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

CONSTITUTIONAL CASE No.02 of 2006

BETWEEN:

VANUATU COPRA AND COCOA EXPORTERS LTD
Applicant

AND:

THE REPUBLIC OF VANUATU
Respondent

Coram: Chief Justice Vincent Lunabek

Mr Robert Sugden for the Appellant 
Mr Dudley Aru, Solicitor General and Acting Attorney General on behalf of the Respondent

JUDGMENT

INTRODUCTION

Before me is an application by the Attorney General on behalf of the Respondent, the State Republic of Vanuatu. The Application is filed on 16 August 2006 and seeks to strike out a Constitutional Application filed on 24 March 2006 by Mr Robert Sugden on behalf of the Applicant, Vanuatu Copra and Cocoa Exporters Limited, a company registered in Vanuatu.

BACKGROUND FACT: EVENTS LEADING UP TO THE APPLICATION 

The following is the summary of the events leading up to the Constitutional application and the present application by the Respondent to strike it out:-

The Vanuatu Commodities Marketing Board (VCMB) is the registered proprietor of a leasehold property title No.03/OH71/026 at Luganville, Santo.

On 15 December 2004, a Deed of Release was signed by Holland Commodities and Vanuatu Commodities Marketing Board (VCMB), Ministry of Trade, PMB 9056, Port-Vila, Vanuatu. Both parties agree, among other matters, that the VCMB is to render its two cocoa sheds in Luganville and one shed in Port-Vila for the period of 4 years to be fully occupied and used by Vanuatu Copra and Cocoa Exporters Ltd (VCCE) as part of recovering the outstanding owed by the VCMB to Holland Commodities International Ltd in pursuant to the judgment order from the Court regarding portion of the debt in the sum of US$263,736.65 in Civil Case No.168 of 2002. The Deed was signed as the VCMB has failed to comply to Orders issued by the Court in CC 168 of 2002.

On 18 April 2005, the Supreme Court at Luganville, Santo, in a claim brought by Valele Trust against the VCMB in Civil Case No.15 of 2005, gave judgment against the VCMB for Vatu 2,000,000. VCCE Ltd was not a party to Civil Case No.15 of 2005.

On 18 July 2005, the Supreme Court at Luganville, issued an Enforcement Warrant (Non-Money Order) in Civil Case No.15 of 2005 that ordered the Sheriff to transfer possession and ownership of one of the two docks then being occupied and used by the Applicant, VCCE, to Valele Trust. It is alleged that VCCE Ltd was given no notice and was not heard in relation to the issuing of the said Enforcement Warrant.

On 16 December 2005, the Vanuatu Copra and Cocoa Exporters, (VCCE) and Holland Commodities International Ltd (HCI) filed applications in the Supreme Court as Third Parties affected by Enforcement Orders in Civil Case No.15 of 2005.

On 21 December 2005, Valele Trust filed a cross-application for Orders preventing the Claimant, VCCE Limited, from occupying or using either of the docks on registered leasehold property No.03/OH71/026.

On 22 December 2005, the Supreme Court in Port-Vila issued Interim Orders to maintain the status quo between the parties pending the hearing and determination of the above applications by Hon. Justice Saksak on 30 January 2006.

On 30 January 2006, the Supreme Court heard both applications jointly and the Honourable Justice Saksak issued Orders to the following effect:-

"(a)	VCCE Ltd, their Agents or Representative as Agents of the First Defendant herein be hereby restrained from going within 20 metres of the ex-VCMB Dock situated at Side River adjacent to Clean & Green Premises in Luganville, or without the Valele Trust prior written Consent."

THE CONSTITUTIONAL APPLICATION

On 24 March 2006, Vanuatu Copra and Cocoa Exporters Limited, a corporate entity, filed a Constitutional Application and applies for the following:-

A -	A declaration that the Order of 30 January 2006 made by the Honourable Mr Justice Saksak in the Supreme Court at Luganville in Civil Case No.15 of 2004 is a nullity and void.

B -	Damages for the Claimant’s loss of occupation and use of the storage docks on registered leasehold property 03/OH71/026.

C - 	Costs.

The constitutional application is filed on two grounds with a sworn statement of a Sethy Luwi William, dated 13 March 2006, a businessman of Luganville, Santo, in support of it.

The first ground is that the Applicant VCCE Ltd has, as a result of the foregoing been denied its rights to the protection of the law pursuant to Article 5(1)(d) of the Constitution in that it has been denied a hearing in relation to a matter that affected its material interests.

The second, is that the Applicant VCCE Ltd has also been denied protection from unjust deprivation of property pursuant to Article 5(1)(j) of the Constitution in that it has been deprived of its property rights without being given a chance to be heard.

