PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Vanuatu
You are here:  PacLII >> Databases >> Supreme Court of Vanuatu >> 1998 >> [1998] VUSC 9

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Help

Daniel v D'Imécourt [1998] VUSC 9; Civil Case 071 of 1997 (28 April 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

Civil Jurisdiction

Civil Case No. 71 of 1997

BETW>BETWEEN:

GILLES DANIEL
Petitioner

CHARLES VAUDIN D’IMECOURT
First Respondenondent

AND:

GEORGE VASARIS & Co.
Second Respondent

AND:

TELECOM VANUATU LIMITED
Third Respondent

Coram: Justice tice Oliver A. SAKSAK

Counsel: Mr Gilles Daniel, Petitioner in person unrepresented.
Mr Mark Hurley, for the Second ndent speaking also on behalf of Ms Susan Bothmann Bar Barlow, for the First Respondent.
Mr Silas Hakwa, MP. For the Third Respondent.

JUDGMENT GIVING REASONS FOR ORDERS

This Judgment provides the reasons for the Orders of this Honourable Court dated 17th April 1998.

History

The Petitioner filed his petition on 19th June 1997 together with his affidavit in support thereof and an Ex-parte application. The Ex-parte application was heard by His Honour Kalkot Mataskelekele, J. on 10th September 1997. The Court then made the following Orders :-

  1. That the Petitioner be authorised to represent himself.
  2. That the Petitioner be allowed to serve Court documents on Susan Bothmann Barlow as substituted service on behalf of the First Respondent.
  3. That no orders concerning stay of or variation of Orders in Civil Case No81 of 1996 be made.
  4. That pursuant to section 218(3) of the Criminal Procedure Code Act [CAP. 136] in view of the filing date being 19th June, the Petitioner be required to serve the Petition and supporting documents within 7 days.

The Petitioner filed an Amended Petition on 17th September 1997. On 12th November, 1997 the Second Respondent filed an application to dismiss the Constitutional Petition pursuant to section 218(4) of the CPC Act.

On 17th November 1997 Counsel for the Second Respondent filed three affidavits in support of their application to dismiss the petition on the grounds that it is without foundation, vexatious and frivolous.

The Facts

The Petitioner was the Defendant in Civil Case No.81 of 1996. Telecom Vanuatu Ltd, the Third Respondent was the Plaintiff in that suit then being represented by George Vasaris & Co., the Second Respondent herein.

By agreement between the Petitioner and the Third Respondent the Third Respondent agreed to provide telephone services and equipment to the Petitioner in consideration for him paying the charges therefor. Payment was to be made within 10 days of the date of receipt of invoice. The Petitioner was provided with telephone No.27277 and 27477. Between the period from May 1996 to February 1997 the Petitioner was indebted to the Third Respondent for a total sum of VT2.747.909.

The Third Respondent commenced action to recover the debt through a Specially Endorsed Writ of Summons issued under Order 2, R.2, O.3, R.5. of the High Court Rules.

The Petitioner did not file a defence within 14 days nor did he enter an appearance within 14 days. That being so and upon proof of service, the Third Respondent applied for Judgment in Default of Appearance pursuant to Order 13, Rule 3 and obtained Judgment on 17th July, 1996 for the sum of VT2.747.909 plus costs. The Court ordered costs in the sum of VT63.500 by Order dated 17th July 1996.

The Petitioner did not comply with the Orders of the Court. The Third Respondent through its Counsel issued Ex-parte Summons for interlocutory relief on 20th August, 1996 returnable on 5th September, 1996 for Orders that the Petitioner attend Court and be orally examined pursuant to Order 45, R.32.

An Order for Oral examination of the Petitioner was signed and sealed on 5th September, 1996 under the hands of His Honour Vincent Lunabek, J. allocating the 25th day of September, 1996 as the hearing date.

On 25th September, 1996 His Honour Charles Vaudin d’Imecourt, C.J. heard the application and granted the following orders:-

  1. That the Defendant (Petitioner) be and is hereby restrained until further order of this Court from leaving the jurisdiction of this Court and shall not leave the island of Efate.
  2. That the Defendant forthwith deliver to the Court his passport and any other travel documents in his possession.

