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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATUCIVIL JURISDICTION
CIVIL CASE No. 32 OF 1999
IER">IN THE MATTER:
Of an application for an Order of Certiorari and ProhibitionN THE MATTER:
Of the Municipalities Act [CAP. 126]AND IN THE MATTER:
Of an application by the named Applicant
pursuant to order 61 of the High Court RulesBETWEEN:
KEN HOSEA
of Port Vila, Vanuatu.
ApplicantAND:
The Hon. VINCENT BOULEKONE,
Minister of Internal Affairs,
in the Government of the Republic of Vanuatu.
RespondentCoram: Acting Chief Justice Lunabek J.
Counsel: Mr. Ishmael Kalsakau for the Applicant.
Mr. George Boar for the Respondent.
RER">REASONS FOR JUDGMENT
I. INTRODUCTION
(a) The Motion and the Nature of the Relief.
By Motion of 18 May 1999, filed on the same date, the Applicant applied to this Court by way of Judicial Review for an order of Certiorari and Prohibition requiring that a Declaration dated the 14th of December 1998 made by the Respondent concerning the Applicant in purported exercise of his powers under Section 2, 3, 4, 7, 8 and 10 of the Municipalities Act, [CAP. 126] (as amended) be brought up and quashed upon the grounds set forth herewith and used upon the application for leave to issue the Notice of Motion. The Applicant seeks also for the costs of and occasioned by this Motion.
(b) The partiparties.
The Applicant, Ken Hosea, is an elected member of Port Vila Municipal Council (a councillor) and First Deputy Lord Mayor of Port Vila Townr having being duly electedected in April 1997.
The Respondent is the Honourable Vincent Boulekone, Minister of Internal Affairs in the Government of the Republic of Vanuatu.
p>II. THE ISSUEISSUES
Two questions will be determined by this Court:
(1) The Applicaallenges, in substance, the power of the Minister of Internnternal Affairs to remove the Applicant by order from office as a member of Council and First Deputy Lord Mayor under the Municipalities Act [CAP. 126].
If the answer to question 1 is in the positive ("yes"), the second question to be asked is:
(2) Did the Minister reach His decision on grounds which transgress the fetter or limit which parliament imposes upon him so that there was no positive legal justification for what he did?
III. FACTUAL BACKGROUND
The Applicant’s incumbent status was an elected member of the Port Vila Municipal council and First Deputy Mayor elecy the Port Vila Municipal Councillors in April 1997 fo97 for a period of 4 years.
Prior to his election to Council in 1997, he served in the previous Municipal Council as elected member (councillor) and Deputy Mayor in the entirety of the period of tenure of the former Council.
On the 14th December 1998, by Order published in the Official Gazette No. 32 of 28th December 1998, the Respondent, the Minister of Internal Affairs made a declaration:
(i) That KEN HOSEA has ceased to be a member of the Municipal Council of Port Vila; and
(ii) That KEN HOSEA has ceased to hold any office within the Municipal Council of Port Vila.
This Order came into force on the day of its signature [14th December 1998].
On 12th April 1999, Mr. Kalsakau, on behalf of the Applicant, applied on ex parte Summons for leave to apply for Orders of Certiorari and Prohibition against the decision of the Hon. Minister of Internal Affairs dated 14th December 1998 to be brought up and quashed. The Ex parte Summons for leave was heard inter partes and granted pursuant to Order 61 of the High Court (Civil Procedure) Rules, on the said Declaration of 14th December 1998.
On the next day, 13th April 1999, the Respondent through the Attorney General Office, filed an Ex parte Summons with a Notice of Motion seeking, inter alia, to set aside Order 2 ordering the stay of the proceeding. That application had been refused by this Court on the same date (13/04/99).
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IV. THE EVIDEEVIDENCE
(a) Important preliminary points of Affidavit evidence.
As ter of principle of procedural law, on the subject of procedures in matter of applicatlications for judicial review and certiorari in particular, the substantive hearings were conducted on the basis of Affidavit evidence.
