Lester v Matevulu College [2000] VUSC 37; Civil Case 008 of 2000 (21 July 2000)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No.8 of 2000

INMATTER of Twenty Expulsion Letters

Dated 15^th March, 2000

AND

IN THE MATTER of Article 5cle 5 of the Constitution

of the Republic of Vanuatu

BETWEEN:

ROAN LESTER AND 18 OTHERS

Plaintiffs

AND:

class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> MATEVULLEGE

First Defendant

AND:

class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> MATEVULU SCHOOL COUNCIL

Second Defendant

class="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Coram: Mr Justice Oliver A. Saksak

Ms Cynthia Thomas - Clerk

Mr Salingtephens for the Plaintiffs

Mr Bill Bani Tangwata for the Defendants

ORAGEMENT

There will be judgement in favour of the Plaintiffs.

On the evidence adduced by both Parties before the Court and after considering all submissions by Counsel, I find as follows:-

(1) nbsp; p; &nbp; &nbssp; pan>That thet the PrincPrincipal had exercised his discretion properly in the circumstances on 28^th February 2000 by suspending the 20 ntiffpan><

lass="MsoNoMsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> (2)  p;&nbbsp;&nsp; &nsp;  p; &nnsp;& sp; Than>Those suspensions were proper under the school r

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(3) &nbbsp; &nsp; &nbbp;&nnbp;& &nb Hoan>However ever when the Principal took the decito send the 20 Plaintiffs out of the school, he was in indeed creating a difficulty flty for the Plaintiffs so that they would not have an opportunity of being present at the Council Meeting. It was possible to arrange an extraordinary or urgent meeting on 28^th February. It was possible to have kept all Plaintiffs at the school compound with the assistance of the Police.

(4) &nbp; &nnbp;&&nbp;;&nbpp; &nsp; &nbsp The appointmeintments of the members of the Council have not been proven and the validity of the decisions of their meeting of 29^th February is still in qun. p class="MsoNormaNormal" stl" style="yle="text-align: justify; margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">

(5) &nnsp;&&nsp;;&nspp;&nssp;&nsp; WhenCoun il toil took their decision to expel the 20 Plaintiffs on 29^th February 2000 without first giving them the right to be present and be heard was a denial of their rio natjustice. That beit being song so, their decision of 29^th February, 2000 to expel the Plaintiffs was therefore null and void and of no effect.

lass="MsoNoMsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> (6) nbsp; p;&nbbp; &nbp; &nbssp;

(7)  p; &nsp; &nbbsp; th

p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> I have reached these findings in the lof the fundamental rights of the individual provided under nder Article 5 (1) of the Constitution, the provisions of the Administration of Schools Act (CAP.121) and to the provision of the School Rules.

"The Republic of Vanuatu cognises, that subject to any restrictions imposed by law olaw on non-citizens, all persons are entitled to the following fundamental rights and freedoms of the individual without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex but subject to respect for the rights and freedoms of others and to the legitimate public interest in the defence, safety, public order, welfare and health-

(a)  p; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& lpan>life;

(b)(b) &nbbsp; &nbbsp; &nbp; &nbp; …/span>

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(c) &nnbsp;; &nsp; &nsp; &&nbp;; &n sp; ….an>….….;

(d)  p; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& ppan>protection of the law;

(e) &nbssp; &nsp; &nbbp;&nnbsp; &nb ……an>……..;

(f) & p;&nssp;&nsp; &nsp; ;&nbpp; &nnsp;&&nsp; ……..;

(g) &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &&nsp;;&nsp; ……..;

(hn style="font:7.0pt "Tuot;Times New Roman""> &nbbsp;& &nsp; &nsp; &nnbp;& /span>..……;

(pt">(i)  p;&nssp;  p; &nbp; &nbp; ; p ./……;

1"> <(j) &nnsp;&&nsp;;&nspp;&nssp;&nsp;

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(k) &nbbsp;& &nsp; &nsp; &nnbp;& /span>equal tral treatmenatment under the law or administrative action, ……." ass="rmal"e="teign: fy; text-indent1pt; n-left: 36.0pt; margimargin-topn-top: 1; : 1; margimargin-botn-bottom: tom: 1"> 1"> <(emphasis, mine)

p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The Plaintiffs are all students. Their lives tomorrow depends on what ns to them at school today. Counsel for the Defendants submit that the Court should not interfere as the subject-matter of the case involved policy of the school and its rules. And he relied on the PNG case of Premdas -v- Independent State of PNG [1979] PNGLR 329. I disagree. This matter concerns life and death of the Plaintiffs. As such, it is an appropriate case where natural justice should be observed and applied. And I accordingly rule.

