Timothy v Matevulu College [2002] VUSC 64; SC 005-02 (8 March 2002)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No.5 of 2002

BETWEEN:

MARIE LAPISAE TIMOTHY

First Applicant

AND:

JOE TIMOTHY AND ISAIAH ISAAC

Second Applicants

AND:

MATEVULU COLLEGE

First Respondent

AND:

MATEVULU COLLEGE COUNCIL

Second Respondent

AND:

MINISTRY OF EDUCATION

Third Respondent

Coram: Before Mr Justice Oliver A. Saksak
Ms Cynthia Thomas – Clerk

Counsel: Mr Daniel Yawha of Council for the First Applicant
Mr Bill B. Tamata for the First and Second Respondents
No Appearance for or by the Second Applicants
No Appearance for or by the Third Respondent

Date of Hearing and of Decision (Oral): 22nd February, 2002.

JUDGMENT

This judgment provides the reasons for my decision orally delivered on 22^nd February, 2002. I dismissed the Applicant’s Notice of Motion with costs to the Respondents.

The Applicant is the lawful wife of Joe Timothy. She is engaged by the Teaching Service Commission as a teacher. Immediately prior to making this Application the Applicant was teaching at the Matevulu College as Geography and English teacher. Her husband, Joe Timothy was also a teacher at the Matevulu College but he was suspended by the Minister of Education in 2001. He appealed against that suspension and his appeal is still awaiting a decision of the Teaching Service Commission (the TSC). In the meantime Joe Timothy and his colleague Isaiah Isaac applied to the Court seeking judicial review in proceedings No.13 of 2001. Their Application has been stayed pending the Teaching Service Commission decision on the Applicants’ appeals.

On 10^th December 2001 the First Applicant received a notice concerning her posting and transfer from Matevulu College to Vureas High School on Ambae.

By way of an Ex parte Notice of Motion the First Applicant seeks the following Orders:-

“1. An Order that this proceeding be consolidated with proceedings in Civil Case No.13 of 2001 (Administrative Law Jurisdiction)

2. An Order that the decision of the Third Respondent for the First Applicant’s transfer from Matevulu College to Vureas this year be quashed pending the second Applicants’ application for judicial review be determined by the Teaching Service Commission.
   
3. An Order for the Third Respondent to variate posting for the First Applicant to remain at Matevulu College this year 2002.
   

4. Costs.

5. Any other orders as the Court deems fit.”

The following grounds were advanced by Counsel in support of the Application –

“1. The First Applicant is a Senior Geography and English teacher at Matevulu College. She is also the legal wife of Mr Joe Timothy, the Second Applicant who is a former senior science teacher at Matevulu College.

2. It is a Policy of Third Respondent that married couples who are both employed by the Commission shall be transferred together to the same school.
   
3. They have two children of infant age.
   
4. The Second Applicant (Mr Joe) has a pending Judicial review case against all the respondents in Civil Case No.13 of 2001, which is one of his prayers he is seeking restraining from the Respondents to transfer him from Matevulu College.
   
5. And by the said prayers and others which the Second Applicant is seeking, his Lordship on the 13^th day of August, 2001 ordered the Second Applicants under Order 3 of its orders that the Second Applicants’ application for Judicial review be stayed pending final determination of the Teaching Service Commission.
   
6. That means the status quo of the Second Applicant (Mr Joe) as a resident and teacher in the College premises still stands and inevitably his family, particularly his legal wife, the First Applicant.
   
7. That the Respondents do not have any legal authority to treat the Second Applicant as a trespasser, nor to evict or transfer him, which inevitably includes the First Applicant from the College as their right is subject to his Lordships decision.
   
8. It is both moral and commonsense that transferring the First Applicant from Matevulu College to Vureas is an implied act that the Respondents have acted so with a guise to also get rid of Mr Joe (Second Applicant) from the College.
   
9. The Third Respondents action is seen as evading the normal cause of justice to take place before this Court by passing the normal judicial process and to determine the fade of the Second Applicant (Mr Joe Timothy) and his family by transferring the First Respondent (sic) from the college prior to any Lordships decision on the matter.
   
10. In whole, the Third Respondents Action to transfer the First Applicant which by commonsense also means the Second Applicant is unfair and is (to be expound on) contrary to and or a bypass of the Judicial procedure and is in contempt of his Lordships order dated 13^th of August, 2001.
    