Certiorari and Prohibition proceedings, "afford speedy and effective remedy to a person aggrieved by a clear excess of jurisdiction by an inferior Tribunal (an error of law by an administrative authority…). But they are not designed to raise issues of facts for the High Court to determine de novo".(See R. v. Fulhan etc. Rent Tribunal exp. Derek (1951) 2 KB 1 at 11); R. v. Pugh (Judge) (1951) 2 KB 623).
Where the question of jurisdiction turn solely on a disputed point of law, it is obviously convenient that the Court should determine it there and then. But where the dispute turns on a question of fact, about which there is a conflict of evidence, the Court will generally decline to interfere." [Barry Kalmet & Others –v- The Honourable Demis Lango, Minister for Civil Aviation, Tourism & Others; Civil Case No. 161 of 1996 and cases cited therein].
It is equally vital to understand that, once the Minister has made his decision, it does not matter if there exist other facts that have come to light that might have influenced the decision because the Minister has already made his decision.
What happens after the decision was already made, is not relevant to the proceedings. Further, should it transpire that a behaviour by any of the parties, either after the decision was made or having occurred prior to the attention of the decision-maker, until afterwards, and if any facts of that nature are alleged, by the decision-maker as an answer to the application of judicial review, that flies in the face of such a defence.
In the present case, the Applicant relied on his sworn Affidavit and Annexed Documents in support filed on 12th Apri9 and the Statement Accompacompanying the Application for leave filed on the same date including the annexed documents thereto.
The Respondent/Minister filed no affidavit evidence in his defence to explain the reasons of his decision declaring that the Applicant had ceased to hold any office in the Port Vila Municipal Council in purported exercise of his powers under the Municipalities Act [CAP. 126].
V. THE FACTS FOUND BY THE COURT.
- The Applicant, Ken Hosea, was declared as Councillor by the Electoral Office to the Port a Municipal Council from the Melcoffee/Anambru/Tassiriki Waki Ward during the Port Vila Municipal Council election held on 24th March 1997.
- The Applicant’s election was not disputed and he served as elected member of the Port Vila Municipal Council and Deputy Lord Mayor in the entirety of the period of tenure of the former Port Vila Municipal Council.
- On the 14th December, 1998, by Order published in the official gazette, the Respondent/Minister of Internal Affairs, declared that the Applicant had ceased to hold any office in the Port Vila Municipal Council in purported exercise of his powers under the Municipalities Act [CAP. 126]. (A true copy of the Order is annexed to the Statement Accompanying the Applicant for leave].
- On 27th November, 1998, the then Lord Mayor of Port Vila Municipal Council, wrote to the Respondent/Minister seeking urgent ministerial assistance to stabilise crises currently affecting the Port Vila Municipality and in order to do so, the Minister is "required to issue a Declaration Order under Section 10 (a) to eliminate Councillor Ken Hosea". (See letter of 27 November, 1998, annexed in "B" to the Applicant’s Affidavit).
- On 3rd December, 1992, the Applicant, Ken Hosea, made on application (Application No. 282/92) to the Municipality of Port Vila, for Development. The application was refused on 18th December, 1992. No further application was ever re-submitted before the Municipal Council by the Applicant.
- It was a fact that on 27th October, 1998, the Applicant went into the Municipalities secretariat and discovered that his initial application which had been refused had been approved without his knowledge and was in the file.
- It was found also as a fact that the Applicant, as the Chairman of the Housing Committee, had not been made aware of the approval of his application and he went to see the Assistant Town Planner, Stanley John, and enquired why this had been so where upon the said Assistant Town Planner, took out the application which had been refused and stamped the Municipalities approval dating same on 27th October, 1998 (see Annexure "C" of the Applicant’s Affidavit.). This fact is accepted as such since no affidavit was filed by the Respondent/Minister or on his behalf to dispute it.
- The Affidavit of the Applicant shows also that although this approval purported to be made, his applications and site elevation plan, remained refused (a true copy of which is annexed to the Applicant’s Affidavit and marked "E").