THE APPLICATION TO STRIKE OUT THE CONSTITUTIONAL APPLICATION

On 16 August 2006, the Attorney General on behalf of the Respondent filed an application pursuant to Rule 2.8 of the Constitutional Procedure Rules to strike out the Applicant’s Constitutional Application.

The Respondent seeks the following Orders:

(1)	That there is no breach of the fundamental rights in relation to the Applicant in the Constitution.
(2)	The Constitutional Application be struck out in its entirety.
(3)	Costs.

The Application is advanced on two (2) grounds:

(1)	That the Applicant has no standing to make a Constitutional Application.
(2)	The Constitutional Application is an abuse of process.

Both grounds will be dealt with in turn.

I will deal first with the first ground of the application. The learned Attorney General advanced two limps of arguments and submissions in relation to the first ground.

In the first limp of their submissions, the Respondent contended that the Applicant, VCCE Ltd, has no standing to make a Constitutional Application as it is a corporate entity and not an individual.

The Respondent submits that Article 5 of the Constitution provides for the fundamental rights and freedoms of the individual and the reference in Article 5(1) of the Constitution to "race, place of origin, religious or traditional beliefs, political opinions, language or sex indicates that Article 5 is referring exclusively to human being or natural person but not a corporate entity. They rely on the case of François v. Ozols in Appeal Case No.155 of 1996, [1998] VUCA 5 in which the Court of Appeal held:-

"The purpose of Article 5 is to protect the individual against arbitrary or unjust treat by the organs of government through which the affairs of the Republic are administered. The protection of rights between the individual and the Republic, is ensured by other provisions of the Constitution, namely the provisions of Chapter 4 that establish Parliament to made laws for the peace, orders and good government of Vanuatu, the provisions of Chapter 7 that establish the Executive to implement those laws, and the provisions of Chapter 8 which establish the Judiciary to enable individuals to enforce them.

For example, the protection afforded by Article 5(1)(f) against "unjust deprivation of property" is a protection against seizure or confiscation by government action. The general law already provides a comprehensive package of rules to protect against the invasion of commercial, economic or proprietary interests of one person by another person. Such rights are protected by the criminal law, and by civil laws such as the law of contract and torts. In one sense if one person steals the goods of another the victim of that theft has suffered and "unjust deprivation of property", but that injustice is not one that finds protection in Article 5. The injustice would be met by prosecution of the offender under the criminal law, and by civil action under the general law by the victim against the thief to recover the goods or their value".

The Applicant/Company, VCCE Ltd filed a response to the Application to strike out its Constitutional Application on 25 August 2006. It is contended that it has standing and that he Constitutional Application is not an abuse of process.

This begs the question whether or not a company is a person within the meaning of Article 5(1) of the Constitution.

Mr Sugden submits that it is and refers the Court to Section 44 of the Companies Act [CAP.191]. It reads:

"A company shall have and shall be deemed always to have had the capacity of a natural person of full capacity, subject only to such limitation as are inherent in its corporate nature."

It is also contended for the Applicant VCCE Ltd that the Judgment of the Court of Appeal in François v. Ozols [1998] VUCA 5; (1998) CAC 155 of 1996 does not deal with this question and this is the first time that the question is brought before the Court for determination.

I agree with the Applicant’s submission that the question is brought before the Court for the first time and the judgment of the Court of Appeal in François v. Ozols (1998) does not deal with it. 

Articles 5, 6 and 53(1)(2) of the Constitution are the relevant provisions. They provide as follows:-

"CHAPTER 2
FUNDAMENTAL RIGHTS AND DUTIES

PART 1 - Fundamental Rights

FUNDAMENTAL RIGHTS AND FREEDOM OF THE INDIVIDUAL

5. (1)	The Republic of Vanuatu recognizes, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of 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 defence, safety, public order, welfare and health-

(a)	life;
(b)	liberty;
(c)	security of the person;
(d)	protection of the law;
(e)	freedom from inhuman treatment and forced labour;
(f)	freedom of conscience and worship;
(g)	freedom of expression;
(h)	freedom of assembly and association;
(i)	freedom of movement;
(j)	protection for the privacy of the home and other property and from unjust deprivation of property;
(k)	equal treatment under the law or administrative action, except that no law shall be inconsistent with this sub-paragraph insofar as it makes for the special benefit, welfare, protection and advancement of females, children and young persons, members of under-privileged groups or inhabitants of less developed areas.

