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

Civil Appeal Case No. 30 of 2002

IN THE MATTER OF: The Constitution of the Republic of Vanuatu

AND IN THE MATTER OF: The Local Government Council Election (Procedure Rules) Order No. 61 of 1982

BETWEEN:

MAXWELL MATSAMATSA and KAMI MITA
Appellants

AND:

THE ELECTORAL COMMISSION
First Respondent

AND:

THE SANMA PROVINCIAL COUNCIL
Second Respondent

Coram: Hon. Chief Justice Lunabek
Hon. Justice Robertson
Hon. Justice von Doussa
Hon. Justice Fatiaki
Hon. Justice Coventry

Counsels: Mr. Saling Stephens for the Appellants
Mr. Edwards and Ms. V. Molissa for the First Respondents
Mr. Daniel Yawha for the Second Respondent

Hearing Date: 7th May 2003.
Judgment Date: 9th May 2003.

JUDGMENT

This matter concerns a dispute which has arisen regarding the elections held on 10th November 2000 for the Sanma Provincial Council. The present appeal is against a judgment entered on a constitutional petition brought under s. 218 of the Criminal Procedure Code [Cap. 136]. By that judgment the primary judge dismissed most claims for relief brought by the appellants, but made a finding that they were entitled to compensation for part of their alleged losses arising from an infringement of their constitutional rights. There is a cross-appeal challenging that finding.

After hearing the parties on 7th May 2003, the Court indicated that the appeal and cross-appeal would be allowed, that the orders made by the primary judge would be set aside, and that the matter would be remitted to the primary judge for further hearing. We indicated to the parties why we thought that course was necessary. We now briefly record our reasons.

As the proceedings were brought by way of constitutional petition, the procedure that must be followed by the Supreme Court is set out in s. 218 of the Criminal Procedure Code. As will appear below, an issue arises in this matter as to the constitutional validity of Part VII of the Local Government Election Rules, Order No. 61 of 1982, as amended. Under Article 53 of the Constitution, the constitutional validity of legislation may be challenged, and the challenge must be made by constitutional petition: see s. 218 (1) of the Criminal Procedure Code. In such a case the Attorney General is a necessary party to the proceedings, to represent the Republic of Vanuatu: see Picchi v. The Attorney General, Civil Appeal Case No. 20 of 2001, Judgment 1st November 2001.

Under s. 218(3) of the Criminal Procedure Code, an obligation rests on the petitioner to serve all the parties whose actions are complained of. It is a necessary part of the judicial function that the trial judge be satisfied that parties whose interests may be directly affected by the orders sought are notified of the proceedings, and have the opportunity to be heard. Once the necessary parties have been notified, the Court must proceed as required by s. 218(5). Unless the Court shall be satisfied in the first instance that the petition is without foundation or vexatious or frivolous, the Court shall set the matter down for hearing “and enquire into it”.

In the present case the Attorney-General was not a party, and for this reason the proceedings were defective when the case came on for hearing before the primary judge. This case demonstrates the importance of ensuring the Attorney-General is a party. It is the Attorney-General who has, through counsel for the Electoral Commission, informed the Court of the issues concerning the constitutional validity of Part VII of the Local Government Council Election Rules. Had the Attorney-General been joined in the first instance, this issue may have emerged at the outset.

The appellants in their written submissions indicate that the challenge which they make to the election results which were published by Gazette on 9th July 2001 raises issues which concern the correctness of declarations made by this Court in Civil Action No. 14 of 2001. The challenge includes the contention that the Court lacked jurisdiction to make the declarations that it did in those proceedings. Those declarations bind people who are not at present parties to the current proceedings. If the vindication of the constitutional rights of the present appellants could vary the rights of the parties to Civil Action No. 14 of 2001, as declared by the Court, the parties to those proceedings are also necessary parties to this action. For that reason also, the present proceedings were defective for want of necessary parties when the matter came on for hearing before the primary judge.

The issue concerning the constitutional validity of the Local Government Council Election Rules arises in this way. Article 54 of the Constitution provides:

“The jurisdiction to hear and determine any question as to whether a person has been validly elected as a member of Parliament, the National Council of Chiefs, and a Local Government Council or whether he has vacated his seat or has become disqualified to hold it shall vest in the Supreme Court”.

Part VII of the Local Government Council Election Rules concerns election petitions. Rule 34 provides:

“34. (1) The validity of any election to the Local Government Council may be questioned by a petition brought for that purpose under these rules and not otherwise. 

(2) Every election petition shall be heard by the Election Disputes Committee”.

The argument it is that Rule 34, by seeking to make the Election Disputes Committee the sole arbiter of an election dispute concerning Local Government Council elections is contrary to Article 54 of the Constitution which vests the relevant jurisdiction in the Supreme Court. This argument raises a question of great importance which, in the public interest, needs to be resolved as a matter of urgency, either by judicial proceedings or by amendment of the relevant legislation.

As the proceedings were not properly constituted when the primary judge made the orders now under appeal, those orders must be set aside. The matter will be remitted to the primary judge. It is the responsibility of the appellants, in the first instance, to ensure that the action is properly constituted. Then the matter can proceed in the manner required by s. 218 of the Criminal Procedure Code.

The costs of the proceedings so far before the primary judge, and costs of the parties to this appeal should become costs in the cause to abide the ultimate outcome of the proceedings. The orders of the Court are:

1.	Appeal and cross-appeal allowed.

2.	All orders of the primary judge made on 18th November 2002 set aside.

3.	Matter remitted to the primary judge for further consideration.

4.	Costs of the proceedings in the Supreme Court to date and costs of this appeal to be costs in the cause.

Dated at Port Vila, this 9th day of May 2003.

BY ORDER OF THE COURT

Hon. Vincent Lunabek, CJ
Hon. Bruce Robertson J.
Hon. John von Doussa J.
Hon. Daniel Fatiaki J.
Hon. R. Coventry J.