- I accept also as a fact that at the end of the Applicant’s first term in the Municipal Council in 1997, they were informed by the Town Clerk that any outstanding dues to the Municipality would be deducted from their term of gratuity pay-outs. No deduction was made in respect of this alleged debt as it was never a debt in that the applicant’s initial application had been refused.
This fact is confirmed and supported by the fact that on the 17th of March 1997, the Deputy Town Clerk, Mr. Fatani Sope, published and sent a list of Tax defaults against candidates to the Electoral Commission. Nowhere in that list is there any mention of the Applicant’s name nor and his personal debts outstanding before the election to the Municipal Council. (See Annexure "F" to the Applicant’s Affidavit.).
It was also a material fact that in October and November 1998, the Applicant was in the process of democratically leading a motion of no-confidence against the Lord Mayor and the Ministerial Order was directed at ensuring that the Applicant’s efforts would not materialise. (See a letter of advise provided by the Attorney General to the Town Clerk on 26th November 1998, in Annexure "H" to the Applicant’s Affidavit).
However, the letter of the Chairman of Electoral Commission dated 6th January 1999 cannot be accepted and as such is rejected on the basis that it is produced after the Respondent/Minister had already made his decision. That letter, is therefore, irrelevant material. (see Annexure "G" to the Applicant’s Affidavit).
VI. AW
I set out below the relevant legislative provisions:
1. Relevant sion sions of the Municipalities Act. [CAP. 126].
uote>"2. The Ministerby Order –
(a
(a) declare any area to be municipality;
(b) declare a name to a municipality;
(c) define the boundaries of any municipality and alter such boundaries;
(d) declare that any area shall cease to be a municipality.
3. (1) In every municipality there shall be established by the Minister, by Order, a municipal council which shall perform such duties and may exercise such powers as are imposed or conferred on such council by this or any other Act.
(2) Every council shall be a body corporate by the name of the municipal council with perpetual succession and power –
(a) to sue and be sued in its corporate name; and
(b) to purchase, acquire, hold, manage and dispose of movable and immovable property.
4. The Minister may from time to time by Order –
(a) prescribe the composition of a council and the number of councillors;
(b) divide a municipality into territorial wards and vary the boundaries of any such wards;
(c) prescribe the number of councillors to be elected in respect of each ward;
(d) provide for the election of a mayor who shall be chairman of the council;
(e) provide for the election of a deputy mayor or mayors from the councillors;
(f) prescribe the terms and conditions of office of councillors including the mayor and the deputy mayor;
(g) provide for any other matter not herein before specified which may be necessary for the proper establishment of a council.
7. (1) Councillors shall be elected for a period of 4 years and together with any councillor elected at a by-election shall retire together at the end of such period.
(2) Subject to the provisions of the Constitution and this Act the Minister may be Order provide for the regulation and conduct of elections to be held under the provisions of this Act and, without prejudice to the generality of the foregoing, may provide for -
(a) the date for election of councillors provided that if the Electoral Commission fails so to do the election shall take place on a date that is 1 calendar month before the end of the term of office of the councillors presently in office. It the next preceding day that is not one of those days;
(b) the qualifications and disqualifications of electors;
(c) the registrations of electors in any municipality or in any territorial ward of any municipality;
(d) the ascertainment of the qualification of election as councillors;
(e) the method of making disposing of claims or objections in connection with the procedure for the nomination of candidates for election as councillors;
(f) the procedure for the nomination of candidates for election as councillors;
(g) the method of election in any municipality or in any territorial ward of any municipality;
(h) the determination of any question which may arise whether any person has been elected as a councillor;
(i) the nature of corrupt and illegal practices in connection with elections and penalties in relation thereto:
Provided that no penalty prescribed by any order made under this paragraph shall exceed imprisonment for a period of 5 years or a fine of VT100,000 or both;
(j) such forms as he may consider necessary to be used in connection with elections.
