Korman v Ombudsman of the Republic of Vanuatu [2001] VUCA 24; Civil Appeal Case of 2001 (1 November 2001)

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

Civil Appeal Case No. of 2001.

BETWEEN:

MAXIME CARLOT KORMAN
Appellant

AND:

THE OMBUDSMAN of the Republic of Vanuatu
Respondent

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

Hearing Date: 31st October 2001
Judgment Date: 1 November 2001

Counsel: Mr. Ozols for the Mr. Korman
Mr. Malcolm for the Mr. Willie Jimmy
Mr. R. Sugden for the Respondent

JUDGMENT

The Appellant seeks leave to appeal to this Court against 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 the ruling of the 2^nd October 2001 the Chief Justice erred in law in granting an amendment to the pleading by permitting an amendment to the relief sought.

Finally there’s an application for leave to appeal out of time 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.

It is necessary before becoming lost in the procedural intricacies 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 first 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 Compensation to the Honourable 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 Court for too long a time. Associated 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 doubt that the issues which are raised are in a number of aspects of critical importance to this Republic and its future.

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

In 1995 the Ombudsman Act No. 14 was enacted. It came into force 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.

Section 30 of that Act provides:-

“30. POWERS OF ENFORCEMENT

(1) The Ombudsman’s powers of enforcement are limited to publicity of his proceedings, reports and recommendations, to the making of reports and recommendations 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) The Ombudsman may however apply to the Court for an order that the Court make an order giving effect to a recommendation of the Ombudsman in the event that –

(a) (i) the responsible person has failed to respond to the Ombudsman’s report after being given a reasonable opportunity to do so; or

• (ii) the responsible person has responded to the Ombudsman’s report in a manner which fails to resolve the problems identified by the Ombudsman’s reports; or
  
• (iii) the responsible person has responded to the Ombudsman’s report but has thereafter failed or refused to carry out the decision communicated in his response after being given a reasonable opportunity to do so; and
  

(b) (i) the report reveals (whether this is stated or not) a breach of any of the fundamental rights contained in Articles 5 (1) of the Constitution; or

(ii) a breach of the Leadership Code; and

(c) (i) the application is made within 24 months of the date of the Ombudsman’s recommendation; or

(ii) the Court has within that period of 24 months granted to the Ombudsman an extension of time for the Lodging of an application based on sub-section (2) (a) (iii) of this section on the grounds that the responsible person requires a further period of time in order to carry out the required actions.

(3) The Court may make an order on such application requiring the person responsible to carry out the Ombudsman’s recommendations or the decision of the person responsible or to take such other reasonable action as is necessary to resolve the breach of fundamental rights or of the Leadership Code identified by the report.

(4) On considering an application under the above sub-section (2), the Court shall give the person responsible an opportunity to be heard and may re-open issues decided by the Ombudsman, examine any witnesses examined by the Ombudsman or other witnesses and generally conduct the proceedings in the manner required to do justice to the case.

(5) The Court may enforce an order made by it under this section by any method of enforcement available in civil proceedings, including committal for contempt and the payment of compensation to any person who has suffered 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) The Supreme Court shall continue to have jurisdiction to hear and determine the matter, even if either before or during the proceedings, the leader or person responsible, for whatever reason ceases to be a leader or person responsible .”

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

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

Under section 30 (3) the Court is vested with a discretion as to whether 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 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 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 time to stop playing procedural games in this case. There is an urgent need for hearing on the handful of basic issues which arise and will determine the cases.

We expressed serious reservations about the need to have the Attorney 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 Privacy Council in Attorney General of Fiji v DPP [1983] AC 672

Mr.Sugden has indicated that he will apply to join the 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 that the Court may also need to have the ability to consider 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 behalf of the appellants that this power in section 30 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.

If there exists a factual foundation for the Ombudsman to 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 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.

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

Leave to appeal is refused.

The Respondent is entitled to costs in the normal way against the Appellants.

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

Justice Bruce Robertson
Justice John von Doussa
Justice Daniel Fatiaki