IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
CIVIL APPEAL CASE No.24 of 2001
BETWEEN:
TOWRK Port-Vila
Municipality of P.O. Box 99,
Port-Vila
Appellant
AND:
AMBROSIO MELTERES,
Elected Councillor,
Port-Vila, Republic of Vanuatu
Respondent
Coram: Hon. Chief Justice
ncent Lunabek
Hon. Justice Bruce Robertson
Hon. Justice John von Doussa
Hon. Justice Daniel Fatiaki
Counsel: Mr. Ishmael Kalsakau
for the lant
Mr. George Boar for the
Respondent
Hearing date: 31
October 2001
Judgment Date: 31 October 2001
JUDGMENT
On 17 October 2001
there ware was a first meeting of the Councillors who have been elected to the
Municipality of Port–Vila
in an election held on 24 September 2001.
As required there
was at t at the initial meeting a vote for Mayor 7 votes were cast in favour of
the Respondent and 7
votes were cast in favour of Mr. P. C. Manarewo. The
Town Clerk pursuant to the provisions of Section 19 of the Municipal Council
Election Regulation contained in the Municipalities Act [CAP.125] was
persuaded that Mr. Manarewo was the older of the two and therefore he was
declared to be the Lord Mayor.
There is a dispute now as to whether Mr.
Melteres or Mr. Manarewo was first born.
These proceedings
were commenced in the Supreme Court on 22 October and sought a declaration
with regard to the situation
which had arisen. There have been various
proceedings in the Supreme Court including a pleading, an application to
strike
out, an application for leave to application for leave to ppeal
against the refusal to strike out and then eventually the appeal
to this
Court which is been brought on urgently today.
The law in this area
is clear. Under Section 34 of the Regulations the validity of any election
to the Municipal Council
may be questioned before an Election Disputes
Committee for that purpose under the Rules and not otherwise. Although we
had not picked up the point before the hearing began, we have had our
attention drawn to the provisions of Regulation 24
which provides that a
dispute with regard to the Election of a Mayor and Deputy Mayors may be
challenged in the same
manner as any other election matter. Although there
is a slight difference in the language we are left with no doubt that the
clear import of Parliament is that any matter arising out of a dispute
relating an election is to be heard in the first
instance by the Election
Disputes Committee. That is the body which has the jurisdiction. There is an
appeal from that
body to the Supreme Court but it is only at that point that
the Supreme Court should be involved in the matter.
Some questions were
raised as to whether there was an Election Disputes Committee in place. We
have now for the avoidance
of doubt have had made available to us a copy of
the instrument of appointment of a Committee of four which was made on 17
October 2001. But even if there were not personnel available that could not
have altered the jurisdiction as to where
this dispute had to be commenced.
Fortunately that
matter has to attention within the period of 21 days in which a dispute may
be referred to the Election
Disputes Committee so there is no danger of
anyone being denied their day in Court because there has been a
misunderstanding
as to the proper starting place.
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Accordingly there is
no issue which should ever have properly been in the Supreme Court. In those
circumstance not withstanding
the Orders which have been made below we are
satisfied that leave should be granted to appeal, the appeal should be
allowed
and that the entire proceeding is be struck out. These parties if
they cannot in and of themselves determine which of these
men was first
born, will need to immediately file a petition. The Committee will have the
straight forward task of determining
as a matter of fact which of these two
men is first born.
There are no other order sought
in this matnd the proceedings are accordingly struck out.
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DATED at PORT-VILA, this 31st
BY THE COURT
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V. LUNAJ
J.B. ROBERTSON J
J. von DOUSSA J
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D. FATIAKI J