8. The following persons shall not be qualified for election as a municipal councillor –
(a) the President of the Republic;
(b) judges and magistrates;
(c) members of Parliament;
(d) members of the police force;
(e) members of the National Council of Chiefs;
(f) any member of district council of chiefs, island council of chiefs, and area council of chiefs, who holds the position of chairman, vice-chairman, secretary or treasurer, shall not be qualified for election as a member of a municipal council;
(g) members of the teaching service;
(h) members of local government council;
(i) the legal adviser or auditor of the council or the partner or employee of such legal adviser or auditor;
(j) a person who is in the service of the council;
(k) a person who, being engaged in a profession, is disqualified or suspended from practising such profession;
(l) a person who is in default of payment of any rates, charges or other debts due to the council for a period exceeding 2 months after the same shall have become due;
(m) a person having a contract with the council to provide municipal services.
10. If any councillor –
(a) is found to have been unqualified or disqualified for election to a council;
(b) is by any circumstances arising so placed that if he were not a councillor would cause him to be disqualified from election as such;
(c) resigns from the council;
(d) retires from the council in accordance with any terms and conditions that may be prescribed under the provisions of section 4;
(e) fails to attend 3 consecutive meetings of the council or of any committee of the council of which he is a member, unless he has obtained the prior permission of the council to absent himself throughout such period,
he shall cease to hold office as a councillor."
2. Relevant provisions of the Interpretation Act [CAP. 132].
"S. 8 An Act shall be considered to be remedial and shall receive such fair and liberal construction anon and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.
S. 9 (1) Every Act shall be read and construed subject to the Constitution and where any provision of an Act conflicts with a provision of the Constitution the latter provision shall prevail.
(2) Where a provision in an Act conflicts with a provision in the Constitution the Act shall nevertheless be valid to the extend that it is not in conflict with the Constitution.
S. 21 Where an Act of Parliament confers power on any authority to make any appointment that authority shall also have power (subject to any limitations or qualifications which affect the power of appointment) to remove, suspend, reappoint or reinstate any person appointed in the exercise of the power."
A. SUBMISSIONS FOR THE APPLICANT.
The Applicant submitted in substance that the said Order No. 28 of 1998 declaring the offices of the Applicant vacant purported to be an exercise of power conferrable on the Minister of Municipalities by the Municipalities Act [CAP. 126] pursuant to Sections 2, 3, 4, 7, 8 and 10 of the said Act, and in so acting the Minister has exceeded the powers granted to him by the Act and has acted ultra vires in making the said Declaration Order.
In support of the above submissions, the Applicant submitted further the following:
(1) That no where in the said Section 2 is there a power conferred upon the Minister/Respondent to remove the Applicant from office in the manner in which he did.
(2) That no where in Section 3 is there a power conferrable on the Minister to issue an Order removing the Applicant from office.
(3) (i) that nowhere in Section 4 of the said Municipalities Act [CAP. 126] is there a power conferrable on the Minister to arbitrarily remove the Applicant from office.
(ii) That no Order issued by the Minister at the material time of removal, under Section 4 existed to empower the Respondent to remove the Applicant in the manner in which he did.
(4) That Section 7 of the Act provides that the Minister may by Order provide for the regulations and conduct of elections to be held under the provisions of the Act and that no such Order was in force at the time of the removal, to permit the Minister/Respondent in this action to remove the Applicant from Office in the manner in which he did and such exercise of power was unlawful and ultra vires.
(5) That Section 8 of the said Municipalities Act provides for the disqualification for elections as a Municipal Councillor and is a section that confines itself to the question of eligibility for election and does not give the Minister power to terminate the Applicant and declare the offices of the Applicant vacant. Therefore the Respondent has acted outside his jurisdiction, ultra vires and without legal authority.
(6) Further in relation to Section 8 of the said Act, the Applicant was not at the time of election and to date in default of any of the provisions of Section 8 to warrant his disqualification from the Municipal Council of Port Vila, in that;
(i) he is not a person referred to in subsection (a) to (k) and (m); and
(ii) he is not in default of payment of any rates, charges or other debt due to the Council at all let alone a period exceeding 2 months after the same shall have become due (sub section (1)).
(7) (i) That section 10 of the Municipalities Act [CAP. 126] provides for the vacation of office of a councillor and that the Applicant is not in breach of any of the sub-sections of section 10 to warrant his cessation to hold office;
(ii) That Section 10 does not empower the Minister to act in the manner in which he did.
