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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Constitutional Case No.03 of 2005
BETWEEN:
JEAN ALAIN MAHE
First Applicant
AND:
JACOB THYNA, RONALD WARSAL & YVETTE SAM
Second Applicants
AND:
THE PRESIDENT OF THE REPUBLIC OF VANUATU
First Respondent
AND:
THE PRIME MINISTER OF THE REPUBLIC OF VANUATU
Second Respondent
AND:
THE ATTORNEY-GENERAL OF THE REPUBLIC OF VANUATU
Third Respondent
REASONS FOR JUDGMENT ON DAMAGES
This is the judgment on the assessment of damages of the First Applicant.
The brief factual background is set out below.
On 13 August 2004, the First and Second Applicants were appointed as Members of the Public Service Commission for a period of three (3) years by the President of the Republic of Vanuatu in accordance with the provisions of Article 59 of the Constitution.
On 13 August 2004, the President appointed the First Applicant as chairman of the Public Service Commission for a period of one (1) year in accordance with the sub-Article (2) of Article 59 of the Constitution.
Article 59 of the Constitution provides:-
"59. Members of Public Service Commission
(1) The Public Service Commission shall be composed of five members appointed for 3 years by the President of the Republic after consultation with the Prime Minister.
(2) The President of the Republic shall appoint every year, from among the members of the Commission, a chairman who shall be responsible for organising its proceedings.
(3) A person shall be disqualified for appointment as a member of the Commission if he is a member of Parliament, the National Council of Chiefs or a Local Government Council or if he exercises a position of responsibility within a political party.
(4) A person shall cease to be a member of the Commission if circumstances arise that, if he were not a member, would disqualify him for appointment as such."
On 28 February 2005, the First and Second Applicants were removed as chairman and members of the Public Service Commission by a Removal Notice issued under the hand of the President of the Republic.
The First and Second Applicants file a Constitution Application dated 7 March 2005 seeking the following relief:-
1. A declaration that the purported removal notice issued under the hand of the President of the Republic made at Port Vila dated February 20, 2004 is unlawful and of no effect.
2. A declaration that any purported appointment of persons by the President of the Republic of Vanuatu as a member of the Public Service Commission is unlawful and of no effect.
3. A declaration that the Applicants appointment as members of the Public Services Commission for a term of three years with effect from August 15, 2004 and appointment of the First Applicant as chairman of the Public Service Commission cannot be removed by the President of the Republic of Vanuatu unless one or more of the criteria as set out in Article 59 of the Constitution is satisfied or unless resigns.
4. The President of the Republic of Vanuatu is prohibited from declaring a vacancy in respect of the office of the First Applicant otherwise in accordance with Article 59 of the Constitution and/or the Public Service Act 1998 - No. 11 of 1998.
5. Damages (in the alternative).
6. Such other relief as the court deems fit.
7. Costs.
On 2 September 2005, the Supreme Court made the following orders:-
"ORDER UPON hearing counsel on behalf of the their respective clients, AND UPON reading the sworn statements of Jean Alain Mahe and Ronald Warsal in support of the application, AND UPON considering the submissions of all counsel, the Court makes the following Orders:-
Since the Court judgment of 2 September 2005, various conferences were held by the Court between the parties to assess the damages of the First and Second Applicants.
On 29 December 2006, the Second Applicants and the First, Second and Third Respondents have agreed to settle damages in relation to each of the Second Applicants which were eventuated through the Consent Order dated 29 December 2006.
The First Applicant and the Respondents could not settle the First Applicant’s damages, despite various encouragements and conferences held by the Court between the parties for that purpose.
The assessment of the First Applicant’s damages requires Court assessment. The Court heard submissions from counsel with respective sworn statements filed in support.
At the outset, the First Applicant accepted the mode of calculation provided by the Respondents which is contained in the sworn statement of Mr. Mark Bebe, Secretary of the Public Serivce Commission, dated and filed 25 Maarch 2008 and exhibited "MPB4". The First Applicant agreed he is entitled to the following:-
"A. Balance of one year’s Appointment as Chairman of Public Service Commission which is 5 months and 2 weeks
This entitlement is comprised of:-
Annual Salary VT1,743,467
One months salary VT145,289 x 5 months VT726,445
Total VT792,518
B. Balance of 3 year term as Member of the Public Service Commission which is 2 years 5 months 2 weeks
Public Service Commission sits twice in a month and each sitting allowance is VT3,000
Thus 29 motnhs + 2 weeks
29 months x 2 sittings each month = 58 sittings + 1 sitting for 2 weeks = 59 sittings altogether
59 sittings x VT3,000 each sitting = VT177,000
Total = VT177,000
C. Repatriation = VT50,000
D. Gratuity VT145,289 x 2 months = VT290,578
E. Loss of Opportunity costs.
The First Applicant claims he is entitled to loss of opportunity as a result of unlawful removal as the chairman of the Public Service Commission. He claims for the loss of chance of re-appointment at 100%. The Respondents accept that he is entitled to some costs to be assessed at 25% but not at 100%.
The First Applicant informs the Court that he will no longer pursue his claim for nominal damages nor aggravated damages.
Issues
The outstanding issues relating to the assessment of the First Applicant award of damages is two fold:-
First, whether the First Applicant is entitled to be reappointed chairman of the Public Service Commission at the end of his one year appointment on 13 August 2005. If so what is the percentage of his chance of re-appointment: 100% or 25%?
The First Applicant says in his sworn statement dated and filed 15 April 2008, that it has been a practice since independence that a chairman is re-elected to the chairmanship post every year until the end of his three year term as a member of the Commission. The First Applicant’s counsel, estimated and submitted the First Applicant’s chance of being re-appointed at 100%.
