In re the Constitution, Chan v Jimmy No 1 [1997] VUSC 26; Civil Case 096 of 1997 (11 August 1997)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

CIVIL CASE No. 96 OF 1997

p ALIGN="CENTER">IER">IN THE MATTER
OF THE CONSTITUTION OF THE REPUBLIC OF VANUATU

AND:

IN THE MATTER
OF THE NATIONAL PROVIDENT FUND ACT [CAP. 189]

AND:

IN THE MATTER
of an Application by PETER CHAN and PAUL FRED
for declaratory relief regarding purported termination by the
HON. WILLIE JIMMY, Minister of Finance.

BETWEEN:

PETER CHAN and PAUL FRED
Joint Petitioners and Applicants

AND:

HON. WILLIE JIMMY,
Minister of Finance
First Respondent

AND:

GOVERNMENT OF THE REPUBLIC OF VANUATU
represented by the Attorney General
Second Respondent

Counsel: Mr Mark HURLEY for the Joint Petitioners and Applicants.
Mr Jack for the Respondents.

JUDGMENT

This Judg Judgment is given in relation to a preliminary matter applied for by Counsel for the Joint Petitioners and Applicants. (The Petitioners).

Mr Hurley tendered as Exhibit a letter issued out of the Attorney General’s Chambers dated 4th August 1997. I set out in full the text of the letter:

"GOVERNMENT OF THE REPUBLIC OF VANUATU
ATTORNEY GENERAL’S CHAMBERS

4th August, 1997

Mrs Aiong
Acting General Manager
National Provident Fund
PORT VILA

Dear Mrs Aiong,

Re: Paul Fred and Peter Chan - VNPF Board Members.

The above letter enclosed the Notice in the following terms:

1. As you understand, there are 2 separate Court cases involving the VNPF Board members. One is Civil Case No. 101 of 1997 involving Dinh Van Than -v- the Government and the other is Civil Case No. 96 of 1997 involving member Paul Fred and Peter Chan -v- the Government.

2. On the hearing of an application on behalf of the Government on 23rd July 1997 the Court had expressed a view that the termination instruments may have not been properly made in respect of the above named members. In view of this defect, the Court then ordered that the above members remain in the Board until further decision of the Court.

3. The Minister has however instructed that however defective the termination instruments may have been formed, his intention is clear that both members have been terminated as at 19th June, 1997.

4. In light of these instructions, the Minister has re-issued termination instruments dated 25th July, 1997 which instrument must now replace the original termination instruments dated 19th June, 1997. These subsequent termination instruments are intended to be in line with the Court’s view as to what a proper termination instrument should be like.

5. Although the Minister has re-issued the termination, the position still remains the same; that is the Court Orders preventing the members from termination are still valid. We may be applying to set aside those orders but until that is done the position is that they continue to be members of the Board as ordered by the Court until further Court Order.

6. Please serve these documents on the two concerned members.

Yours faithfully

Jack I. Kilu
Principal Legal Officer
(for) Attorney General

cc: Minister of Finance

Encl

The above letter had enclosed two Notices in the following terms:

"REPUBLIC OF VANUATU

VANUATU NATIONAL PROVIDENT FUND ACT [CAP 189]

REMOVAL

IN EXERCISE of my general powers under the National Provident Fund Act [ CAP 189] and IN EXERCISE of the powers conferred upon me by Section 21 of the Interpretation Act [CAP 132] in conjunction with section 3 (1) and (2) of the National Provident Fund Act [CAP 189] I, WILLIE JIMMY, Minister of Finance, hereby REMOVE

PETER CHAN

from office as a member of the Board of Directors of the Vanuatu National Provident Fund. This removal shall be deemed to have come into force on 19th June, 1997.

This removal supersedes and replaces the previous termination instrument dated 19th June, 1997 under my hand in relation to Peter Chan.

MADE at Port Vila this 25th day of July, 1997.

Signed: Honourable Barak T. Sope
(for) WILLIE JIMMY
Minister of Finance"

Further I have noticed two other documents headed as "NOTICE OF VACANCY" which is set out in the following terms:

"REPUBLIC OF VANUATU

VANUATU NATIONAL PROVIDENT FUND ACT [CAP 189]

NOTICE OF VACANCY

IN EXERCISE of the powers conferred upon me by Section 3(3)(e) of the Vanuatu National Provident Fund Act [CAP 189], I, WILLIE JIMMY, Minister of Finance, hereby declare the office of-

PAUL FRED

as a member of the Board of Directors of the Vanuatu National Provident Fund VACANT. This Notice shall be deemed to have come into force on 19th June, 1997.

MADE at Port Vila this 25th day of July, 1997.

signed: Hon. Barak T. Sope
(for) WILLIE JIMMY
Minister of Finance.

A similar Notice was in respect of Peter Chan.

Mr Hurley submitted that the issue of Notices amounts to contempt of Court order dated 23rd July, 1997. The relevant order is contained in paragraph 2 which reads:

"2. Pursuant to the Amended Summons and Amended Petition in particular prayers no. 5 of the Joint Petitioners’ prayers in their Amended Petition, the First and Second Respondents, their servants and/or agents be and are hereby injuncted from taking any steps to replace the Petitioners and making any further appointments of members of the Board of the VNPF otherwise than in accordance with section 3(3) of the VNPF Act pending the hearing of this matter or further order".

Mr Hurley therefore submitted that the First Respondent had breached the above Order.

Mr Kilu in response argued that the issue of notices were not in breach of the Court order. They were merely corrections. Mr Kilu referred me to paragraphs 2 and 3 of the letter of 4th August. Mr Kilu referred to the term used in the order is "replace" as distinct from the term "remove" used in the Removal Notices. That being so he submitted that there was no breach of the Court Orders.

I am unable to agree with Mr Kilu. On the evidence before me I find that there are differences. The first instruments were Termination Notices. The instruments were dated 19th June, 1997 which the First Respondent says he is rectifying. There were no Vacancy Notices then. The current instruments are headed "Removal" and they are issued along with other instruments headed "Notice of Vacancy".

The Notices of Vacancy in my view clearly implies the ultimate intention of the First Respondent. The ultimate intention as I hold it to be is replacement. That falls within the term of the Court Order and therefore I hold that it amounts to a contempt of Court. The Court concludes that Honourable Minister Willie Jimmy, the First Respondent and Honourable Barak Sope are in contempt of this Honourable Court and will be called upon to show cause at a date to be fixed.

Further it is ordered that the injunctions dated 23rd of July, 1997 remain in full force.

Further, that the costs of this application be reserved.

DATED at Port Vila this 11th Day of August 1997.

BY THE COURT

OLIVER A. SAKSAK
Judge