ABIE JACK
EMPO
First Respondent
AND:
MINISTER OF
INTERNAL AFFAIRS
Second Respondent
AND:
GOVERNMENT OF THE
REPUBLIC OF VANUATU
Third Respondent
Coram: Chief Justice
Vincent Lunabek
Counsels George
Boar for the Applicant
Ms Viran Molisa for
the Respondents
JUDGMENT
1. &nnsp;&&nsp;;&nspp;&nssp;&nsp; p;
s The appe appointment of Abie Jack Marikempo as acting Commissioner of
Police on 28 June 2001 by His Excellenc Pres Johneth Bani
is
null and void ab o.
2. p; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;&
span>The Appl Applicant’cant’s purported interdiction from duty by the Minister
of
Internal Affairs in a letter dated 28th December, 2001 is null
voidan>
3. &nbbsp; &nbbsp; &nbp; &nbp; &nb p;
/span>Costs and incd incidental to this applicationan>
1">
The Applicant filed
a sworn affidavit of 18 February 2002 in s in support of the Summons.
The facts are
substantially agreed between the parties as set out in the statement of
agreed facts dated 9 April 2002.
The partireed by counsel
that the appointment of the First Respondent as Acting Police Commissmmissioner
by the President
of the Republic of Vanuatu on 6 June 2001 was not advised
by the Police Service Commission as required by Section 10(1) of
the Police
Act [CAP.105]. It follows then that the appointment of the First Respondent
was invalid as both parties agreed to this effect.
The applicant complained that
by a letter dated 21 Decembe1, the Minister responsiblesible for Police
interdicted the
Applicant from duty on the basis of a recommendation made by
the First Respondent as Acting Police Commissioner on 1st October
2001. Because the appointment of the First Respondent was invalid, the
Applicant says all decisions/acts made
by the First Respondent were also
invalid and these include the recommendation of the First Respondent dated 1st
October 2001 to the Minister responsible for Police to interdict the
Applicant from duty.
I have heard and considered the submissions and arguments of both counsels as to whether ther or not, the First
Respondent
was a de facto officer and whether his actions or decisions are
valid and/or lawful. In this case, I am of the view that the
First
Respondent is a de facto officer. The Applicant’s arguments and submissions
that because the appointment of the
First Respondent was invalid, it follows
that all decisions and actions taken by the First Respondent are
consequently
invalid and/or unlawful, are rejected. The Respondent’s
arguments and submissions are accepted as translating the general and
correct approach and law to follow and apply in the situations such as the
present case.
The First Respondent
is a de facto officer because even though his appointmeintment did not follow the
process set down
in Section 10(1) of the Police Act [CAP.105], to hold that
his acts or decisions in that office were consequently also invalid would
lead to “consequences
of the most destructive kind” (see reference to
Scudding v. Larant [1851] EngR 699; (1815) 3 HLC 418 at 447 in Applicant’s submission).
As the case is about the Commissioner of Police position, these consequences
could
include uncertainty and unrest within the Vanuatu Police Force and the
public as to the validity of all the actions taken and
acts made by the
First Respondent in the course of his work as Acting Police Commissioner
since he took office on 28
June 2001. Furthermore, the status of members of
the Force and the public who have had their interests affected by the
apparently official acts of the First Respondent who would have been
purporting to exercise official powers would now no
longer be certain.
Lastly, the First Respondent is
de facto officer because he carried out his normal duties aies as Acting Police
Commissioner
in the honest belief that his appointment was valid, and that
there was general acceptance of his appointment. In support of
the latter
point, there was general acceptance of the appointment because it was not
challenged and brought to the attention
of the Court to determine the First
Respondent’s lawful position until 19 February 2002 when the Applicant filed
his
Originating Summons in this case with the Court.
The Respondents rely on the
case of re:urable Andrew Nori, Member mber of Parliament for West Area
Constituency and Others, Civil Case No.74 of 1989, SILR
[1988-89] 99-112 in support of the submissions made in the paragraph
above (see point 5 of the headnote to the case, at page 100). This case
is
also relied upon for the submission that “the acceptance as valid of
acts by a person holding de facto… office is restricted to those acts
occurring before that
person’s lawful position is determined.” (see
point 7 of the headnote to the case, at page 100). I accept the case of
Hon. Andrew Nori, Member of Parliament for West Area Constituency and
Others (Civil Case No. 74 of 1989) as a persuasive authority and I
adopt as my own and apply in this case.
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In the present case, up un the date of the determination of the First Respondent’dent’s lawful position
(that is, the date
when the Court gives a decision in this Civil Case No.30
of 2002) the First Respondent’s actions must be accepted as valid
due to his
being a de facto officer. From the date of the determination by the Court,
any acts he purports to do as Acting
Commissioner of Police will not be
valid. This is unless, of course, the First Respondent’s appointment is
sooner revoked,
as provided for by Section 26(3) of the Interpretation Act
[CAP.132].