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Marikembo v Mirou [2004] VUSC 34; Civil Case 215 of 2004 (26 November 2004)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 215 of 2004

BETWEEN:

API JACK MARIKEMBO
Claimant

AND:

NICHOLAS MIROU
First Defendant

AND:

KAYLEEN TAVOA
Second Defendant

AND:

JOHN WILLIAM TIMAKATA
Third Defendant

AND:

WYCLIFF TARILENGA
Fourth Defendant

AND:

ROBERT DE NIRO OBED
Fifth Defendant

Coram: Justice P I Treston

Mr. Boar & Mr. Nakou for the Claimant
Mr. Kalsakau for the Defendants

Date of Hearing: 24 November 2004
Date of Decision: 26 November 2004

JUDGMENT

FACTS

On 28 September 2004, the Prime Minister the Honourable Rialuth Serge Vohor appointed a Commission of Inquiry to inquire into and investigate: -

"(a) The circumstances surrounding the prosecution of the Honourable Rialuth Serge Vohor on the 11th September 2004;

(b) The allegations surrounding the role of the Prosecution's office in prosecuting the Prime Minister; and

(c) Such other matters that the Commission deems necessary."

The time for filing a report of the proceedings and the result of the inquiry was to be 7 October 2004. That was extended to 20 November 2004 and has now been further extended to 15 December 2004.

The Commissioner of the Inquiry is the Claimant and has summoned certain witnesses to give their evidence before the Commission. The five Defendants, however, have refused to attend the Commission hearing after being served with copies of the summonses.

It seems that the First, Second, Third and Fourth Defendants have indicated to the Commission through their lawyer that they do not intend to give evidence because it is their view that the Commission of Inquiry does not have the power to look into the circumstances of a case which has been through Court and that they have protection under Article 55 of the Constitution and in the case of the fifth Defendant, because there is an action involving him in Supreme Court Civil Case No. 180 of 2004 which is still pending in Court.

The Commission did not respond to this correspondence.

APPLICATION

The Claimant applied for urgent orders that the Defendants be ordered to pay VT20, 000 each and to appear before the Commission of Inquiry and testify as per the summonses issued and served on them. The Claimant also sought an order that the Defendants be held in contempt (for failing to comply with) the Commission's summonses and an order for costs.

SUBMISSIONS

The Claimant submitted that the powers of the Commission of Inquiry as set out in the Commission of Inquiry Act [CAP. 84] ("the Act") are very wide and expansive and that the only circumstances in which the Defendants could reasonably challenge the lawful summons served upon them would be if they could show: -

(a) The Act is void for uncertainty.

(b) Legal proceedings are pending regarding facts, which the Commission is required to inquire into.

(c) There is a conflict with Constitutional provisions.

(d) Unreasonableness

(e) Ultra Vires.

Counsel for the Claimant submitted that Article 55 offered no protection to the Public Prosecutor in these circumstances.

He submitted that a lawful summons did not interfere with the independence of the Judiciary or the Public Prosecutor because the contempt proceeding under the Vohor case [2004] VUCA 1; CAC 5/04 had already been completed.

He also submitted that summons were not unreasonable or arbitrary and were Intra Vires in that they concerned a case which had already been completed.

In relation to the Fifth Defendant, it was submitted that charges against him were before the Police Service Commission and did not bear any relation to the question that is in issue before the Commission of Inquiry.

The Defendants responded that there had been no response to the letter giving the Defendants explanation to the Commission but in any event the Commission was inquiring into a case which had been ruled upon by the Court of Appeal. The defence submitted that the question of "sufficient cause" in the Act is a matter that the Court could rule upon should a prosecution for failing to answer the summons eventuate.

It was submitted that should the Public Prosecutor or his employees be called upon to give evidence it would be contrary to the protection extended to the Public Prosecutor under Article 55 of the Constitution and could lead to an erosion of public confidence in the institution of the Public Prosecutor.

LAW

The powers of Commissioners are set out in Section 7(1) of the Act, which provides as follows: -

"The Commissioners shall have the powers of a court of first instance to summon witnesses, to call for the production of books and documents, and to examine on oath witnesses and parties concerned."

Effectively the powers of a court of first instance to summon witnesses in the criminal forum are contained in section 82 of the Criminal Procedure Code [CAP. 136] which provides as follows:-

"POWER TO SUMMON MATERIAL WITNESS OR EXAMINE PERSON PRESENT

(1) Any court may at any stage of any trial or other proceeding under this Code summon or call any person as a witness, or examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.