(8) That the Applicant has been denied the Application of the principles of Natural Justice in the making of the said Order and declaration in that;
(i) The Applicant was not informed prior to the issuance of the Order dated 14th December 1998 that the Respondent intended to remove him from office.
(ii) The Applicant was not afforded an opportunity to answer any allegations against him before the Respondent made the Declaration Order.
(9) That the Respondent has chosen to exercise his purported powers under the Act to remove the Applicant and he has no power or authority under the Act to do so.
It is, therefore, submitted on behalf of the Applicant that the Applicant has locus standi to apply to this Court on the basis that the Order of 14th December 1998, was illegal, irrational and procedurally improper.
The Minister has no express nor implied powers to remove a councillor from office, only the Supreme Court has the power to do so.
The Respondent submits that the declaration made by the Respondent/Minister to issue Ministerial Order is not ultra-vires, that isis not in excess of jurisdirisdiction and it is not irrational.
Counsel for the Respondent explained this as follows:
A letter date 27th November 1998, written by the then Lord Mayor, Hon. Solomon Simon, containing factual bases was placed before the Respondent/Minister. It is contented that the Minister acted to issue the declaration/order concerning the Applicant on the basis of the said letter of 28 November 1998 exhibited in "B" to the Applicant’s Affidavit of 12 April 1999.
It is conceded on behalf of the Respondent/Minister that under Section 2 of the Municipalities Act, there is no clear express power given to the Minister to issue an Order to the effect as it is in this case.
Further, it is also said for the Respondent that Section 3 of the Municipal Act does not give the Respondent/Minister, an express power to issue an order to the like effect as it is here in this case.
Similar concession was made on behalf of the Respondent in respect to Section 4 of the Municipalities Act [CAP. 126].
It is further submitted for the Respondent that under Section 7(2) of the said Act, the Minister has the power to regulate and conduct the elections.
And Section 8 of the Act provides for persons or categories of persons who shall not be qualified for election as a municipal councillor. And one of the persons or categories of persons is:
"a person who is in default of payment of any rates, charges or other debts due to the Council for a period exceeding 2 months after the same shall have become due;".
It is, then, submitted for the Respondent that, it is on the material part under Section 8 (l) as contained in the letter of Lord Mayor of 28 November 1998, that the Minister used his power under Section 7(2); (b) and (h) of the Act.
The Respondent said further that under Section 10 of the Act, if a Councillor is found to be disqualified, he shall be ceased to hold office as the councillor. And the only way in which a councillor can be affected in office is by way of Order by the Minister.
The Respondent submitted that Sections 2, 3, 4, 7, 8 and 10 of the Municipalities Act must be read in the light of Section 8 of the Interpretation Act [CAP. 132] and as such must be read in a liberal manner. It is said, this is an exception to the principle under Section 21 of the Interpretation Act.
It is also contended for the Respondent that the Minister needed only to be satisfied himself that Sections 7, 8 and 10 of the Municipalities Act warranted that if exist a charge or disciplinary action, the principle of Natural Justice will be considered. In this case, it is put, the Minister is satisfied himself that the requirements of Sections 7, 8 and 10 of the said Act [CAP. 126] are complied with.
On this basis, it is argued that the Annexure "D" of the Applicant’s Affidavit show that the Applicant has been notified of the debt. He was given enough time and there was no impropriety in the Minister’s decision.
It is finally submitted for the Respondent that although it is true that the Supreme Court has the power to declare that a Councillor be removed under Sections 7, 8 and 10 of the Municipalities Act [CAP. 126], the Minister by Order can disqualify a member of the Municipal Council.
VIII. APPLICAPLICATION OF LAW TO THE FACTS
Application of the law to the facts.
Applied in this case, I accept the Applicant’s submissions that in declaring the offices of the Applicant vacant, by Order No. 28 of 1998, which purported to be an exercise of power conferrable on the Minister by the Municipalities Act [CAP. 126] pursuant to Sections 2, 3, 4, 7, 8 and 10 of the Act, the Minister, in so acting, has exceeded the powers granted to him by the Act and has acted ultra vires in making the said Declaration Order.
