Civil Case No. 50 of 2002.
BETWEEN:
JOHNNY MARANGO
on behalf of himself and fellow
brethren of Seventh Day Adventist.
Plaintiff
AND:
CHIEF NATMATSARU
of Lelepa Island, Efate.
First Defendant
AND:
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REGIONAL COUNCIL OF CHIEFS
of Lelepa Island, Efate.
Second Defendant
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Coram: Vincenabek Chief
Justice
“1. &nnbsp;plee ineadineadings ings in
the Statement of Claim in particular paragraphs 10 and 12 in so far as it
refers
to constitutional rights and freedoms intimated that such rights have
or may have been breached conferred if at all on this
Court (Magistrate’s
Court) jurisdiction to make declaration to the effect that such rights have
or have not been breached
pursuant to Article 5 of the Constitution.
2. &nbbsp; In a sn a situation
such as this assuming that constitutional rights have been breached but the
nature
of the claim is within the jurisdiction of the Magistrate’s Cto
etermuch claim, in thin this cass case mone monetary awards for
money expanded, must
the Court assume jurisdiction and determine the claim notwithstanding the
provision of Article 6
of the Constitution?”
The background of the cases
stated is summarised as follows:-
On the 4th September
2001 the plaintiff filed Amended Statement of Clof Claim which was further
amended on the 14th January 2002, seeking monetary damages and a
declaration that the plaintiffs practice their religious beliefs and worship
on Lelepa Island citing Constitution as the basis for conferring religious
worship and freedom sanctioned by Article 5
with rights were breached giving
rise to the claim for damages.
On the 5th February
2002 the Writ of Summons came beforbefore the Magistrate for hearing. Counsel for
the defendants applied to
have the Summons struck out for lack of Courts
jurisdiction since breaches of constitutional rights under Article 5 was
pleaded. Counsels were then invited to make written submissions to address
the Court on its jurisdiction. The Magistrate
adjourned the proceedings to
26th February 2002. On 26th February 2002 matter
further adjourned to 28th March 2002 as counsels were late in
their submissions.
On the 28th March
2002 having considered submissions from counsels on jurisdiction the
Magistrate transferred the matter to the Supreme
Court.
Ttter was then listed
before the Supreme Court for hearing on the 2nd day oday of April
2002. On 2nd April 2002 the Supreme Court referred the matter
back to Magistrate Kewei Kawi-iu to specify or ascertain the constitutional
question that he then intended to seek the opinion of the Supreme Court on.
The matter was adjourned for the case stated
to be heard on the 3rd
May 2002 at 1.30 pm. The case was subsequently adjourned from 3rd
May to 16th May 2002 and further adjourned to 21st May
2002.
On 21st May 2002 the
Court proceeded to hear submissions from boom both counsels.
Mr. George Boar on behalf of
the plaintiffs submitted to the following effects.
First, Magistrate’s Court has
jurisdiction to make a declaration sought in the Summons. The basis of that
declaration
is that the declaration, as a remedy, is discretionary.
Second, that the issue of the
Constitution is attached to a fundamental right ofht of all citizens and any
declaration
if made does not change the status of the parties.
class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
The declarations sought is
effect is for the parties to say that they have thve that right in the
Constitution. Plaintiffs
do not file constitutional petition. And the rights
in question are rights between the private citizens. The plaintiff submitted
by counsel that the Magistrate’s Court has jurisdiction to make such a
declaration. As to the second question reserved
by the Magistrate it is
submitted for the plaintiff that the issue of expenses can be dealt with by
the Magistrate’s
Court as that Court has jurisdiction to deal with that
issue.
In reply Mr. Saling Sns
submitted on behalf of the defendants that the Mage Magistrate’s Court has no
jurisdiction or
power to deal with the constitutional declaration sought by
the plaintiffs. The reason being that before the Magistrate can
issue such
declaration as of breaches of right contained in the Constitution, the
Magistrate must proceed by way of inquiry
as to the potential breach of such
right. And this is only the jurisdiction which is entrusted in the Supreme
Court by
the Constitution under Article 6. As to the second question Mr.
Saling submitted on behalf of the defendants that because the
Magistrate’s
Court has no power to deal with the constitutional issue, therefore the
Magistrate cannot deal with the
second issue of damages which is related to
the first.
p class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
The answer to question s
posed is in the negative. The Magistrate’s Court hart has no jurisdiction to make
declaration
to the effect that such rights have or have not been breached
pursuant to Article 5 of the Constitution.
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That is the jurisdiction which
is entrusted to the Supreme Court by the Constitutiitution under Article 6.
Article 6,
then, provides that:-
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“ENFORCEMENT OF FUNDAMENTAL
HTS
(1)ot;"> &nnsp;&&nsp;;&nspp;
s Anyone who considers that any of the rights guaranteed to him by the
Constitution has been, is being or is likely to be infrinay,
indeptly of any other possible legal remedy, apy, apply tply to theo the Supreme Court
to enforce that right.
(2) &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &&nsp;;
sp;
Than>The Supreme Court may make such orders, issue such writs and give
such directions, including the payment of compensation,
as it considers
appate torce ight.span><”
It is to berved that
although, the learned Senior Magistrate refe referred the case before the Supreme
Court under Section
11 of the Courts Act [CAP. 122], the very source of
reference by the Magistrate to the Supreme Court on Constitutional issue
must be Article 53 (3) of the Constitution.
In effect Article 53 (3) says:-
span>
“When a question concerning
the interpretation of the Constitution arises before a subordinate court,
and the court considers
that the question concerns a fundamental point of
law, the court shall submit the question to the Supreme Court for its
determination.”
In this regard, I agree with
the first submission advanced by Mr. Saling on behalf of the defendants.
In respect to the second
question, the amount of damages is within the monetary jurisdictional limit
of the Magistrate’s
Court and as such the Magistrate’s Court can determine
the claim for damages but only after that the constitutional issue as
raised
in question 1 is determined by the Supreme Court.
p class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
The Court has issued directions
for the plaintiff to file constitutional petition within 14 days to pursue
with his claim
under question 1 if he so wishes.
Thts are reserved.
p class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
Dated at Port Vila, this 24thspan>
BY THE COURT
Vincent LUNABEK
Chief Justice.
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