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In the ase, Mr Premdas could still make a living in another country. Here the Plaintiffs ares are Ni-Vanuatu persons. To curtail their education without giving them the opportunity to be present at the hearing and answering the allegations made against them was a denial of their fundamental rights and freedom to life.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> And faced with their situation, the Plafs had every right to come to this court to seek redress. ss. Article 6(1) of the Constitution states -

"Anyone who considers that any of the rights guaranteed to him under the Constitution has been, is being or is likely to be infringed may, independently of any other possible legal remedy, apply to the Supreme Court to enforce that right.:

(emphasis, mine).

Counsel for the Defendants submits that the Plaintiffs' case was not a case seeking jud review. It did not hnot have to be although it was another possible legal remedy. But they have come independently relying on the Constitution as their basis. And they have applied by way of an originating summons seeking declarations under Order 58 of the High Court Rules 1964. It states -

"1. &nnbsp;;&nbssp; bsp; ; ; Any person claiming to be interested under a deed, will, or other written instrumeu> for the determination of any question of c of constronstruction arising under the instrument, and for declaration of the rights of the persons interested. (emphasis, mine)

Paragraph 9 of the affidaf Mr Amon Gwero refers to an Acceptance Letter which states -

"I accept that the Principa will look after my child according to the standards and and rules set down by the College Council. These allow for suspension or expulsion if the student fails to follow those standards. If this happens, no refunds or part of a term's fee will be made."

This, in my view is an Agreement. It binds the parents and their child with the school. They are directly affected by the suspensions and expulsions and as such they have a right as interested persons under the deed or written instrument to apply as they have done to seek the declarations they are seeking.

Counsel for the Defenda quoted Lord Denning in Reg. v. Gaming Board for Great Britain, Ex part parte Benaim and Khaida [1970] 2Q.B. 864 as follows:-

"It is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject matter." (emphasis, added)

Indeed, everything depends on the subject-matter. Here, the subject-r is such that it is fittinitting that natural justice must be applied.

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Now as to the declarations and orders soug/span>

(a) &nbbsp; &nbbsp; &nbp; &nbp; Tclaration soun sought in paragraph 1 is not necessaspan> ass="rmal"e="maleft:pt; margin-top: 1; margin-bottobottom: 1"m: 1"> >

(b) &nsp; &&nbp;;&nbpp; &nnsp; &nbp; s eclaration soun sought in the alternative in paragraph 2 is allowed as follows:-

The Plaintiffs are registered students not able to be expelled from their studies otherother than by giving of reasonable notice and/or allowed sufficient opportunity to be afforded a fair hearings by the Defendant.

(c) &nnsp;&&nsp;;&nspp;&nssp;&nsp; The ratian soun sought in paragraph 3 is refused.

(d) &nnsp;&&nsp;;&nspp;&nssp;&nsp; The sourht inht in paragraph 4 is allowed in respect of any plaintiff who may be reinstateer a r disnary ng han nducted by the Council.

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(e) &nnsp;&&nsp;;&nspp;&nssp;&nsp; The order njuninjunction sought in paragraph 5 is refused.

&nbsp

Further the Court Orders as follows:-

(1) &nbp; &nnbp;&&nbp;;&nbpp; &nsp; &nbsp That this mats matter be referred back to the Council to have a proper disciplinary hearing. This meeting will be held an as ble nss than 14 days fro datehis order. The meet meeting wing will bill be hele held notd not in the college but at a suitable venue in town to enable all the Plaintiffs to attend the hearing. All Plaintiffs must be present and they must each be asked to answer the allegations made against them. Opportunity for appeals must be allowed with clear instructions that appeals must be made individually giving sufficient reasons and within a given period of time. Appeals must be considered promptly and properly by the Council and decisions of the Council must be conveyed to any appellant promptly. Appellants must be present during hearings of their appeals.

(2)ot;"> &nnsp;&&nsp;;&nspp; s That any of the Plaintiffs whose case is not substantiated be reinstated forthwith and be provided every assistance by the Defts to redt semester's studies.

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(3) &nbbsp; &nsp; &nbbp;&nnbp;& &nb Than>That thet the Defendants pay the Plaintiffs' of this application.

DAT Luganville, this 21^st day of July, 2000.

BY THE COURT

p class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> OLIVER A. SAKSAK

Judge