The Minister purported to stand on the basis of Section 2 of the Act to make his declaration dated 14th December, 1998 against the Applicant. Section 2 of the Municipalities Act gives the power to the Minister, by Order, to:
(a) declare any area to be municipality;
(b) give a name to a municipality;
(c) define the boundaries of any municipality and alter such boundaries;
(d) declare that any area shall cease to be a municipality.
There is not a power conferred upon the Respondent/Minister under the said Section 2 of the Act, to remove the Applicant from office in the manner in which he did.
The Minister indeed, purported to use Section 3 of the Municipalities Act to issue the said Ministerial Order of 14 December, 1998 against the Applicant.
Section 3 of the Municipalities Act [CAP. 126] provides that:
3. (1) In every municipality there shall be established by the Minister, by Order, a municipal council which shall perform such duties and may exercise such powers as are imposed or conferred on such council by this or any other Act.
(2) Every council shall be a body corporate by the name of the municipal council with perpetual succession and power –
(a) to sue and be sued in its corporate name; and
(b) to purchase, acquire, hold, manage and dispose of movable and immovable property.
Under Section 3 of this Act [CAP. 126], there is not a power conferrable on the Respondent/Minister to issue an Order removing the Applicant from office.
The Minister equally, relied upon Section 4 of the said Municipalities Act [CAP. 126] to remove the Applicant from office as he did.
Section 4 of the Act provides:
4. The Minister may from time to time by Order –
(a) prescribe the composition of a council and the number of councillors;
(b) divide a municipality into territorial wards and vary the boundaries of any such wards;
(c) prescribe the number of councillors to be elected in respect of each ward;
(d) provide for the election of a mayor who shall be chairman of the council;
(e) provide for the election of a deputy mayor or mayors from among the councillors;
(f) prescribe the terms and conditions of office of councillors including the mayor and the deputy mayor;
(g) provide for any other matter not herein before specified which may be necessary for the proper establishment of a council."
Under Section 4, there is not a power conferred on the Respondent/Minister to remove the Applicant from office as he did.
There is not a material fact showing about the existence of an Order issued by the Minister at the material time of removal, under Section 4, to empower the Respondent/Minister to remove the Applicant in the manner in which he did.
The Respondent/Minister has also, relied upon Section 7(2) of the Act in purporting to remove the Applicant as he did on 14th December, 1998.
Section 7 of the Act provides generally for the terms of office of councillors and elections of councillors. And Section 7(2) provides for the Minister, by Order, to make regulations and conduct of elections, and without prejudice to the generality of the Section 7(2), the Minister may provide for the matters as prescribed in Section 7(2) (a) to (j) of the said Act.
Again, there is no material evidence showing that the Minister had by Order provided for the regulations and conduct of elections to be held under the Act, and no such Order was in force at the time of the removal of the Applicant, to allow the Minister/Respondent in this action to remove the Applicant from office in the manner in which he did and such exercise of power was unlawful and ultra vires.
The Minister purported to rely substantially on Section 8 of the said Act to remove the Applicant.
Section 8 of the Municipalities Act provides for the disqualification for elections as a Municipal Councillor. That Section 8 confines itself to the question of eligibility for election. This Section does not give the Minister power to terminate the Applicant and declare the offices of the Applicant vacant.
Further in relation to Section 8, the Applicant was not at the time of election and to date in default of any of the provisions of Section 8 to warrant his disqualification from the Municipal Council of Port Vila. The only material evidence before this Court indicates that the Applicant:
(i) is not a person referred to in subsection (a) to (k) and (m); and
(ii) is not in default of payment of any rates, charges or other debt due to the council at all.
I reject the Respondent’s submissions that the Respondent/Minister had material fact before him before issuing his declaration of 14th December, 1998. There is no material evidence before this Court in support of this submission.
There are undisputed material evidence on behalf of the Applicant which pointed to the contrary.
