Dinh v Electoral Commission [2008] VUSC 67; Civil Case 131 of 2008 (13 August 2008)

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

CIVIL CASE No.131 OF 2008

BETWEEN:

GILBERT DINH
Claimant

AND:

THE ELECTORAL COMMISSION
Respondent

Mr Felix Laumae for the Claimant
Mr Dudley Aru and Mr John Stephens for the Respondent

CONFERENCE MINUTES AND INTERIM ORDERS

On 13 August 2008, the Claimant filed an urgent claim for Judicial Review against the Respondent, Electoral Commission.

The Claimant claims:

"1. A quashing Order/Certiorari to remove the Order dated 11th August 2008 made by the respondent prohibiting the Claimant from contesting the 2nd September 2008 National General Election of Vanuatu to this Honourable Court and the same be quashed.

2. A mandatory Order/Compelling Order requiring the Respondent to accept and approve the application/nomination of the Claimant to contest 2nd September 2008 National General Election of Vanuatu.

3. Costs of and incidental to this action."

The Claimant filed a sworn statement in support of the urgent claim for Judicial Review on the 13 August 2008.

Mr Felix Laumae filed a sworn statement in support of the urgency to hear the claim for Judicial Review, on same date.

The Urgent Judicial Review claim and sworn statements in support are served on the State Law Office by Mr Felix Laumae as evidenced by his sown statement of service filed on 13 August 2008 at 6.38PM o’clock.

The matter is listed as a matter of urgency for a conference on 13 August 2008 at 8.30PM. The conference starts at 9.00PM o’clock in the evening. The Solicitor General informs the Court that the Respondent has not filed a response as they have been just served with the Urgent Judicial Review claim.

However, the Solicitor General agrees that there is urgency for the Court to deal with the matter.

Mr Laumae informs the Court of the following:

The Claimant applies to be a candidate to contest the General Elections of 2 September 2008.

On 11 August 2008, the Respondent Electoral Commission made a declaration about the eligibility of candidates to contest the General Elections of 2 September 2008.

The Claimant was declared to be ineligible by the Respondent for the reason that he owed monies to the Government for outstanding land rents for his urban leases, totaling Vatu 1,850,237.

The Claimant challenges the declaration of the Respondent on the basis that the Minister of Lands as "Lessor" of the Urban Land granted the Claimant Exemptions for land rents payments for the period:

January 2001 – August 11 August 2006 and extended that period to 11 August 2011 after the VNPF civil commotion of 1998. A letter of the Honourable Maixime Carlot Korman, Minister of Lands dated 11 August 2006 was exhibited to this effect in the sworn statement of the Claimant filed on 13 August 2008.

The Claimant through his counsel, says the declaration of the Respondent is invalid.

The Solicitor General argues that the declaration by the Respondent of the Claimant’s ineligibility is a valid declaration.

The Claimant owes the Government monies through non-payment of land rents. The Minister of Lands has no power to grant another 5 year exemptions of land rents payments from 11 August 2006 to 11 August 2011. He refers the Court to Section 40(e) of the Land Leases Act.

I hear both counsel in their submissions, I am satisfied that there is a serious question for the Court to answer.

I bear in mind that this is a Judicial Review Claim under Part 17 of the Rules with specific requirements for the defence to be filed. Such a defence is yet to be filed.

I bear in mind of the urgency of this matter and the fact that the Respondent shall finalize the list of candidates to contest the General Elections of 2 September 2008 by tomorrow Friday 15 August 2008 at 12.00PM o’clock.

I bear in mind of the fact that the Claimant is willing and ready to pay an amount of Vatu 1,850,237 into the Chief Registrar Account pending the final determination of his claim.

I have perused the provisions of the following relevant legislations:

• Sections 24(1)(ca) and 26 and in particular subsection 5 of that section of the Representation of the People’s (Amendment) Act [CAP.146].
• Section 40(e) of the Land Leases Act [CAP.163].
  

