Korman v Ombudsman of the Republic of Vanuatu [2001] VUCA 13; Civil Appeal Case 23 of 2001 (1 November 2001)

IN THE COURT OF APPEAL OF

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THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Appeal Case No.23 of 2001

BETWEEN:n>

MAXIME CARLOT KORMAN
Appellant

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THE OMBUDSMAN of the Republic of Vanuatu
Respondent

Coram: Hon. Justice John von Doussa Hon. Justice Bruce Robertson

Hon. Justice Daniel Fatiaki

Counsel: Mr. Ozols for the Mr. Korman

Mr. Malcolm for the Mr. Willie Jimmy

Mr. R. Sugden for the Respondent

Hearing Date: 31st October 2001

Judgment Date: 1 November 2001

JUDGMENT

The Appellant seeks leave to appeal to this Court against inst various decisions made by the Chief Justice in hearing Constitutional Cases 85 of 1997 and 104 of 1997. On the 19^th October 2001 the Chief Justice refused leave to appeal. His reasons are contained in a document of 29 October 2001. As a matter of urgency we are now considering the issues because it is clear that the matters outstanding in respect of these matters require to be brought to a conclusion and the delay to our next session in April 2002 needed to be avoided.

The first issue in time arises from the decision of the Chief Justice delivered on the 4^th May 2001 when in Constitutional Case No. 85 of 1997 and the consolidated Constitutional Case No. 104 of 1997 the Chief Justice made a substantial number of rulings particularly that the pleadings did disclose a reasonable cause of action. The leave sought in respect of the May Judgment is against a ruling that the Respondent who was the plaintiff in the Court below was permitted to sue in the name of the Attorney General of Vanuatu on an ex-relatione basis.

Secondly it is contended that in uling of the 2^nd/sup> October 2001 the Chief Justice erred in law in granting an amendment to the pleading by permitting an amendment to the relief sought.

Finallye’s an application for leave to appeal out of time agme against other decisions of the learned Chief Justice made on the 4^th May 2001 namely that section 30 of the Ombudsman Act No. 14 of 1995 could provide a basis for the litigation and the Ombudsman could be a plaintiff pursuant to that section.

class="MsoBoMsoBodyText2" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> It is necessary before becoming lost in the procedural intricacies of s of this matter to have regard to the factual circumstances in which this litigation has its basis.

In 1996 and 1997 the Ombudsman conducted inquiries into two matters. The firstfirst was a decision made by the Council of Minister in September 1993 which approved payment amounting to VT34.5 Million to various of the present Appellants and others associated with them for what was described as political injustice which they had suffered in 1988. The Ombudsman’s report is pursuant to section 30 (3) of the Ombudsman Act and is entitled “Public Report on Illegal Ex-Gratia Payments to 23 1988 Former MPs”. It recommended that the payment of VT1,500,000 together with interest at the rate of 5 % for the period the money was out of the public revenue be repaid by each of the involved individuals.

The second case involves a report On the Payment of Comtion to the Honourable Maxi Maxime Carlot Korman, the Honourable Willie Jimmy and the Honourable Barak Sope in breach of the Leadership Code in compensation in 1994. It recommended among other things that each of the named persons return payments of VT5 Million to the Republic of Vanuatu together with interest at the rate of 5 % for the period the money was out of the public revenue together with a further Vt. 6 million paid for legal fees. A total of Vt. 21 million is involved.

The two proceedings have been round the Cour too long a time. Associateciated with all this was an application for a declaration that the Ombudsman’s Act 14 of 1995 was unconstitutional and invalid.

There can be no dohat the issues which are raised are in a number of asof aspects of critical importance to this Republic and its future.

The office of Ombudsman is founded in the Constin. The ability of an Ombudsmbudsman to undertake inquiry is extensive. The Constitution makes provision for Ombudsman’s findings to be dealt with in general terms.

p class="MsoBoMsoBodyText2" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> In 1995 thudsman Act No. 14 was enacted. It came into force on e on the 18^th September 1995. It is described as being an Act to provide for the powers and procedures and immunities of the Ombudsman in addition to those provided for in the Constitution and for other matters relating to the Ombudsman and his delegates and for the purposes of giving effect to the principle of section 10 (Leadership Code) of the Constitution.

p class="MsoBoMsoBodyText2" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> Section 30 of that Act provides:-

“30. POWERS OF ENFORCEMENT

(1) &nbssp;&nnsp;&&nsp; &nsp; &nbbp;&nnbsp; Tpan>The Ombudsman’s powers of enforcement are limited to city s oceedings, reports and recommendations, to the making of reports and nd r recommecommendations to the Parliament and the Prime Minister and other relevant bodies and person as provided for under this Act, and to the giving of advice.

(2) &&nsp;;&nspp;&nssp; p; The Ombudsman may however apply to the Court for an order that the Court make an order giving effect to a recommendationhe Oman in the event that –

(a) ;&nbssp; &nsp; &nbs; &nbbp;&nnbp;& (pan>(i) the responsiblson has fail failed to respond to the Ombudsman’s report after being given a nablertuni do so; or p> clasoBodyTextyText2" al2" align="ign="left"left" styl style="text-align: left; margin-top: 1; m 1; margin-bottom: 1">

(ian style="font:7.0pt "quot;Times New Roman""> &nnbsp;; &nsp; &nsp; &&nbp;; / the resp responsiblnsible person has responded to the Ombudsman’s report in a manner which fails to resolve the pms idied b Ombudsman’s eport