(2)	Protection of the law shall include the following-

(a)	everyone charged with an offence shall have a fair hearing, within a reasonable time, by an independent and impartial court and be afforded a lawyer if it is a serious offence;
(b)	everyone is presumed innocent until a court establishes his guilt according to law;
(c)	everyone charged shall be informed promptly in a language he understands of the offence with which he is being charged;
(d)	if an accused does not understand the language to be used in the proceedings he shall be provided with an interpreter throughout the proceedings;
(e)	a person shall not be tried in his absence without his consent unless he makes it impossible for the court to proceed in his presence;
(f)	no-one shall be convicted in respect of an act or omission which did not constitute an offence known to written or custom law at the time it was committed;
(g)	no-one shall be punished with a greater penalty than that which exists at the time of the commission of the offence;
(h)	no person who has been pardoned, or tried and convicted or acquitted, shall be tried again for the same offence or any other offence of which he could have been convicted at his trial."

"ENFORCEMENT OF FUNDAMENTAL RIGHTS

6. (1)	Anyone who considers that any of the rights guaranteed to him by the Constitution has been, is being or likely to be infringed may, independently of any other possible legal remedy, apply to the Supreme Court to enforce that right.

(2)	The Supreme Court may make such orders, issue such writs and give such directions, including the payment of compensation, as it considers appropriate to enforce the right."

"APPLICATION TO SUPREME COURT REGARDING INFRINGEMENTS OF CONSTITUTION

53. (1)	Anyone who considers that a provision of the Constitution has been infringed in relation to him may, without prejudice to any other legal remedy available to him, apply to the Supreme Court for redress.

(2)	The Supreme Court has jurisdiction to determine the matter and to make such order as it considers appropriate to enforce the provisions of the Constitution."

It is necessary to consider the context in which Article 5 is in Part I of Chapter 2 of the Constitution, which is headed Fundamental Rights. It refers to ‘fundamental’ and not to ‘human’ rights and freedom and it gives no indication that it is limited to natural persons. The Constitution is a living document. Since 5 October 1979 which is the birthday of the present Constitution, the time has passed for supposing that the constitutional framers would use the words ‘all persons’ only to signify a natural person. Having regard to the important place in the economic life of Vanuatu society occupied by corporate bodies, I am of the opinion that the Constitution of Vanuatu as a modern Constitution, dealing with, among other matters, rights to property, to use the expression ‘all persons’ must include corporate entity such as a company.

A Company is a person and has the capacity of a natural person of full capacity. (See Section 44 of the Companies Act [CAP.191]. It can sue and be sued. It owns property and can be prosecuted for the commission of a criminal offence by it.

The reference to ‘race, place of origin, religious or traditional beliefs, political opinions, language or sex’ indicates that Article 5 was referring primarily to human or natural persons, but there is nothing to exclude artificial persons so far as they are capable of enjoying the fundamental rights and freedoms.

By perusing the provisions of Article 5 of the Constitution, it is obvious that there are certain rights and freedoms in Part I of Chapter 2 of the Constitution which from their very nature cannot be enjoyed by a corporation e.g. the right to life specified in Article 5(1)(a), the right to personal liberty specified in Article 5(1)(b) and the right to be protected from inhuman treatment and forced labour in Article 5(1)(e); but there is nothing in principle which prevents a corporation like a company from enjoying the rights relating to the securing of protection of law in Article 5(1)(d) and (2), the protection from unjust deprivation of property in Article 5(1)(j) and protection for equal treatment under the law or administrative action in Article 5(1)(k). It would not be an affront to common sense or reason to contend that if a corporation’s property were unjustly acquired (Article 5(1)(j), the company should, in like manner as a natural person, be entitled to compensation. Nor could it be convincingly maintained that a corporation, like a human being, if charged with a criminal offence would not be entitled to the right of a fair hearing in accordance with the fundamental principles of justice as prescribed in Article 5(2) of the Constitution. If bodies corporate were not entitled to use the machinery of Articles 6 and 53 of the Constitution, many anomalies would arise. For example, a natural person would lose the protection of the Constitution for his business if he formed a company to take it over.

For these reasons, I am of the opinion that the expression ‘all persons’ in Article 5(1) of the Constitution includes artificial legal persons. Therefore, the Applicant VCCE Ltd, has standing to apply to the Supreme Court for redress under the Constitution. The Respondent’s (State Republic of Vanuatu) first limp of submissions in support of the first ground of their application to strike out the Constitutional Application fails.

In the second limp of their argument the learned Attorney General submitted that the Applicant does not have standing to bring a Constitutional Application because it does not have a right that is guaranteed to it by the Constitution which has been, is being or is likely to be infringed. They contended that there is no material evidence showing that VCCE Ltd is the owner of the property in question which it is alleging it was unjustly deprived of.

