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Masanga v Timothy [2010] VUSC 57; Civil Case 13 of 2010 (7 May 2010)

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

Civil Case No. 13 of 2010

BETWEEN:

HON. IRENE MASANGA
Lady Mayor of Luganville Council and
HON. KASSO KALMET Deputy Mayor, ANDREW ALA
and JAMES PATRICK
Claimants

AND:

JOHN TIMOTHY,
Acting Town Clerk of Luganville Municipal
First Defendant

AND:

EUGENE TABI
GEORGE VIRA
IAN MANO
STEVEN REMY
JEAN BATISE
FREDY VUTI
GRAHAM BILL
as Councilors and Members of Finance Committee of Luganville Municipal Council
Second Defendants

AND:

LUGANVILLE MUNICIPAL COUNCIL
Third Defendant

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mr Daniel Yawha for the Claimants
Mr Saling Stephens for the First, Second and Third Defendants

Date of Hearing: 4th May 2010
Date of Reasons: 7th May 2010

JUDGMENT

1. On 4th May 2010, the Court heard an application filed by the Defendants seeking orders that –
   
   • (a) The entire proceedings of Civil Case No. 13 of 2010 be struck out; and
     
   • (b) Costs of and incidental to the action be awarded to the defendants.
     
2. The application was supported by the sworn statement of John Timothy filed on 3rd May 2010 together with the application.
   
3. Counsel for the Claimants did not object to the hearing of the application on short notice and the Court proceeded with the hearing. Submissions were heard from both Counsel and after a short adjournment, the Court returned and handed down an oral decision to these effect that the application was allowed, and the judicial review claim of the Claimants was struck out in its entirety. There was no order as to costs.
   
4. This judgment provides reasons for that decision.
   
5. The application was framed under Rule 17.8 of the Civil Procedure Rules which states –
   

"(1) As soon as practicable after the defence has been filed and served, the judge must call a conference.

(2) At the conference, the judge must consider the matters in subrule (3).

(3) The judge will not hear the claim unless he or she is satisfied that:

• (a) the claimant has an arguable case; and
  
• (b) the claimant is directly affected by the enactment or decision;
  

(4) .................; and

(5) If the judge is not satisfied about the matters in subrule (3), the judge must decline to hear the claim and strike it out."

6. Apart from his oral submissions, Mr Stephens relied on his written submissions. In essence, Mr Stephens submitted that the Claimants had no locus standi and relied on the case authorities of Edmanley v. Police Service Commission [2005] VUSC 159: CC 218 of 2005 in which it was held that a decision must directly affect the complainants and must not be an intermediate decision. Secondly, he relied on the case of Emelee v. Lini [2004] VUSC 89: CC 2 of 2004 where it was held that a mere loss of prestige was not sufficient to provide legal standing to bring a judicial review claim.

He relied on the evidence of John Timothy filed in response to the Honourable Irene Masanga’s sworn statement.

7. Mr Yawha on the other hand argued and submitted in essence that the Claimants had standing to bring a judicial review claim. He relied on the sworn statement of the Honourable Irene Masanga in particular paragraphs 1 and 2 which show that she was duly elected both as councilor and mayor on 28th January 2010. He further relied on his written submissions and the case law of Paul Avock Hungai v. Solomon Simon and Port Vila Municipal Council: CC 18 of 2009 where the Court held that a decision "to remove the executive power of the council from the mayor" was contrary to the Act and therefore was invalid.
   
8. I considered all submissions in light of the evidence by sworn statements and found as follows –
   
   • (a) In relation to Honourable Irene Masanga:-
     

Her election as mayor on 28th January 2010 has not been published in the Gazette as required by law. There is a provisio that the omission to not publish shall not invalidate such election. There is clear evidence that the withholding of publication of election result is not an omission. It is rather a deliberate act on the basis that the election is challenged. There is evidence that there has been a shift in the balance of power resulting in the current impasses that the Municipal Council is facing, so that it is not able to perform and move forward. Under those circumstances, it is the view of the Court that the Honourable Irene Masanga has no arguable case, hence no standing to bring a judicial review claim. She is merely enjoying prestige rather than privileges to give her standing.

(b) Andrew Ala – There is clear evidence that he has not been terminated but merely suspended awaiting further investigation and perhaps further disciplinary matter. As such, the decision he seeks to challenge is only an intermediary one, and therefore forms no basis for seeking judicial review based on Edmanley’s case.

(c) Hon. Kasso Kalmet – He also filed a Notice of Continuance against all the defendants. As such, he is no longer a Claimant and a party.

(d) James Patrick – He has no evidence before the Court. He has not complied with Rule 17.4(3) (b) by filing any sworn statement in support of his claim. He has no arguable case.

(e) Other staff members – These are not joined or named separately as parties. None of them have made any sworn statements. They have no case before the Court.

9. The case of Paul Avock Hungai must be distinguished in that he was the recognized mayor with privileges. It is not so with the present case.
   
10. The Court concluded for the foregoing reasons that the Claimants had no merits in their claims to entitle them to invoke the power to file for judicial review. Accordingly, the proceeding was struck out entirely. In its considered view, this was not a case which warranted any award of costs. Each party had to meet its own costs.
    

DATED at Luganville this 7th day of May 2010.

BY THE COURT

OLIVER A. SAKSAK
Judge