Section 8 of the Act, disqualifies a person for election as a municipal council. Section 8 (l) specifically says:
"a person who is in default of payment of any rates, charges or other debts due to the Council for a period exceeding 2 months after the same shall have become due."
Assuming that the Minister has the power under Section 8(l) of the Act, there is a requirement that before the Minister exercises his power a particular state of affairs must exist as a preliminary requirement. This meant that a condition for the exercise of the power was that the Applicant must be a person who is in default of payment of any rates, charges or other debts to the Council for a period exceeding 2 months.
Since the only material evidence before the Court show that the Applicant is not in default of any rates, charges or other debts due to the Council, the declaration made by the Minister on 14th December, 1998, assuming that the Minister has power under Section 8 to remove the Applicant from office as he did, was ultra vires, as the correct state of affairs did not exist as a pre condition to the exercise of the power.
In White and Collins –v- Minister of Health (C. A., 1939) the local authority had certain powers of compulsory purchase in relation to land which did not form part of private parkland. This meant that a condition for the exercise of the power was that the land was of the appropriate type. The Court held that an attempt by the local authority to acquire private parkland was ultra vires.
In Daymond –v- South Western Water Authority (M. L., 1976) water authorities had a power to impose charges on customers, but an attempt to charge persons not connected to mains drainage was held to be ultra vires as the correct state of affairs did not exist as a pre condition to the exercise of the power. [cited from the Nulshells Series on the Constitutional and Administrative law, third ed., Greer Hogan, 1993].
Further, Section 8 of the Act does not give the Respondent/Minister the power to terminate the Applicant and declare the offices of the Applicant vacant. In so acting, the Minister acted outside his jurisdiction and without legal authority.
The Respondent/Minister finally relied on Section 10 of the At to remove the Applicant from office. Section 10 of the Municipalities Act [CAP. 126] provides for the vacation of office of a councillor. The Applicant as councillor, is not in breach of any of the sub-sections of Section 10 to warrant his cessation to hold office. Further Section 10 of the said Act, does not empower the Minister to act in the manner in which he did.
It is clear from the material evidence before this Court that the only purpose to issue a Declaration Order under Section 10 of the Municipalities Act [CAP. 126] as the Respondent/Minister did on 14th December 1998, against the Applicant, is to eliminate the Applicant, Ken Hosea as an elected councillor from the Port Vila Municipal Council.
This is evidenced from the letter written by the then Lord Mayor of the Port Vila Municipal Council dated 27th November, 1998 as exhibited in "B" to the Applicant’s sworn Affidavit of 12th April 1999.
The relevant part of which reads:
"Honourable Vincent Boulekone
Minister of Internal Affairs
Ministry of Internal Affairs
Private Mail Bag 034
Port Vila.27th November, 1998
Dear Honourable Minister,
VACATION OF OFFICE PURSUANT TO SECTION 10 (a) OF THE MUNICIPALITIES ACT [CAP. 126].
To stabilise crises currently affecting the Port Vila Municipality your urgent assistance is required to issue a Declaration Order under Section 10 (a) to eliminate Councillor HOSEA KEN (MPP) an elected Councillor from the Port Vila Municipal Council to cease from holding office as a councillor.
…
Accordingly it is requested that you exercise power vested in you under Section 7 (2) of the Municipalities Act [CAP. 126] to make an order to declare that the seat currently occupied by Councillor Ken Hosea be vacant and that Councillor Ken Hosea cease to hold office with immediate effect pursuant to Section 10(a) of the Municipalities Act [CAP. 126].
Yours faithfully,
Solomon SIMON
Lord Mayor
………"By basing his decision on the request of the then Lord Mayor, the Respondent/Minister took into account an irrelevant consideration: that of eliminating the Applicant as Councillor so as "to stabilise crises currently affecting the Port Vila Municipality" which was caused by the Applicant, Ken Hosea, in the process of a motion of no-confidence lead by the Applicant against the then Lord Mayor.
In this case, the Respondent/Minister used his statutory power of regulating and conducting the Municipal Elections under Section 7 (2) for a different and foreign purpose. This is obviously unlawful. The test applied here is whether the decision is one which no authority properly directed himself/herself on the relevant law and acting reasonably could have reached.
