Edmanley v Chairman and Members of the Police Service Commission [2005] VUSC 159; Civil Case 218 of 2005 (7 December 2005)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 218 of 2005

BETWEEN:

LT COLONEL ARTHUR CAULTON EDMANLEY
Claimant

AND:

THE CHAIRMAN & MEMBERS OF
THE POLICE SERVICE COMMISSION
First Defendant

AND:

HIS EXCELLENCY KALKOT MATASKELEKELE
Second Defendant

AND:

THE ATTORNEY GENERAL
Third Defendant

Coram: Justice P. I. Treston

Mr. Warsal for Claimant
Mr. Aru for Defendants

Hearing Date: 7 December 2005
Judgment Date: 7 December 2005

JUDGMENT

ORDER

On 7 December 2005, the Court made the following orders:-

1. The Second and Third Defendants are removed as parties.
   
2. The Claimant does not have an arguable case against the First Defendant and the Claimant is not directly affected by the decision (Reasons given in writing).
   
3. The Court thus declines to hear the claim and it is struck out.
   
4. The Claimant must pay VT5,000 costs to each of the Defendants (a total of VT15,000) by 3pm on 21 December 2005.
   

I now give my reasons.

CLAIM

On 25 November 2005, the Claimant filed a claim for Judicial Review of a decision made by the First Defendant, the Police Service Commission, allegedly terminating the Claimant's appointment as Acting Commissioner of Police in the form of a letter dated 23 November 2005.

The full text of the letter is as follows: -

"POLICE SERVICE COMMISSION	COMMISSION DE POLICE
REPUBLIC OF VANUATU	RÉPUBLIQUE DE VANUATU
P.O. Box 486 PORT VILA - VANUATU	BP 486 PORT VILA - VANUATU
Telephone:[phone] Fax [phone]	Telephone:[phone] Fax [phone]

_______________________________________________________________

Our ref: PSC/LB/1010/05

Date: 23/11/05

Lt. Col. Arthur Caulton Edmanley,

Acting Commissioner of Police,

Office of the Commissioner of Police

VANSEC House,

PMB 9014,

Port Vila.

Dear Lt. Col. Edmanley,

Subject: Review of your Acting Appointment in the position of Commissioner of Police

This Commissioner, at its meeting 05/05 of 22^nd November, 2005 reviewed your acting appointment as Commissioner of Police.

Decision reached is to allow another commissioned officer to be appointed to occupy the post on acting basis pending the advertisement of the position domestically and internationally in compliance with Article 57 (2) and 90 (3) of the Constitution of the Republic of Vanuatu.

You have the opportunity to apply for the position during the timeframe as reached by the Commission to be considered for the post. The Chair, on behalf of the Commission, wishes to thank you for your leadership in the development of the Force during your term as Acting Commissioner of Police.

Your new posting would be in accordance with Section 23 (2) of Cap. 105. Your handling over will be effective as of the date of His Excellency, the President's instrument of Termination in accordance with Section 10(1) of Cap. 105.

Thank you.

Yours sincerely,

(Signed & stamped)

Leonard Bule

Chairman"

The Claimant alleged that the decision should be quashed as it purported to be a notice of termination of his appointment and that the decision was a sanction because no grievances against the Claimant were alleged and that the Claimant had no opportunity to answer any question and that the only person who could revoke his appointment was the President.

The Claimant also joined the President and the Attorney General as parties to the claim.

The Claimant also filed an urgent application that his purported termination to be put on "halt" and not be dealt with in any way pending the determination of the Judicial Review action because the letter had been provided to the media to destabilize the VPF and to mislead the public. I declined to hear that application as I was of the view that that did not fulfil the criteria for urgency as set out in the Civil Procedure Rules No. 49 of 2002 ("the Rules").

The Defendants filed a defence through the solicitor general, denying that the decision terminated the Claimant's position and contending that the Claimant was only occupying an acting position and that the President was only acting on the advice of the Police Service Commission and that the posting of the Claimant could be done only by the Commissioner.

LAW AS TO JUDICIAL REVIEW CLAIMS

Rule 17.8 of the Rules provides as follows: -

"Court to be satisfied of claimant's case

17.8

(1) As soon as practicable after the defence has been filed and served, the judge must call a conference.

(2) At the conference, the judge must consider the matters in subrule (3).

(3) The judge will not hear the claim unless he or she is satisfied that:

• (a) the claimant has an arguable case; and
  
• (b) the claimant is directly affected by the enactment or decision; and
  
• (c) there has been no undue delay in making the claim; and
  
• (d) there is no other remedy that resolves that matter fully and directly.
  

(4) To be satisfied, the judge may at the conference:

• (a) consider the papers filed in the proceeding; and
  
• (b) hear argument from the parties.
  