They are set out below for ease of reference:

Section 24(1)(ca) of the Representation of the People’s Act [CAP.146] provides:

"24. Eligibility of candidates

(1) Subject to Section 23 a person shall be eligible to stand as a candidate for election to Parliament if he-

(ca) is a person who is not in default of payment of any rates, charges or other debts due to the Government or a Government agency as defined in the Public Finance and Economic Management Act [CAP.244, for a period exceeding 2 months after the same becomes due;"

Section 40(e) of the Land Leases Act reads:

"40. Agreement implied in leases on the part of the lessor

Save as otherwise expressly provided in the lease and subject to any written law there shall be implied in every lease the following agreements by the lessor with the lessee binding the lessor-

(e) That if at any time the leased land or any part thereof is destroyed or damaged by earthquake, hurricane, cyclone, fire, civil commotion or accident not attributable to the negligence of the lessee, his servants or his licensees so as to render the leased land or any part thereof wholly or partially unfit for occupation or use, the rent or a just proportion thereof according to the nature and extent of the damage sustained shall be suspended and cease to be payable until the leased land has again been rendered fit for occupation and used within 6 months of its destruction or damage as aforesaid, the lessee may at his option, and on giving 1 month’s written notice of his intention so to do, determine the lease; and

..."

"26. Declaration of invalidity of candidature by Electoral Commission

(1) When a declaration of candidature has been delivered and a deposit paid in compliance with Section 25 the candidate shall stand sponsored for election unless and until the Electoral Commission declares the candidature invalid or evidence is given to the satisfaction of the Electoral Commission that the candidate has died, or the candidate withdraws by notice in writing given to the Principal Electoral Officer.

(2) The Electoral Commission shall only declare a candidate invalid if-

(a) the candidate or his sponsors do not have the necessary qualifications or are disqualified; or

(b) the declaration of candidature is not sponsored as provided in section 25(2).

(3) Where the Electoral Commission decides that a candidature is invalid it shall so endorse the declaration of candidature giving reasons for the decision.

(4) The decision of the Electoral Commission that a candidature is valid or invalid shall be final and shall not be questioned in any proceedings whatsoever.

(5) Nothing in this section shall prevent the Supreme Court declaring the election of a candidate void after the election on the grounds that he was not qualified or was disqualified for election." [Emphasis added].

On the basis of the above considerations and in the light of Rules 17.3 of Part 17 of the Civil Procedure Rules 2002, and in the best interest of justice, I deal with the Urgent Judicial Review claim as if it is an interlocutory Order whether or not the Claimant mentioned an interlocutory Order in his Urgent Judicial Review claim (which is not the case) pursuant to Rule 7.7(a) and (b) of the Civil Procedure Rules;
And in the interim, the Court makes the following ORDERS:-

INTERIM ORDERS

1. That by consent of counsel and parties, there is urgency to deal with this matter.
   
2. The Court is satisfied that there is a substantive challenge on the declaration of 11 August 2008 made by the Respondent Electoral Commission in relation to the Claimant.
   
3. The Court is satisfied that because of the urgency of this matter, interim relief could be provided to maintain the status quo between the parties while the substantive claim will be dealt with after 2 September 2008 General Elections. The Court refers Counsel and parties to Section 26(5) of the Representation of the People’s Act [CAP.146] as the basis of the course taken in this interim exercise while the Respondent is not prejudiced by the Interim Orders made by the Court.
   
4. As to paragraph 3 above, the Court makes an Order suspending the effect of the Respondent’s declaration of 11 August 2008 in relation to the Claimant only.
   
5. And as such, the claimant is allowed to contest the General Elections of 2 September 2008 and the results of his elections are pending the final determination of his claim.
   
6. The Claimant pays the amount of 1,850,237 Vatu into the Chief Registrar Trust Account, being the total amount of his alleged debts owing to the Government of Vanuatu.
   
7. The costs are in the cause.
   
8. A conference is conveyed on 8 September 2008 at 8:00AM o’clock to progress the management of the Judicial Review claim.
   

DATED at Port Vila this 13th day of August 2008

BY THE COURT

Vincent LUNABEK
Chief Justice