    3. (2a) This Order revokes any other Order previously made (by) this Court relating to the Defendant’s passport.

  3. That a copy of these orders be served on the Principal Passport Officer appointed pursuant to section 2 of the Passports Act [CAP. 108] and that the Principal Passport Officer and/or any passport control officers under his control be authorised to take possession of the Defendant’s passport for delivery up to the Court.
  4. That the terms of these orders shall be notified by telephone and/or facsimile to the office of the Principal Immigration Officer.
  5. That there be liberty to apply reserved (emphasis added)
  6. That a copy of these Orders, the Ex-parte summons and the Affidavit of Mr Garry Blake, all of today’s date and filed herein be served on the Defendant.
  7. That there be liberty to apply on 24 hours notice (emphasis added)
  8. That costs be reserved.

Under the above circumstances the Petitioner alleges :-

  1. As against the First Respondent inter alia, that he was biased against the Petitioner.
  2. As against the Second Respondent inter alia, that Messrs George Vasaris & Co. had changed advocates without filing the appropriate Notice of Change of Solicitors.
  3. As against the Third Respondent inter alia, that the company had conspired with the First and Second Respondents to bypass the requirements of the Constitution.
  4. As against all the Respondents that they have breached the Petitioner’s Constitutional rights and freedoms as stipulated in Article 5(1) (b), (c), (d), (e), (f), (g), (h), (I), (j), (k) and Article 5(2) (a) and (b) and Article 47(1) of the Constitution.

Article 5 (1) reads :-

"The Republic of Vanuatu recognizes, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of the individual without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex but subject to respect for the rights and freedoms of others and to the legitimate public interest in defence, safety, public order, welfare and health - (emphasis added)

    1. life;
    2. liberty;
    3. security of the person;
    4. protection of the law;
    5. freedom from inhuman treatment and forced labour;
    6. freedom of conscience and worship;
    7. freedom of expression;
    8. freedom of assembly and association;
    9. freedom of movement;
    10. protection for the privacy of the house and other property and from unjust deprivation of property;
    11. equal treatment under the law or administrative action, except that no law shall be inconsistent with this sub-paragraph insofar as it makes provision for the special benefit, welfare protection or advancement of females, children and younger persons, members of under-privileged groups or inhabitants of less developed area.

(2) Protection of the law shall include the following -

  1. everyone charges with an offence shall have a fair hearing, within a reasonable time, by an independent and impartial Court and be afforded a lawyer if it is a serious offence;

(b) ………."

Article 47(1) reads -

"The administration of Justice is vested in the Judiciary, who are subject only to the Constitution and the law. The function of the judiciary is to resolve proceedings according to law. If there is no rule of law applicable to a matter before it, a Court shall determine the matter according to substantial justice and whenever possible in conformity with custom."

On 17th April, 1998 I made Orders dismissing the Petitioner’s Petition with costs against the Petitioner to be taxed if not agreed for reasons following. This is a petition issued under Article 6 and 53 of the Constitution pursuant to section 218 of the Criminal Procedure Code Act [CAP.136] .

Article 6 reads -

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

(2) The Supreme Court may make such orders, issue such Writs and give such directions, including the payments of compensation, as it considers appropriate to enforce the right."

Article 53 reads -

"(1) Anyone who considers that a provision of the Constitution has been infringed in relation to him may, without prejudice to any other legal remedy available to him, apply to the Supreme Court for redress.

(2) The Supreme Court has jurisdiction to determine the matter and to make such order as it considers appropriate to enforce the provisions of the Constitution.

(3) ………"

Section 218 of the Criminal Procedure Code Act reads -

"(1) Every application to the Supreme Court for the exercise of its jurisdiction under Articles 6, 53(1), 53(2), and 54 of the Constitution shall be by petition and shall be valid no matter how informally made.

(2) The Supreme Court may on its own Motion or upon application being made therefor by any party interested in the petition summon the petitioner before it to obtain any further information or documents it may require.

(3) The Petitioner shall, within 7 days of the filing of his petition in the Supreme Court or within such longer period as the Court may on application being made therefor order, cause a copy of the petition together with copies of supporting documents filed in relation to such petition be served on the party or on all those parties whose actions are complained of.