(5) If the judge is not satisfied about the matters in subrule (3), the judge must decline to hear the claim and strike it out."

SUBMISSIONS AND RULINGS AT CONFERENCE

At the conference, I heard submissions from the parties and I ordered that the Second and Third Defendants must be removed from the claim as parties.

The Second Defendant, the President of the Republic, had not made any decision concerning the termination of the Claimant's position and thus was not a person who had made a decision in terms of Rule 17.4 (2) (b).

Furthermore, the claim for Judicial Review was a claim for a quashing order in terms of Rule 17.4 (1) (b) and thus the Attorney General should not have been named as Defendant. The Attorney General must only be named where a claim is for a declaration about an enactment.

In Rule 17.4 provides as follows: -

"Claim for judicial review

17.4

(1) A person claiming judicial review may file a claim claiming:

(a) a declaration about an enactment; or

(b) a mandatory order, a prohibiting order or a quashing order about a decision.

(2) The claim must name as defendant:

• (a) for a declaration, the Attorney General; and
  
• (b) for an order about a decision, the person who made or should have made the decision.
  

(3) The claim must:

• (a) set out the grounds for making the claim; and
  
• (b) have with it a sworn statement in support of the claim; and
  
• (c) be in Form 34"
  

Having heard submissions from counsel, in terms of Rule 17.8 (3), I was not satisfied that the Claimant had an arguable case. The letter of 23 November 2005 although couched in somewhat unfortunate and direct terms did not terminate the Claimant's appointment as Acting Commissioner of Police. It was always subject to an instrument of termination being signed by the President under section 10 (1) of the Police Act [CAP. 105] which provides: -

"The Commissioner of Police shall be appointed by the President acting on the advice of the Commission, for such period as the Commissioner shall advise."

It was common ground that under the provisions of section 21 of the Interpretation Act [CAP. 132], it was the President that had the right of appointment of the Commissioner and an acting Commissioner under section 26 (1) of the Interpretation Act and it was the President who must have the right of termination.

Those sections provides as follows: -

"POWER TO APPOINT INCLUDES POWER TO REMOVE

21. Where an Act or Parliament confers power on any authority to make any appointment that authority shall also have power (subject to any limitations or qualifications which affect the power of appointment) to remove, suspend, reappoint or reinstate any person appointed in the exercise of the power."
    

"POWER TO APPOINT PERSONS TO ACT IN OFFICES

26. (1) Where an Act of Parliament confers powers to make an appointment to an office and in respect of that office -

(a) there is a vacancy; or

(b) the holder of the office is suspended; or

(c) the holder of the office is -

• (i) on leave of absence;
  
• (ii) absent from the country;
  
• (iii) out of speedy and effective communication;
  
• (iv) otherwise unable to perform or is to readily available to perform the duties of his office,
  

the power to appoint includes power, subject to subsection (2) to appoint another person to act in that office.

(2) The power provided for by subsection (1) is exercisable only subject to any conditions to which the exercisable of the original power was or would be subject.

(3) An acting appointment may be made in anticipation of all or any of the circumstances specified in subsection (1) and, unless it expires or is revoked the acting appointment shall continue to operate from time to time in accordance with its terms.

(4) In subsection (1) "office" includes position."

Coincidentally, in a press release on Monday 5 December 2005, the President confirmed that he had not taken any decision over the review of the appointment of the Claimant and that the Claimant still held the post of Acting Commissioner of Police. The President said that it would not be fair if he considered the advice of the Commission to review the post without the Commission giving a fair opportunity to the Claimant to respond to reasons and allegations made against him. The President went on to say that he would need to be fully informed of the issue including the Claimant's defence before he would make a decision based on the advice of the Police Service Commission. Thus the "advice" in the letter of 23 November 2005 has not been acted upon. It also seems to me that the President is giving the Claimant the relief he has sought in this claim.

In a sworn statement filed late on the afternoon before the conference the Claimant asked the Court, as the "right institution" to do so, to make orders about his present status to re-establish confidence and to avoid further confusion. First of all such an application needed to be made separately and not as part of a sworn statement and second, with the greatest respect to the Claimant, he has misconstrued the role of the Court which is to consider applications and rule upon them according to law. The Court's role is not to make public pronouncements of the kind that was sought. In any event it seems to me that the President's press conference achieved the result that the Claimant sought.

CONCLUSION

In summary, I found that the claim for Judicial Review was misconceived and premature because the Commission's letter of 3 November 2005 did not terminate the Claimant's acting appointment as Commissioner of Police as alleged in the application and thus the Claimant did not have an arguable case, nor was he directly affected by the decision because his appointment continues.

It was for those reasons that I was not satisfied that I should hear the claim and I declined to do so and struck it out, making the orders for costs that are detailed above.

Dated AT PORT VILA on 7 December 2005

BY THE COURT

P. I. TRESTON
Judge