Government of the Republic of Vanuatu v Entreprise SELB Pacific Ltd [1998] VUSC 21; Civil Case 062 of 1998 (19 June 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

CIVIL CASE No. 62 OF 1998

BETWEEN:

THE GOVERNMENT OF THE REPUBLIC OF VANUATU
C/- Attorney General, P.M.B. 048, Port-Vila, Efate,
in the Republic of Vanuatu
Appl

AND:

ENTERPRISE S.E.L.B. PACIFIC LIMITED
a duly incorporated Company having its registered office at
Socometra Building, Ellouck Road, Port-Vila
and carrying on a business as a general building and engineering contractor
First Respondent

AND:

JEAN JACQUES HARDOU
c/- Entreprise S.E.L.B. Pacific Limited,
P.O. Box 34, Port-Vila, Efate in the Republic of Vanuatu
Second Respondent

AND:

SIMONE AUDEBRAND
c/- Entreprise S.E.L.B. Limited,
P.O. Box 34, Port-Vila, Efate in the Republic of Vanuatu
Third Respondent

Coram: Acting Chief Justice Vincent Lunabek, J.

Counsel: Mr Ishmael Kalsakau for the Applicant
The Respondents are not present in Court

INTE>INTERLOCUTORY JUDGMENT

This is an Ex parte Summons brought before this Court on Friday 19 June, 1998 at 18.10 p.m. o;clock in the evening. The following Ex parte Orders were sere sought:

1. That the First and Second Respondents be restrained from leaving Efate Island until further Order of this Court;

2. The Respondents shall until further order of the Court be restrained from removing or causing to be removed any equipment, moveables and property of the Respondents from the Republic of Vanuatu;

3. The First and Second Respondents immediately deliver to the Supreme Court their respective passports until such further Order of the Court;

4. The First and Second Respondents to report daily to the Vanuatu Police at times prescribed by the Police until final determination of the substantive issues in Civil Case No. of 1998;

5. The Respondents have the liberty to apply to the Court on 48 hours notice;

6. The costs of this action be costs in the cause.

An Affidavit of one Mr Ephraim Mathias, a Senior Labour Officer of the Department of Labour of the Republic of Vanuatu, is filed in support of the Ex parte Summons.

Upon hearing Mr Ishmael Kalsakau of the Attorney General’s Chambers, on behalf of the Applicant, the Respondents are not present in Court and are not legally represented; having further read and considered the Affidavit of Mr Ephraim Mathias in support of the Ex parte Summons thereof,

IT IS HEREBY ORDERED AS FOLLOWS:

THAT the Orders sought in the Ex parte Summons are refused and thus dismissed.

NS

The Orders sought in points 1 and 2 of the Ex parte Summons are injunctive Orders. An injunction is a remedy. It is a discretionary remedy. But it is not an automatic remedy. This means that it is not because an application of an injunctive order is made that a judicial officer (Judge, Magistrate) will automatically grant the injunctive relief sought.

For an applicant to be entitled to an injunctive relief, s/he has to show to the satisfaction of the Court that s/he has a good cause, that is, a legal cause of action to substantiate the claim.

As I have repeatedly said in some of the decisions I made in this Court, a legally recognised cause of action is usually a "tort" but it also could be a "contractual action" which entitles a person, government or body corporate to sue in a Court of law. The cause of action may be a wrongful act, such as trespass; or the harm resulting from a wrongful act, as in tort of negligence, or a wrongful act on the basis of a contract (i.e. breach of contract).

The harm or wrongful act caused, must affect the legal interest that is the legal right of an Applicant entitled him to sue in a Court of law.

Mr Kalsakau submitted ex parte before me that the nature of this action is a "law enforcement action" in which proceedings are brought by the Government to restrain the Respondents from breaking the laws and as such, the Government has a statutory cause of action to enforce the breach by the Respondents of the particular laws in question namely, the employment Act, and the Vanuatu National Provident Fund Act.

There is no doubt that the Government does owe a duty to the public at large to initiate proceedings to secure that the law is not flouted. However, in this particular case, non of the statutes referred to above provided that compliance with their provisions shall be enforceable by civil proceedings by the Government for an injunction. In any event, the said statutes provides for other method of enforcement [enforcement through criminal prosecution].

In this instant case, the Applicant fails to show to the satisfaction of the Court that s/he has a statutory cause of action against the First, Second and Third Respondents to substantiate the relief sought in the Ex parte Summons as submitted.

Finally, the Applicant’s legal Counsel is further reminded about the repeated guiding principle of wisdom of Vanuatu Court of Appeal consisting in initiating proceeding Inter partes and to avoid ex parte applications in order to save time and costs for the best interests of all the parties involved in the proceedings.

DATED AT PORT-VILA, this 19 DAY of JUNE, 1998

BY THE COURT

VINCENT LUNABEK, J.
Acting Chief Justice