IN THE COURT OF APPEAL OF
THE
REPUBLIC OF VANUATU
Appellate Jurisdiction
CIVIL APPEAL CASE No.08 of 2001
BETWEEN:
Hon. PAUL REN TARI,
Member of Parliament
Appellant
AND:
EDWARD NIPAKE NATAPEI & OTHERS
Respondents
Coram: ce Bruce
Robertson
Justice John von Doussa
Justice Daniel Fatiaki
Justice Oliver Saksak
Justice Reggett Marum
Counsel: Mr. Kalkot
Mataskelekele for the appellant
Mr. Silas Hakwa for the defendants
Date of hearing: 25
April 2001
Date of judgment: 25 April 2001
ORAL
JUDGMENT
There was filed in the Court by the appellant
personally a Notice of Appeal in respect “of the judgment imposed and
Orders
made by the Supreme Court on the 12th April 2001”.
At the beginning of this week a Notice was filed
by Mr. Kalkot Mataskelekele advising that he had been instructed to act as
advocate in respect of this appeal and asked for it to be adjourned until
next session. The Court was not attracted to such
option and raised with Mr.
Mataskelekele the acceptable possibilities. The Court expressed the
preliminary view that it
was not in anyone’s interest to have issues of
this sort unresolved for a period of six months with the potential for that
having a destabilising effect. Mr. Mataskelekele was asked to consider
before the matter was recalled today:
(a)
the
actual issues which the appellant was seeking to have the Court of Appeal
deal with;
(b)
why
there would be no harm in delay; and finally
(c)
what
is there that required immediate attention;
Mr. Mataskelekele has provided us with a helpful
document. It is now apparent that the appeal relates not only to matters
which were dealt with on the 12th April 2001 but to a series of
Orders made in the Supreme Court between the 6th and the 13th
April.
Particularly, it is indicated that the appellant
intends to put before the Court of Appeal issues which he identified as:
“1) Were the judgements, orders, rulings or decisions
of the Hon. Chief Justice His Lordship Vincent Lunabek in Supreme Court
Civil Cases 35 and 49 of 2001 made on 6th, 12th and 13th
April 2001 requiring the Speaker of Parliament/the Appellant to convene
Parliament to sit, consider, debate and vote on
the Motion of No Confidence
in the previous Prime Minister subject to the Standing Orders of Parliament
or not?
2)
Since the Parliament did not suspend its own Standing
Orders pursuant to Orders 46 so that it could sit outside of the normal
days
(Standing Orders 15) and hours (Standing Orders 16) stipulated in those
Standing Orders, were the Parliament sittings
ordered by the Hon. Chief
Justice on the 6th, 12th and 13th April
2001 in effect wholly or partly invalid or not?
3)
Did Order 2 of 13 April 2001 in Supreme Court Civil
Case No.49 of 2001 requiring imminent arrest of the Speaker of Parliament
if
he failed to comply with the terms of the Supreme Court Orders of 13th
April 2001 beach the Constitutional (Article 27) and or Standing Order
(Standing Order 43) and or conventional (if any)
and/or customary (if any)
approval relating to the Privileges of Members of Parliament?
4)
Can Members of Parliament as individuals and or by
their counsel waive Parliamentary immunity and privilege in a Court of Law
or in any other situation without the approval of Parliament or required
process (if any)?
5)
What are the possible legal
and or practical remedies available to this Honourable Court to decide and
what are,
or will be or could be their effects if the Court were to find in
favour of the appellant on the issues outlined above?”
The issues were discussed between counsel and
the Bench when the matter was first called shortly after 9.00am.
It was stood down because it appeared that there
was a misapprehension as to the power of an Appellate Court. The powers of
an Appellate Court are defined by statute. The first thing which must be
clear is that the Court can only comment upon and
reach a determination in
respect of the Orders which were made. There is no way on an appeal that the
Court should or could
comment upon consequent action.
We have been at some pains to point out to Mr.
Mataskelekele and his client that it appears to us that what he is really
identifying in the five points recorded above are issues where it is said
there has been a breach of rights under Article 5
of the Constitution for
which he is seeking redress on behalf of his client.
It is clear beyond any doubt that such issues
can only be considered on the basis of a Constitutional Petition. The
Constitution
provides that such proceeding must be commenced and advanced in
the way described in the Criminal Procedure Code [CAP 136] Section 218. It
is a matter to be heard in the Supreme Court with a right of appeal to this
Court .
Notwithstanding thea clear indication Mr. Mataskelekele
advises that he and his client are insistent that this appeal should
be
heard. The effect will be that the Courtng heard the parties will
either dismiss the appeal, aal, allow the appeal in
total, (which will have the
effect of vacating the Orders which were made) but with absolutely no effect
in law or reality
on any action which took place following the making of
those Orders.
Everybody who wishes to proceed with this appeal
must understand that the Court cannot (and will not) make any orders or
declarations which relate to actions subsequent to the granting of the
Orders in the Supreme Court. That would be beyond the
proper jurisdiction of
an appellate Court.
Some will get the clear and unequivocal message
that to hear this appeal is only of academic interest. It can do nothing to
assist or effect anything which has occurred since the original orders were
made.
If there is a genuine worry that there has been
a breach of constitutional rights, that can only be dealt with by way of a
Constitutional Petition.
However, it is fundamental that where there is a
right of appeal (and there is in this case) a Court cannot refuse to hear
the appeal even if all the information suggests that it is a futile exercise
which can never achieve what is troubling the
litigants.
We have done all we can to forewarn everybody of
the limit of our power and of the only consequences which, as a matter of
law, can possibly flow from this process.
Mr. Mataskelekele advises us that
notwithstanding that advice he is insistent that the matter be heard.
Accordingly time
must be found even if it means that we will have to sit
during some unconventional hours to try to accommodate the matter before
the
Appeal Judges leave the jurisdiction. Sometimes emergencies and exigencies
require that the unconventional does have
to happen.
The matter will accordingly be listed for
hearing for 11.00am on Friday next, the 27th April. There should
be written submissions available from the appellant not later than 9.00am on
Friday morning to identify
the issues and to enable the respondents to know
what it is that they are called to answer.
Mr. Mataskelekele then requested that we adjourn
until after lunch to have his instructions confirmed in light of what had
been said.
At 1.45pm a further request was made to adjourn
the appeal to the October Session which was refused.
Leave was then sought to withdraw the appeal.
There was no opposition and leave was granted
and the appeal is dismissed.
DATED
at PORT-VILA, this 25th DAY of APRIL, 2001
BY THE COURT
J.B. ROBERTSON J
J. von DOUSSA J
D. FATIAKI J
O. SAKSAK J
R. MARUM J