(4) Any party who is served with a copy of the petition in pursuance of subsection (3) may without prejudice to any other legal remedy available to such party apply to the Supreme Court for an Order dismissing the petition on the ground that the petition is without foundation or vexatious or frivolous.

(5) Unless the Supreme Court shall satisfied in the first instance that the petition is without foundation or vexatious or frivolous, it shall set the matter down for hearing and enquire into it. It shall summon the party or parties whose actions are complained of to attend the hearing.

(6) On the day appointed for hearing, the Supreme Court shall enquire into the matters raised by the petition and after hearing all parties concerned shall five its decision and its order or directions (if any) thereon in open court."

The Second Respondent filed an application to dismiss the Petition on 12th November, 1997 on the grounds that the petition is without foundation or vexatious or frivolous. They do so pursuant to section 218(4) of the CPC Act [CAP. 136].

Counsel for the Second Respondent argued and submitted that the Petitioner did not or was and is not entitled to those fundamental rights and freedoms that he claims he has under Article 5 of the Constitution because of the restrictions placed on him as a non-citizen in the Order of the Court dated 25th September 1996. Mr Hurley relied on the opening sentence of Article 5(1) of the Constitution which states -

"The Republic of Vanuatu recognizes, that, subject to any restrictions imposed by law on non-citizens, …" (emphasis added)

It is common knowledge that the Petitioner is a French citizen. It is common knowledge which the Petitioner does not deny, that he owes money in the sum of VT2.747.909 to the Third Respondent. He did not defend the suit against him implying that he has no defence. The Orders made on 25th September, 1995 restricting his rights were made in my view under Article 5(1) and therefore it is clear that as a non-citizen the Petitioner does not have those rights and freedoms. That being so, it follows that his claim are baseless in law. In other words it is without legal foundation.

The Petitioner has therefore not established breaches of his Constitutional rights and freedoms and therefore he cannot seek redness. (See Rialuth Serge Vohor -v- Donald Kalpokas and Others (Civil Case No.29 of 1996).

The Petitioner relies on Article 47(1) of the Constitution also but I see no relevance to that provision where the Petitioner does not have foundation in the first place.

The Petitioner says at paragraph 14 of his Amended Petition that he was not authorised to represent himself. This is a complete lie. The Court gave him that right by choice in its Orders dated 10th September 1997.

The Petitioner filed his Petition on 19th June 1997 and an Amended Petition on 17th September 1997. He did not file any supporting affidavits during the period in-between except one of 19th June 1997 which was in support of an ex-parte application which sought orders -

  1. permitting petitioner to represent himself;
  2. the return of his passport and lifting of the Orders banning him to travel out of Efate; and
  3. for damages.

Just as well the Court has not heard that ex-parte application because the Petitioner has clearly abused the process. He should have proceeded under Civil Case No.81 of 1996 to apply for Orders setting aside the Orders of the Court of 25th September 1997. Alternatively he could have appealed against the Orders but he did not. He cannot now say that he did not have the opportunity. The Orders of 25th September 1997 paragraphs (5) and (7) gave liberty to all parties to apply on 24 hours notice. The Petitioner did not see fit to resort to that opportunity but he saw fit to proceed through an avenue for petition under a new proceedings which clearly is an abuse of process.

Here is a person who claims that his Constitutional rights and freedoms have been denied him but who himself on the other hand has refused and turned a blind eye or deaf ear to the respect for the constitutional rights and freedoms of others. Here it is the Third Respondent’s rights to being paid what is legally and undeniably owed from him by the Petitioner. Article 5(1) of the Constitution makes it quite clear that the exercise of enjoyment of the rights and freedoms stipulated are "subject to respect for the rights and freedoms of others …" (emphasis added).

If the Petitioner expects to come to Court to have equity then it is expected that he himself be seen to have respected equity to those to whom he owes money before he could come before the Court. There are some famous maxims in relation to equity two of which are -

  1. "He who seeks equity must do equity"
  2. "He who comes to equity must come with clean hands."

In Davis -v- Duke of Marlborough (1819) Swan 108 at 157, per Lord Eldon LC, it was enunciated that the Court is not to give relief to those who will not do equity.

This Court applies those principles of equity to this case.

