Malachi v Lui [2007] VUMC 2; Civil Case 56 of 2007 (16 August 2007)

IN THE MAGISTRATES' COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 56of 2007

BETWEEN

WESLEY MALACHI
Claimant

AND

PATU LUI, Commissioner of Police
First Defendant

AND

THE POLICE SERVICE COMMISSION
Second Defendant

Coram: Steve R. Bani

Counsels: Mr. Stephen T. Joel for the Claimant
Mr. Frederick J. Kilu &
Mr Avock Godden for the Defendants.

DECISION

By a Magistrates Court Claim the Claimant claims liquidated sums of outstanding salaries claimed to have been wrongfully forfeited by the Defendants. By a defence filed for the Defendants, the substance of the claim is denied. This action was set down for trial on 8^th August 2007 at 9:00 AM, however, counsel in defence filed an Application to have the action struck out. The application in substance is one of lack of jurisdiction. The application is styled in the following manner:-

Take Notice that the Defendants will apply for the following order:

1. That the claimant's claim filed on 8^th May 2007 be struck out;

2. The claimant pays the defendant's costs.

3. In the alternative that the matter be stayed pending further orders of the court.

On the grounds that:

1. The Claimant in substance is challenging the powers exercised by the First Defendant when he forfeits the claimant's salary during the period of interdiction.

2. That such claim alleging the first Defendant to have acted ultra vires of his powers can only be instituted by way of a Judicial Review. Thus the remedies which the claimant should have sought was, to seek a quashing order (certiorari) of the First Defendant's decision and to seek a Mandatory order (Mandamus) compelling the second defendant to invoke section 64 (3) of the Police Act as they are alleging.

3. Given that the substance of the claim is challenging the decision of the First Defendant, and asking the court to compel the second defendant to fulfill its obligation under section 64 of the Police Act, are remedies that can only be commenced by way of judicial review. Therefore this honourable court does not have the jurisdiction to determine this matter only the Supreme Court.

4. In any event the claimant is now barred from instituting a judicial review claim. Hence this is an abuse of the Court process.

For completeness, the Claimant's pleadings is such that on 18^th January 1997 the First Defendant interdicted the Claimant from the employment of the Second Defendant for an alleged unlawful strike action in or about October 1996. The interdiction was lifted in September 2000. During the period of interdiction the Claimant was receiving only half of his salaries. When the interdiction was lifted, an order was also issued for the forfeiture of the part of the Claimant's salaries payable but withheld during the period of interdiction.

It is pleaded that the order for forfeiture, issued by the First Defendant was legally wrong as he did not have that power to exercise under section 64 (3) of the Police Act Cap 105.

Counsel in defence submits that because the remedies sought by the claimant are in effect seeking to challenge the decision of the Defendants acting in their capacities as public bodies the Magistrates court lacks jurisdiction to adjudicate that claim. It is submitted that the Claimant's claim ought to have been brought by way of a judicial review.

It is contended by counsel for the Claimant that they could not seek judicial review as they are now time barred and this would not be favourable to the Claimant. It would seem that that the Claimant.

On close examination of the pleadings to the Claimant's claim it is clear that for the court to grant the relief sought it must first determine and declare whether or not the actions and or decisions of the Defendants were within the powers conferred on them by the Police Act Cap 105. Indeed as is submitted by counsel in defence that to grant the relief sought the court must quash the decision to forfeit portions of the Claimant's salaries. The power to do so must be beyond the jurisdiction of this court (Enock v David [2003] VUCA 19; Civil Appeal Case No. 25 of 2003 at pages 4 - 5). Further to this the Magistrate's Court is statute barred from entertaining a claim such as the present case. Section 2 of the Magistrate's Court (Civil Jurisdiction) Act Cap 130 stipulates:

A Magistrate' court shall not have jurisdiction to try a suit concerning ... interdiction ...

The question now is whether to refer the matter to the Supreme Court or grant the relief sought by the Defendants. It would be in the interest of justice to refer the matter to the Supreme Court for determination of the substantive issue; however, defence counsel submits that the Claimant is time barred. To file for judicial review the Claimant would have had to file a claim within 6 months from the date the decision and or action was taken. Obviously the Claimant is time barred which makes it impossible to refer the matter to the Supreme Court. In circumstances such as this a party may seek extension of time under the Limitation Act.

Accordingly this action is struck out for lack of jurisdiction. Costs are awarded to the Defendants to be fixed by the court failing agreement.

Dated at Port Vila this 16^th August 2007

BY THE COURT

Steve R Bani
Magistrate