(2) The prosecutor or the defendant or his advocate, shall have the right to cross-examine any such person, and the court shall adjourn the case for such purpose if it considers necessary."

A witness summoned by the Court who refuses to attend can be charged with an offence under Section 82 (1) (b) of the Penal Code [CAP. 135] which provides as follows: -

"No person shall - ...having been called upon to give evidence in a judicial proceeding, fail to attend, or having attended, refuse to be sworn or make an affirmation, or having been sworn or affirmed, refuse without lawful excuse to answer a question or to produce a document, or remain in the room in which such proceeding is being conducted after having been ordered to leave such room..."

Such a prosecution can arise from any judicial proceeding.

In the civil context Rule 11.15 of the Civil Procedure Rules No. 49 of 2002 provides that the Court may order that a summons be issued requiring a person to attend Court to give evidence, or to produce documents.

Rule 11.19 provides as follows:-

"Failure to comply with summons

(1) Failure to attend court as required by a summons to attend and give evidence, or produce documents, without a lawful excuse is contempt of court.

(2) A person who fails to attend court as required by a summons to attend and give evidence, or produce documents, without a lawful excuse may be dealt with for contempt of court."

Those are the general provisions setting out the powers of a Court at first instance to summon witnesses and the consequences of a prosecution arising for contempt of Court in the criminal sphere or in other judicial proceedings and for contempt of Court civilly in the event of a witness not attending. However in this context there are specific provisions of the Act in section 9 which apply. That Section provides:-

"PENALTY FOR NON-ATTENDANCE

(1) Any person summoned to attend as a witness or to produce documents before the Commissioners who without sufficient cause refused or neglects to do so, or refuses to answer any question put to him by or with the concurrence of the Commissioners, or having attended leaves the Commission without the permission of the Commissioners, or in any way insults the Commissioners or any of them, or wilfully interrupts the proceedings before them, shall be liable on conviction to a fine not exceeding VT20, 000:

Provided that no witness shall be bound to incriminate himself, and every witness shall, in respect of any evidence given by him before a Commission, be entitled to all the privileges to which a witness giving evidence before a court of first instance is entitled.

(2) Any witness who wilfully gives false evidence in any inquiry concerning the subject matter thereof shall be guilty of perjury and liable to prosecution and punishment accordingly."

FINDINGS

It is my view that the application for an order that the Defendants appear before the Commission of Inquiry and testify is misconceived. The power to issue a summons is that of the Commission and not of the Supreme Court. The consequences of refusing or neglecting to attend are clearly set out in Section 9 of the Act and the function of this Court or the Magistrates' Court where appropriate is not to enforce a summon issued by the Commission of Inquiry but is to preside over prosecution against a non attending witness which might follow and to impose a fine not exceeding VT20, 000 should a conviction be entered.

I am aware that section 13 of the Act provides that no proceeding shall be commenced for any penalty under the Act except by direction of Commissioners. Should witnesses not attend the Commission pursuant to a validly issued and served summons, the Commissioners can then decide whether or not they ought to direct that proceedings should be commenced under Section 9. Clearly in this case, the First Defendant is the Public Prosecutor. He would normally be the person to whom a direction from the Commission would be given. In this case the direction should properly be made to the Attorney General to formulate and lay a charge which might lead to a conviction. This is a procedure clearly envisaged lay the Court of Appeal in Vohor-v-Public Prosecutor [2004] VUCA 1; CAC 05 of 2004.

The function of this Court, or more properly the Magistrates Court because of the penalty involved, would be to adjudicate on a prosecution for any witness who had been summoned to appear and who had refused or neglected to attend. The function of this Court is not at this stage to force the witness to attend the Commission of Inquiry. However, let me say that the Commissioners should consider the provisions of Article 55 of the Constitution very carefully before directing that proceedings should start against the First, Second, Third or Fourth Defendants.

Article 55 provides as follows: -

"PUBLIC PROSECUTOR

The function of prosecution shall vest in the Public Prosecutor, who shall be appointed by the President of the Republic on the advice of the Judicial Service Commission. He shall not be subject to the direction or control of any other person or body in the exercise of his functions."

At the commencement of the hearing counsel for the Claimant withdraw the application that the Defendants be ordered to pay VT20,000 each and withdrew the application for the Defendants to be held in contempt of the Commission's summons.

CONCLUSION

For the above reasons the application for orders that the Defendants appear before the Commission pursuant to summons as issued to them and testify is declined.

I award costs for each of the Defendants against the Claimant as agreed or as determined by the Court.

Dated AT PORT VILA, this 26^th day of November 2004

BY THE COURT

P. I. TRESTON
Judge