The Petitioner alleges that the Third Respondent had conspired with the First and Second Respondents against him and to breach his constitutional rights. I have already found that the Petitioner has no constitutional rights. I have also already found that the Petitioner has no constitutional rights breached by the Respondents. I find now that the Petitioner has no evidence to support his allegation of conspiracy.

The Petitioner alleges that as a result of the Orders of the Court dated 25th September 1996, he was unable to travel to Malekula where he would have earned VT300.000 per month to allow him to make repayments of the moneys he owes to the Third Respondent. As a result therefore the Petitioner alleges that he lost VT4 million.

The Court has been told by Counsel for the Second Respondent that at the hearing of Ex-parte Summons for Interlocutory Relief in September 1996 at which the Petitioner was present, the Petitioner gave no evidence as to the work or nature of the work that he claims he was to do. Nor has the Petitioner provided any further evidence thereafter. This Court is unable to accept such allegation without evidence to prove it.

On the presumption however that it was true on the other hand the Petitioner would have earned that sort of money he claims he would have earned but has not because of the Court orders of 25th September 1996, he cannot attribute fault to the Respondents for reasons I have already stated above. The Petitioner had all the opportunity to apply back to the Court to have the Orders set aside, or alternatively appeal against the Orders. But he failed to make use of those opportunities. He failed to help himself therefore he cannot blame someone else for that failure. To do so, as he has done, is nothing but an act causing annoyance to the parties in question. Those actions are therefore vexatious and frivolous.

Finally the Court must again state its concern at the way in which Judges of the Courts here are being made parties to legal proceedings. This is a relatively new concept which I would say came about only about a couple of years ago. Judges are Judicial Officers and are protected under the provisions of section 28 of the Courts Act [CAP.122]. This was so held in Civil Case No.155 of 1996: Andre Francois -v- Selb Pacific Ltd and others, per SAKSAK, J at p.4.

Section 28 reads –

"No Judge or Magistrate or other person acting judicially in relation to the administration of Justice shall be liable to be sued in any Court for any Act done or ordered to be done by him in the discharge of his judicial duty whether or not within the limits of his jurisdiction provided that he, at the time in good faith, believed himself to have jurisdiction to do or order the act or other person appointed to execute the lawful warrants or orders of any Judge, Magistrate or other person acting judicially, shall be liable to be sued in any Court for the execution of any warrant or order which he would be bound to execute if within the jurisdiction of the person issue the same."

At p.5 of the Judgment of Civil Case No. 155 of 1996 I said this :-

"Judges cannot and should not and never be sued save in very exceptional circumstances. Only their judicial findings or judgments may be reviewed or appealed against. Doing so would be conflict with the constitutional recognition of judicial independence under the Vanuatu Constitution."

I then cited Civil Case No.2 of 1997: Dinh Van Than -v- Minister of Finance and others in which the Court of Appeal in its judgment of 9th October 1997 said this at page 7 :-

"The citing of a Judge in a Constitutional petition (as well as being in conflict with the constitutional recognition of judicial independence under the Constitution) will mean that Judges will have to request the Attorney General on their behalf to apply to have them struck from the proceedings. If not they will simply abide by the decision of the Court. It is of the very nature of the separation of powers and the fundamental precepts of the doctrine of judicial independence that Judges do not become part of the litigation process or become personally involved in cases before the Court."

This is the second case I have seen in which a Judge of the Court has been joined as a party to legal proceedings in 2 years and the Petitioner would do well to read carefully the previous decisions of the Supreme Court and the Court of Appeal and this as these decisions particularly that of the Court of Appeal are binding on this Court.

This Court needs only satisfy itself that a petition is without foundation without it also being vexatious or frivolous. Only one element is enough to enable the Court to dismiss a petition. Here I am satisfied that the petition has all the elements required in Section 218(4) of the CPC Act present. And for those reasons I accordingly ordered that the Petition be dismissed in its entirety. Further as a result of the above Order and the Petitioner having put the Respondents to much costs, I ordered that he pays all costs of and incidental to the proceedings to all Respondents to be taxed if not agreed.

Published at Port Vila, this 28th day of April 1998.

BY THE COURT

Oliver A. SAKSAK
Judge of the Supreme Court.

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/vu/cases/VUSC/1998/9.html