(iii) &nnbsp; &nnbsp; p; the responsible person has responded to the Ombudsman’s report but has thereafter failed or refto caut thisionunican s response after beer being ging given iven a reaa reasonabsonable opportunity to do so; and pan>

(b) ;&nbssp; &nsp; &nsp;  p; &nnsp;&&nsp; (i)&nbsp the report reveals (whether this is stated or not) a breach of any of the fundamental rights contained in Articles 5 (1) of the Contion;span>

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(c) &nbbsp; &nbbsp; &nbp; &nbp; (sp; the appliapplication is made within 24 months of the date of the Ombudsmaecommion; span>/p> p clasoBodyText2" align="left" style="tle="text-aext-align: left; margin-top: 1; margin-botn-bottom: tom: 1"> 1"> <

(ii) &nnsp;&&nsp;; sp tpan>the Court has within that period of 24 months granted to the Ombudsman an extension of time for the Lodging of an application bon ub-se (2) (a) (iii) of this section on the grounds tnds that that the he responsible person requires a further period of time in order to carry out the required actions.

(3) &nnsp;&&nsp;;&nspp;&nssp;&nsp;

p class="Mss="MsoBodyText2" align="left" style="text-align: left; text-indent: -35.45pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1"> (4) &nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; &nsp; On corindean a an application under the above sub-section (2), the Court shall give the person responsible an opportunity to be heard ay e-opeues decided by the Ombudsman, examine any witnesses examineamined by d by the Ombudsman or other witnesses and generally conduct the proceedings in the manner required to do justice to the case.

(5) &nnsp;&&nsp;;&nspp;&nssp;&nsp; an>Tpe Court may enforenforce an order made by it under this section by any method of enforcement available in civil proceedings,udingittal for contempt and the paymentompensation to any person whon who has has suffesuffered red damage as a result of failure to comply with the order. Such enforcement action may, at the Court’s discretion, be taken against an individual person responsible provided that the ability to comply with the order is within the power of that person and is not dependent upon the action of any other person or body not under his control.

(6) & p;&nssp;&nsp; &nsp; ;&nbpp; / Tpan>The Supreme Come Court shall continue to have jurisdiction to hear and determine the matter, even if either before or during the proceedings, the leader oson rsible whatever reason ason ceaseceases to s to be a leader or person responsible .”

As we apprehend the argument now advanced it is cded that under those provisrovisions the Ombudsman lacks the power to initiate Court proceedings for an order that the recommendation of the Ombudsman be given effect to.

Howthat is not what the plain words say. There is discreiscretionary right which is vested in the Ombudsman under section 30 (2).

Under section 30 (3) the Court is vested a discretion as to whether ther it will make such an order or order other reasonable action as is necessary to resolve the breach of the fundamental rights or of the Leadership Code identified by the report.

The two reports in question relate to very substantial sial sums of money paid to politicians by politicians in circumstances which must be viewed as at least unusual.

A constitutional entity has reported in the most strident terms cons condemning what occurred. A report has been published and on the pleadings the recommendation have not been acted upon.

Parliament in the Ombudsman Act created certain rights which the Ombudsman has initiated.

We agree with the Chief Justice that it is to stop playing procedural ural games in this case. There is an urgent need for hearing on the handful of basic issues which arise and will determine the cases.

class="MsoBoMsoBodyText2" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> We expressedous reservations about the need to have the Attorney rney General involved in any way with the plaintiff. Mr. Sugden has confirmed that he will not take up the authority offered by the Court to make this a relator proceedings. The case should never have included a reference to the name of any holder of the Statutory office. It is the Ombudsman as an institution which has the power and rights. Hereafter the plaintiff in each case will be described simply as the Ombudsman of the Republic of Vanuatu. We respectfully adopt the reasoning of the Privy Council in Attorney General of Fiji -v- DPP [1983] AC 672.

Mr. Sugden has indicated that will apply to join the Atte Attorney General as a further defendant in each case. That is a matter for the Supreme Court, but to ensure that all matters are properly before the Court, it would appear sensible.

We are persuaded that a straight reading of the plain words of Section 30 (2) permits the proceeding against the individuals who have ignored the recommendations to repay to the Public Revenue the various sums they each received together with interest. The preconditions in 30 (2) (a) (b) & (c) are alleged to exist therefore the proceeding is available.

It is possible the Court may also need to have the ability to considensider under 30 (3) and 30 (4) whether Orders need to be made against officers of the State who also did not respond to the recommendations. If that is so, the Attorney General is the appropriate party to represent them.

It is said on b of the appellants that this power in section 30 is u is unusual, if not extraordinary. Whether that is so is irrelevant. Subject to the Constitution, Parliament has a Supreme law-making function. The Supreme Court has previously held that the Ombudsman’s Act is not unconstitutional. The Courts have a Constitutional duty to apply the Act and to uphold the rights which have been created by Parliament.

Ife exists a factual foundation for the Ombudsman to into invoke the power provided in Section 30, then the Court is bound to get on with the necessary enquiry and decision making.

We are not persuaded that there is any need to or sense in granting leave to apto appeal what are basically house-keeping decisions to date. We are satisfied that the jurisdiction to proceed to hearings in each of the cases has been made out. There has already been too much delay.

Anues which require further consideration by the Court ourt will best be dealt with after trial and determination when the facts have been established, if there is an appeal by any party.

ass="MsoBoMsoBodyText2" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> Leave to appeal is refused.

class="MsoBoMsoBodyText2" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> The Responde entitled to costs in the normal way against the Appe Appellants.

Dated at Port Vila this 1^st day of November 2001.

Justice Bruce Robertson
Justice John von Doussa Justice Daniel Fatiaki