11. In the alternative, there is really no basis for transferring the First Applicant because she does not possess a “black record” at Matevulu College, a factor which can warrant her transfer.
    
12. She did not even request for her transfer to Vureas, which is another factor for transfer.
    
13. And she has been at the college for only a year of teaching and the normal policy of transfer applies if one has a “black record” or one has been in the school for more than 2 years or if one requested for transfer. However, she does not fall within any of these categories.
    
14. There are however, other teachers who have been at the college for more than 7 years and are still not transfer this year.
    

15. Any other grounds to be advanced by the council”.

Mr Tamwata applied by Summons (General Form) dated 20^th February 2002 seeking orders that the First Applicant’s Ex parte Notice of Motion be struck off with costs on the following grounds:-

“(1) The Ex parte Notice of Motion is irregular.

(2) There is no Cause of Action in Civil Case No.5 of 2002.

(3) The issues in Civil Case No.5 of 2002 and Civil Case No.13 of 2001 are different. Civil Case No.5 of 2002 is a complaint against transfer whilst Civil Case No.13 of 2001 concerns suspension by the Minister concerned.

(4) The Case No.5 of 2002 cannot be consolidated with Civil Case No.13 of 2001 as there is no cause of action.”

Details of Counsel’s argument are contained in the Skeleton Argument dated 20^th February, 2002.

Having considered those arguments and submissions in the light of the facts of the case and the affidavit evidence of the First Applicant, I found as follows:-

(1) In relation to the Ex parte Notice of Motion -

In his submission that the Ex parte Notice of Motion was irregular in that it had no legal basis in the Rules, Mr Tamwata did not refer me to any specific provisions of the Rules. Order 55 of the High Court Rules 1964 provides for motions and other applications. Rule 3 allows for ex parte motions but requires that previous notice be served on parties. For this reason the submission that the First Applicant’s Ex parte Motion was irregular must be rejected.

(2) In relation to consolidation of Civil Case No.5 of 2002 with Civil Case No.13 of 2001 -

I accept Mr Tamwata’s submissions that in order for a consolidation to be effected there first has to be a cause of Action. A cause of action must, according to Order No.2 of the Rules be commenced by a Writ of Summons. The First Applicant has not filed a writ of summons. Civil Case No.5 of 2002 is merely an Application for consolidation but there is no action to consolidate with Civil Case No.13 of 2001. In this regard therefore the Application must be irregular.

The second limb of this issue concerns the subject – matters in Civil Case No.5 of 2002 and Civil Case No.13 of 2001. In order for consolidation to be effected the subject matter ought to be identical. Here even if there was a cause of action the Court could not order a consolidation unless the issues or subject-matters involved were the same. In Civil Case No.5 of 2002 the First Applicant is aggrieved by a decision to have her transferred to another school. In Civil Case No.13 of 2001 the Applicants therein challenged the Minister’s suspension of them as teachers through appeal to the Teaching Service Commission. Clearly those are different issues. It appears from the argument and submissions of Counsel for the First Applicant that because the First Applicant is the Second Applicant’s wife and that because Mr Joe Timothy is the Applicant in Civil Case No.13 of 2001, that their cases should be consolidated. That cannot be a valid and sufficient reason for consolidation and that argument must be rejected.

(3) In relation to the First Applicant’s prayer for Orders quashing the Third Respondent’s decision to transfer the First Applicant pending the Second Applicant’s application for judicial review to be determined by the Teaching Service Commission -

Firstly this must be a misstatement. What is now pending before the Teaching Service Commission are appeals and not applications for judicial review Judicial review applications are matters for the Courts.

Secondly this Court cannot quash the decision of the Third Respondent unless it has been brought forward and reviewed by the Court. And that has to come as a cause of action. I have already held that the First Applicant has no cause of action. And that decision cannot be quashed simply on a motion. There has to be a proper application for judicial review and that cannot be done unless leave is first obtained by the First Applicant. None of these procedures have been followed by the First Applicant.

(4) In relation to the First Applicant’s prayer for an Order varying the Third Respondent’s posting of her to another school –

For the same reasons given for the foregoing issue, this Order cannot be granted.

For these reasons I ordered that the First Applicant’s Ex parte Notice of Motion be dismissed. I also ordered that the First Applicant pays the First and Second Respondent’s costs of and incidental to the hearing.

PUBLISHED at Luganville this 8th day of March, 2002.

BY THE COURT

OLIVER A. SAKSAK

Judge