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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Civil Case No.8 of 2000
IN THE MATTER of Twenty Expulsion Letters
Dated 15th March, 2000
AND
IN THE MATTER of Article 5 of the Constitution
of the Republic of Vanuatu
BETWEEN:
ROAN LESTER AND 18 OTHERS
Plaintiffs
AND:
MATEVULU COLLEGE
First Defendant
AND:
MATEVULU SCHOOL COUNCIL
Second Defendant
Coram: Mr Justice Oliver A. Saksak
Ms Cynthia Thomas - Clerk
Mr Saling N. Stephens for the Plaintiffs
Mr Bill Bani Tangwata for the Defendants
ORAL JUDGEMENT
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) That the Principal had exercised his discretion properly in the circumstances on 28th February 2000 by suspending the 20 Plaintiffs.
(2) Those suspensions were proper under the school rules.
(3) However when the Principal took the decision to send the 20 Plaintiffs out of the school, he was in indeed creating a difficulty 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 28th February. It was possible to have kept all Plaintiffs at the school compound with the assistance of the Police.
(4) The appointments of the members of the Council have not been proven and the validity of the decisions of their meeting of 29th February is still in question.
(5) When the Council took their decision to expel the 20 Plaintiffs on 29th February 2000 without first giving them the right to be present and be heard was a denial of their right to natural justice. That being so, their decision of 29th February, 2000 to expel the Plaintiffs was therefore null and void and of no effect.
(6) A further list of students alleged drunk was clearly established. That the Council did not see fit to consider taking disciplinary measures also against those whose names appeared on that list amounted to a discrimination. Furthermore, that the Council allowed Dyson Wilson back into college when his name appeared on both lists amounts to a discrimination by the Council. You cannot have one set of rules for some only students and another set of rules for the others. There is only one set of rules for every student and as such every student has to be treated and dealt with in the same way.
(7) The meeting of the Council on 10th April, 2000 was not properly quorated. Therefore the decisions taken at that meeting by the Council are null and void and of no effect. Quorum of meetings is 5 members. Only 4 members were present, on that date.
I have reached these findings in the light of the fundamental rights of the individual provided under Article 5 (1) of the Constitution, the provisions of the Administration of Schools Act (CAP.121) and to the provision of the School Rules.
Article 5(1) of the Constitution states:-
"The Republic of Vanuatu recognises, that subject to any restrictions imposed by law 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) life;
(b) ….….;
(c) ….….;
(d) protection of the law;
(e) ……..;
(f) ……..;
(g) ……..;
(h) ..……;
(i) ..……;
(j) ...……;
(k) equal treatment under the law or administrative action, ……."
(emphasis, mine)
The Plaintiffs are all students. Their lives tomorrow depends on what happens 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.
In the PNG case, Mr Premdas could still make a living in another country. Here the Plaintiffs 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.
And faced with their situation, the Plaintiffs had every right to come to this court to seek redress. 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 judicial review. It did not 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. Any person claiming to be interested under a deed, will, or other written instrument, may apply by originating summons for the determination of any question of construction arising under the instrument, and for declaration of the rights of the persons interested. (emphasis, mine)
Paragraph 9 of the affidavit of Mr Amon Gwero refers to an Acceptance Letter which states -
"I accept that the Principal will look after my child according to the standards 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 Defendants quoted Lord Denning in Reg. v. Gaming Board for Great Britain, Ex 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-matter is such that it is fitting that natural justice must be applied.
Now as to the declarations and orders sought:-
(a) The declaration sought in paragraph 1 is not necessary.
(b) The declaration sought in the alternative in paragraph 2 is allowed as follows:-
That the Plaintiffs are registered students not able to be expelled from their studies other than by giving of reasonable notice and/or allowed sufficient opportunity to be afforded a fair hearings by the Defendant.
(c) The declaration sought in paragraph 3 is refused.
(d) The Order sought in paragraph 4 is allowed in respect of any plaintiff who may be reinstated after a proper disciplinary hearing has been conducted by the Council.
(e) The order for injunction sought in paragraph 5 is refused.
Further the Court Orders as follows:-
(1) That this matter be referred back to the Council to have a proper disciplinary hearing. This meeting will be held as soon as possible not less than 14 days from the date of this order. The meeting will be held 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) That any of the Plaintiffs whose case is not substantiated be reinstated forthwith and be provided every assistance by the Defendants to redo last semester's studies.
(3) That the Defendants pay the Plaintiffs' costs of this application.
DATED at Luganville, this 21st day of July, 2000.
BY THE COURT
OLIVER A. SAKSAK
Judge
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