
under a
misapprehension or new matters being drawn to its attention." (Emphasis, mine)
On that basis that application or appeal was dismissed. So that is the support that I
have to arrive at the conclusion that I
have. Leave was given at first instance. Therefore
the question of the Courts inherent jurisdiction cannot be questioned. The
Court had
jurisdiction to revoke what may in its opinion be a misapprehension because new materials
have been brought to
its attention. The Report of the Ombudsman, although was relevant was
not brought to the attention of the Court when application
for leave was sought. But it
has been brought to the attention of the Court in this matter as part of an affidavit of
the
Notice of Motion, the application that is before the Court. Therefore it is a new
material which if it had been brought to the
attention of the Court then it would have
assisted the Court to decide whether or not it should grant the leave sought, and
if it
did not whether there was available avenue whereby the Plaintiff/Applicant would resort to
for redress.
The other decision which is closer to home is reported in the Vanuatu Law Report is the
decision of the Supreme Court in Civil
Case No. 107 of 1992 between Peter K. Taurakoto
-v- Hon. Romain Batick and Ors.
That was a case whereby administrative law was concerned and involved Constitutional
Law and employment law. In that case the
Court had to be concerned with the applicability
of prerogative Writs to public servants. I do not wish to go into the case
in detail but
in that case the learned Chief Justice reached a conclusion that prerogative writs was
(were) not available
to public servant(s) who was terminated by the employer because there
was relationship of master and servant. So this Court
will rely on that authority to
support the finding that I have made in the first place.
Secondly the letter of Mr Crossland to Counsel for the Plaintiff in my finding was
irrelevant. It would not be part of the evidence
before this Courts why? Simply because
the Ombudsman is not a party to this proceedings and therefore it was not relevant
(necessary) to be disclosed at the ex-parte application.
In arriving at my conclusion I have had to consider whether the Applicant in this case
has any other course of action to seek
redress. And in my opinion I say that the Applicant
has ample avenue in seeking redress in this Court. The proper cause of action
would have
been to come to this Court with an action for damages. Again the case of Taurakoto would
support that proposition.
The other course would be to proceed by way of a petition and to
seek prerogative writs of certiorari first to quash the decision
of the Public Service
Commission and then seek Orders of Mandamus to command appropriate authorities to take
appropriate
actions concerning the applicant or the plaintiff. I would say that the action
commenced here is not a proper way; is not a
proper course for the Plaintiff/Applicant to
seek the order of Mandamus that he has sought. It is like me wanting to cut down
a tree
from my garden. If I needed to kill that tree, it is not for me to start at the top and
chop off the branches and
just leave the stem to remain standing. If I intended to kill
that tree completely, I had to deal with it by its roots. Therefore
the obvious course of
action for me to take in order to kill the tree would be to start from the roots, start
dealing with
the roots rather than dealing with the branches, because the branches would
grow back again in a matter of time and the problem
would still remain.
In my opinion the action taken by the Applicant/Plaintiff to commence by way of an
ex-parte application seeking mandamus is nothing
but that, starting at the top and leaving
the roots. That does not help. You want to start an action that deals with the roots
and
the root of the problem or the matter in this case is the decision of the Public Service
Commission. That is my opinion
is the roots and that has to be dealt with first. That
should be brought up to the Court and quashed then an order of mandamus
issued.
That’s one way. The other way if using the authority of the Taurakoto case is to just
simply sue the government
being the employer for damages. Those are the alternative causes
of action remaining open to the Plaintiff.
I have looked at some of the cases that have been referred to me and do not wish to go
into details of them except to say that
I would endorse the views and submissions of Mr
Kilu on some of the cases that he has referred the Court to particularly Bloomfeild -v-
Serenji [1945] 2 All ER, 646; Thynne -v- Thynne [1955] 2 All ER, 377 was
referred to me but in any opinion it does not have much bearing in the light of the 1971
decision in Becker -v- Noel.
Having said all that therefore, it is my judgment that the application by the
Respondents must succeed. And the orders that have
been sought by them will be granted by
this Court.
Based on the authority of Becker -v- Noel it is therefore the judgment of this
Court that the leave and order that were granted on an ex-parte application on the 16th
day of June 1997 are revoked.
And the Court makes the following orders:-
1) That leave and order of the Court dated 16th day of June 1997 are revoked.
2) The Plaintiff will pay the costs of the Respondents to be taxed if not agreed.
3) This orders will be served on all parties.
DATED at Port Vila this 27th day of June 1997.
BY THE COURT
OLIVER A. SAKSAK
JUDGE
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