The rights to protection for other property and unjust deprivation of property in Article 5 of the Constitution is not confined to ownership. The right of occupation and use of a property acquired lawfully are also protected under Article 5(1)(j).

In this case, VCCE Ltd enjoyed the right to occupy and use VCMB ‘s two cocoa sheds in Luganville and one shed in Port-Vila for the period of 4 years from 15 December 2004 by a Deed of Release (an agreement) between VCMB and Holland Commodities and VCCE Ltd signed by them on 15 December 2004.

Therefore, if the property the subject of occupation and use by the Applicant VCCE Ltd, is unjustly deprived of it by Government action, VCCE Ltd has standing to apply for constitutional redress in accordance with Articles 6 and 53 of the Constitution. The second limp of the Applicant’s submissions in relation to the First ground of the Application to strike out the Constitutional Application also fails.

I now deal with the second ground of the Application. 

In the second ground of the Application, the Learned Attorney General says that the Constitutional Application is an abuse of process.

The Respondent submits on the basis of Articles 47, 50 of the Constitution and Section 48 of the Judicial Service and the Courts Act. Under Article 47, the administration of justice is vested in the judiciary, who are subject only to the Constitution and the law. Its function is to resolve proceedings according to law.

Article 50 provides that Parliament shall provide for appeals from the Supreme Court to a Court of Appeal. The Applicant says Parliament has done so through the enactment of the Judicial Services and the Courts Act and Section 48 of the said Act reads:

"Subject to the provisions of this Act and any other Act, the Court of Appeal has jurisdiction to hear and determine appeals from judgments of the Supreme Court."

The Respondent submits that the Court of Appeal is the final Court of the land and its decisions are final. The decision of 30 January 2006 complained of, is only a decision of the Supreme Court in its original jurisdiction. They further contend that the sworn statements are silent on whether an appeal is pending or whether the Supreme Court decision was ever appealed.

I agree with the submission of the Respondent that the Constitutional Application and supporting sworn statements are silent on whether or not an appeal is pending or whether the Supreme Court decision of 30 January 2006 was ever appealed.

At the hearing of the Respondent’s application to strike out the Constitutional Application, Mr Sugden informed the Court that an appeal had been lodged against the Supreme Court decision of 30 January 2006 complained of and it was successful. The said decision has been set aside by the Court of Appeal in May 2006. However, Mr Sugden informed the Court that the Applicant intends to pursue with the Constitutional Application for damages. The Applicant says that the Constitutional Application is not an abuse of process. 

In my opinion, the present Constitutional Application is an abuse of the process of the Court for the following reasons:-

First, since May 2006, the Court of Appeal has set aside the decision of 30 January 2006 complained of. That must be the end of the matter as the judgment of the Court of Appeal in favour of the Applicant constitutes the remedy or redress the Applicant is entitled to. Thus, there is no deprivation of the property by the Respondent’s action.

Second, the intention of the Applicant to still continue with the Constitutional Application despite the successful appeal which set aside the impugned decision illustrates the abuse.

The last but not the least is that the Supreme Court judgment of 30 January 2006 complained of was issued by the Supreme Court Judge in accordance with the Supreme Court’s functions pursuant to the Constitution and the Judicial Services and the Courts Act and such a decision was effected in accordance with the law. The judgment of the Court of Appeal in François v. Ozols, which I apply, here, is in support of this view. In that case, the Court of Appeal held that:-

"If the effect of one of its Orders was to remove property or money from a litigant, such removal could not constitute an ‘unjust deprivation of property’ within the meaning of Article 5(1)(j). The deprivation would be one effected in accordance with the law." (at p.11).

In the present case, the removal of property from the Applicant by the Court decision of 30 January 2006, could not constitute an unjust deprivation of property within the meaning of Article 5(1)(j). The deprivation was effected in accordance with the law. The second ground of the Application to strike out the Constitutional Application is made out.

The Constitutional Application of 24 March 2006 is an abuse of process of the Court. There is no breach of any fundamental rights in relation to the Applicant under the Constitution. The Constitutional Application must be struck out in its entirety.

ORDER

1.	There is no breach of the fundamental rights in relation to the Applicant under the Constitution.
2.	The Constitutional Application is struck out in its entirety.
3.	The Respondent is entitled to their costs to be agreed if not to be determined.
4.	The next date for conference as to costs is: 17 October 2006 at 1.30PM.

DATED at Port Vila this 27th day of September 2006

BY THE COURT

Vincent LUNABEK
Chief Justice