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Popovi v Pakoa [2006] VUSC 34; Constitutional Case 006 of 2006 (27 May 2006)

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

CIVIL CASE No.06 of 2006

BETWEEN:

CHIEF ANDREW POPOVI
c/- Tanaliu Village, North West Efate
Applicant

AND:

PHILIMON PAKOA
c/- Tanaliu Village
First Respondent

AND:

TAURASONGI DICK HARRY
Second Respondent

Mr Hillary Toa, Public Solicitor, for the Applicant
Mrs Marie Noelle Ferrieux Patterson for the Respondents

JUDGMENT

This is an urgent application of the Applicant dated 27 May 2006. Counsel for the Applicant filed the application under the title: "Urgent Ex parte Constitutional Petition" of Chief Andrew Popovi to the Supreme Court of the Republic of Vanuatu.

The Applicant filed a sworn statement of same date in support of his application at 4.00AM early hours of Saturday 27 May 2006. The application was heard by the Court on Saturday 27 May 2006 at 9.00AM o’clock in the morning.

Upon hearing both counsel and upon perusing the application and the sworn statement in support of it, the Court strikes out the application for the following reasons.

An action or application seeking to enforce the breach of constitutional rights under Article 5 of the Constitution or any other provision of the Constitution, must be made in accordance with the Constitutional Procedure Rules No.26 of 2003. A constitutional application seeking to enforce the breach of a constitutional right is issued against the actions of the Republic or agent(s) of the Republic of Vanuatu. The parties to proceedings started by a Constitutional Application are, therefore:-

(a) the Applicant; and

(b) the Republic of Vanuatu, as the Respondent.

In the present case, the constitutional complaint is made against the actions or potential actions of the First and Second Respondents as individual members of their community. There was no involvement of the Republic of Vanuatu or any of its agents warranting for a constitutional application and consequential remedies as sought in the application. There may be grievances in custom. However, the Constitutional Application being it "Urgent Ex parte Constitutional Petition" is not the proper process to obtain remedy or redress sought in the application. The Court strikes out the application and orders costs in favour of the First and Second Respondents against the Applicant.

The following Orders are made by the Court.

ORDER

1. The Interim Ex parte Orders sought on the basis of an "Urgent Ex parte Constitutional Petition" date 27 May 2006, are refused and thus, are truck out.
   
2. The costs are for the First and Second Respondents against the Applicant in:-
   

VT15,000 (for costs for fuel)

VT30,000 (for legal costs).

Total: VT45,000

3. Method of Payment
   

The Applicant agrees to pay the amount of Vatu 45,000 by way of instalment as follows:-

(a) The first payment shall be made of VT10,000 by 30 May 2006

(b) An amount of 5,000VT be paid after 30 May 2006 until the total balance of VT45,000 be paid by 30 December 2006.

Dated at Port-Vila this 27th day of May 2006

BY THE COURT

Vincent LUNABEK
Chief Justice