See Associated Provincial Picture Houses Ltd. –v- Wednesbury Corp. (C.A., 1948).
In Padfield –v- Minister of Agriculture and Fisheries (H. L., 1968) the Minister had the power to refer complaints about the operation of the Milk Marketing Board Scheme to a committee. He refused a complaint of substance to the committee. It was subsequently emerged that one reason for his decision was that he had taken into account the fact that publicity about the complaint would be politically damaging for the government at that time. This, the Court said, was an irrelevant consideration which rendered his decision unlawful.
Has the Applicant been denied Natural Justice and/or Principle of Fairness?
The law has been stated by the Court of Appeal of Vanuatu in the case of the Attorney General of the Republic of Vanuatu (Appellant) –v- President Frederick Kalomoana Timakata (Respondent) 2 Van. L.R. 679, 684. The Judges of the Court of Appeal, in that case have said:
"It is therefore not possible to hold that the rules of natural justice require that reasons should be given for an administrative decision and still less possible to hold that there is a fundamental rule of that kind … the requirement that reasons be given for an administrative decision is not a fundamental principle of natural Justice …
Where the rules of natural justice require that a person making a decision should give the person affected an opportunity to be heard before the decision is made the circumstance of the case will often be such that the hearing will be a fair one only if the person affected is told the case made against him…
That is quite a different thing for saying that once a decision has been fairly reached the reasons for the decision must be communicated to the party affected."
In this case, the material evidence show that the Minister had failed to give the Applicant an opportunity of making representations or to comment on the Ministerial order issued against him before the Respondent/Minister actually issue it.
In Schmidt –v- Secretary of State for Home Affairs (1969) 2 Ch. 149 at P. 170, Lord Denning said:
"the Speeches in Ridge –v- Baldwin [1963] UKHL 2; (1964) AC. 40 show that an administrative body, may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say."
In the G.C.H.Q. Case (Council of Civil Service Union –v- Minister for Civil Service) (1985) A. C., must be consequences that affect the applicant,
"(b) by depriving him of some benefit or advantage with either
(i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or …"
[See also: Bream –v- Amalgamated Engineering Chinon (1971) 2 Q.B.D. 175, Dissenting Judgment of Lord Denning; Civil Case No. 161 of 1996, Barry Kalmet, Deputy Chairman of National Tourism Office and Ors. –v- The Hon. Demis Lango, Minister for Civil Aviation, Tourism, Post & Telecommunications & Meteorology, First Respondent & Ors. (Supreme Court Judgment, (unreported)).
DECISION<
I reproduce below the oral decision delivered on 4th day of June 1999.
Upon applying the relevant Section 2, 3, 4, 7, 8 and 10 of the Municipalities Act [CAP. 126] and those of the Interpretation Act [CAP. 132], to the relevant facts in this case, I come to the conclusion that by issuing Order No. 28 of 1998 declaring vacant the offices occupied by the Applicant, as member and Deputy Lord Mayor of the Port Vila Municipal Council, on the purported exercise of power conferrable on the Minister, pursuant to Sections 2, 3, 4, 7, 8 and 10 of the Municipalities Act [CAP. 126], the Minister has exceeded the powers granted to him by the said Act and has acted ultra vires in making the said Declaration by Order and I so rule.
The following Order are, therefore, made:
1. That an Order of Certiorari and an Order of Prohibition requiring that a Declaration dated the 14th December, 1998 made by the Respondent/Minister concerning the Applicant in purported exercise of his powers under Sections 2, 3, 4, 7, 8 and 10 of the Municipalities Act [CAP. 126], (as amended), which was published in the Official Gazette No. 32 of 1998, be brought up and quashed.
2. That the costs of and occasioned by this Motion and the said application be paid by the Respondent.
3. That full written reasons of the Decision with supporting authorities will be published to both parties within a week as from today 4th June 1999.
Dat Port Virt Vila, this 17th day of June 1999.
Vincent LUNABEK
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Acting Chief Justice.
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