The Respondents refuted such a claim and submitted that between 2001 and 2005, there had been three (3) different people occupying the position of the chairmanship of the Public Service Commission. The Respondents say although, they have not produced evidence of what they alleged, the Court can take judicial notice of the fact that the chairman of the Public Service Commission in 2001 was Amos Titongoa, who was replaced by the First Applicant in 2002, and further replaced by the current chairman, Charles Maon after his appointment in 2005. The Respondents submit that this trend does not prove 100% opportunity chance for the First Applicant to be re-appointed as chairman of the Commission. The Respondents by counsel, submit that the chance of the First Applicant is 25% and any opportunity loss is to be assessed accordingly at 25% chance.
I have no magic formula to assess the loss of opportunity in the sort of cases as the one before me. What I have observed from the sworn statement of the First Applicant is that he made reference to the Independence date 30 July 1980 to 28 February 2005, the date of his removal as the chairman of the Commission. During that period he said the trend is that when a member of the Public Service Commission is appointed as chairman, there is a chance of 100% likelihood that he/she would be re-appointed. I accept what the Respondents say in that between 2001 and 2005, there are three different persons appointed as chairman of the Commission. I accept as a fact that between 30 July 1980 to 2001, the trend is that the chairman of the Public Service Commission is reappointed as chairman of the Commission until his or her term of three years expired as there is no evidence provided by the Respondents to the contrary. That is quite a lengthy period. I assess the current position in this way. The First Applicant was appointed chairman of the Commission on 13 August 2004. If he had not been unlawful removed, there is a likelihood that he could be re-appointed as chairman for another term or until his three (3) years terms expired. I do not accept that this will be 100% chance as unforseen circumstance could have arisen but I assess the chance at 50% and I assess the costs of the loss of opportunity of reappointment to the chairmanship of the Commission from 28 February 2005 to the end of his three years terms of the membership of the Public Service Commission to be 50% loss of that opportunity.
I, thus, use the mode of calculation provided for 25% loss to be VT287,000 x 2 = VT574,000 to be the award of his loss of opportunity.
Second, the First Applicant claims and submits that he is entitled to an award of VT200,000 for exemplary damages as punitive damages for his unlawful removal from his membership and chairmanship of the Public Service Commission before the expiry of his terms of appointment under Article 59 of the Constitution.
The Respondents by counsel submitted to the contrary.
I refuse to consider this head of claim for an award of exemplary damages in this type of action as there is no basis in law. Below are the reasons for my refusal. Exemplary damages are sometimes referred to as punitive or vindictive damages. Damages are a sum of money awarded by a Court as compensation for a tort or a breach of contract. In exceptional cases in tort (but never in contract) exemplary damages may be given to punish the defendant’s wrongdoing. Oxford Reference: A Concise Dictionary of law in its second edition provides the following definition and circumstances under which exemplary damages are awarded:
"Exemplary damages (punitive damages, vindictive damages) Damages given to punish the defendant rather than (or as well as) to compensate the plaintiff for harm done. Such damages are exceptional in tort, since the general rule is that damages are given only to compensate for loss caused. They can be awarded in three cases: (1) when expressly authorised by statute; (2) to punish oppressive, arbitrary, or unconstitutional acts by government, servants; (3) when the defendant has deliberately calculated that the profits to be made out of committing a tort (e.g. by publishing a defamatory book) may exceed the damages at risk. In such cases, exemplary damages are given to prove that "tort does not pay". Exemplary damages cannot be given for breach of contract."
In the present case, the damages claimed by the First Applicant (and Second Applicants) arose out of the complaint that the First, Second and Third Respondents had breached the First Applicant’s term of appointment as a then member of the Public Service Commission and also then chairman of the Public Service Commission from 13 August 2004 to 13 August 2007.
The damages sought are damages for the breach of the First Applicant’s terms of appointment under Article 59 of the Constitution. Damages claimed are not for an action in tort but they are contractual in nature. The claim for exemplary damages is therefore refused.
The First Applicant claims also for his costs. The First Applicant is entitled to his costs to be assessed from the month of August 2006 when Mr. Daniel Yawah began to act on his behalf. I assess the costs taking into account of 10 conference hearings, including the unpaid wasted costs of VT5,000 made in favour of the First Applicant on 6 November 2006, and his legal costs and I determine the costs at VT260,000.
In summary, the First Applicant, is entitled to the following damages corresponding to:-
A. Balance of one year’s appointment as chairman of the Public Service Commission which is 5 months and 2 weeks.:
B. Balance of 3 years term as a member of the Public Service Commission which is 2 years 5 months and 2 weeks.: VT177,000
C. Repatriation: VT50,000
D. Gratuity: VT290,578
E. Costs of loss of opportunity at 50% at the figure of VT574,600.
In addition to the above the First Applicant is entitled to his costs of VT260,000.
The First Applicant is therefore entitled to a total award of damages assessed at VT2,280,369 (inclusive of costs of VT260,000).
The First, Second and Third Respondents shall pay the above sum of VT2,280,369 to the First Applicant. A conference is scheduled on 2 June 2008 at 1.30 p.m. o’clock to ascertain how the Respondents should pay the above said sum to the First Applicant.
Orders shall be made to this effect according.
DATED at Port Vila, this 22nd day of May 2008.
BY THE COURT
Vincent LUNABEK
Chief Justice.
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URL: http://www.paclii.org/vu/cases/VUSC/2008/39.html