Kalsakau v Banga
JUDGMENT
INTRODUCTION
1. By its claim filed on 26th February 2026 the claimants seek:
a) An order to quashed the decision of the First Defendant made in a letter dated 13th January 2026.
b) A declaration that the second ordinary session of Parliament in 2025 continued from 14 November 2025 to 19 December 2025.
c) A declaration that the claimants are legally entitled to receive their subsistence and sitting allowances from 14 November 2025 to 19 December 2025 pursuant to the Members of Parliament ( Salaries & Allowance) Act [ CAP. 109].
d) An Order directing the defendants jointly or severally to immediately pay such entitlements as owed.
e) Interest at 5%, and
f) Costs
BACKGROUND
2. These claims are hinged on the judgments of this Court in Constitutional Case No. 25/3507 dated 18 December 2025 and the Court of Appeal in Civil Appeal Case No. 25/ 3822 dated 18 December 2025.
3. In the Supreme Court the claimants were successful. The defendants appealed to the Court of Appeal which dismissed the appeal and vacated the original orders but substituted the orders of the Supreme Court as follows:
a. “ The Parliamentary Notice of Motion No. 9 of 2025 is in order and a valid Notice of Motion pursuant to Article 43(2) and the Standing Orders of the Vanuatu Parliament.
b. The Speaker’s decision to close Parliament on 14 November 2025 without allowing Notice of Motion No. 9 of 2025 to be move, debated and voted on was unconstitutional and is quashed.
c. The Speaker of Parliament is hereby required to give to all Members of Parliament a copy of the Notice of Motion No. 9 of 2025 by 4pm 17 December 2025.
d. The Speaker of Parliament is to summons the Vanuatu Parliament to debate the Notice of Motion No. 9 of 2025 on Friday 19 December 2025 at 10.30am.”
DEFENCE AND EVIDENCE
4. The claimants filed evidence in support of their claims by Jay Ngwele who deposed to a sworn statement dated 26th February 2026 setting out the background events that led to the institution of the legal proceedings and the judgment given in favour of the claimantʻs, to be the basis of their claims for entitlements to subsistence and sitting allowances for the period 14 November to 19 December 2025.
5. The defendants filed a defence on 10 April 2026 acknowledging the judgments of both the Supreme and the Court of Appeal but denying essentially that the claimantʻs are entitled to subsistence allowances from 15 November 2025 to 18 December 2025 because Parliament was closed and was only re-opened by Order of the Court of Appeal on 17 December 2025. They accept the claimants are entitled only to sitting allowances for one day and to accommodation allowances which have been paid in full.
6. The defendants filed evidence in support of the defence by sworn statement of Maxime Banga dated 28 May 2026. He annexed copies of the judgments of this Court and of the Court of Appeal, ( MB1, MB2, and MB3, the letter of 29 December 2025 by Albano Lolten, Finance Manager ( MB4), the response by the Opposition Leader of 6th January 2026 to Mr Lolten ( MB5), the letter of 13 January 2026 by First Defendant to the Leader of Opposition ( MB6), letter by Mr Sakiusa Kalsakau to Mr Banga of 30th January 2026 ( MB 7) and the Imprest Acquittal Form, including receipts and other related documents dated 27/1/2026 (MB8).
7. The documents included with the Imprest Acquittal Form ( MB8) confirm payments of subsistence allowances made to the claimants and all other MPs for the period from 10 November to 19 December 2025.
CONSIDERATIONS
8. I consider the claims of the claimants in light of the pleadings in both the claim and the defence filed, the evidence by sworn statements and the written submissions filed by Mr Kalsakau on 7th September 2026 and by Mr Aron on 30th September 2026. I heard Counsel orally in relation to their submissions in chamber on 14 October 2026 and reserved my decision.
9. The facts are not in dispute. But there are legal issues which is summarised in basically just one which is:
“ Are the claimants entitled to receive allowances for the period which Parliament was unlawfully closed?”
10. This is the relief sought in paragraph D of the Judicial Review Claim. It is a claim for payment of statutory entitlements to subsistence and sitting allowances. It is a claim made within or under the guise of a judicial review proceeding. The issue is whether this is the proper course or is it an abuse of process? In my considered opinion, this claim is an abuse of process.
11. As a judicial review claim the relevant factor to consider is Part 17 of the Civil Procedure Rules No.49 of 2002 which makes provisions for the process of reviews of decisions, actions or failures of decision makers in relation to the exercise of a public or non public functions.
12. It was essential to have considered the four criteria stipulated in Rule 17.8 (3) (a), (b), (c) and (d). This process was by- passed when Mr Aron conceded at a conference hearing on 9th June 2026 that the claimants had met the four criteria. And both Mr Kalsakau and Mr Aron agreed to file and serve written submissions as to the legal issues.
13. That being the case, the focus was on the judgments of the Supreme Court and of the Court of Appeal in Constitutional Case 25/3507 as appealed in Civil Appeal Case No. 25/3822.
14. Being a judicial review proceeding the question I pose is : which decision am I being asked to review? In my view the claimant’s claims for statutory entitlements to subsistence and sitting allowances were conceived as a consequential effect or result of the judgments referred. As such the proceeding should in my view have been instituted as a normal civil claim, and not as a judicial review claim.
15. This letter is pleaded in paragraph 12 of the Judicial Review Claim as the “ impugned decision”. The writer of the letter is Maxime Banga, Clerk of Parliament, named as the First Respondent in the proceeding.
16. The letter is a “ Response” and a “ confirmation” of the One Day Allowance for the extension of the Second Ordinary Session of Parliament ( 15 November -19 November December 2025). Reading between the lines, I do not find that Mr Banga was the decision maker who decided that only one day sitting allowances should be paid to the claimants. Mr Banga was simply acting on advice. The Attorney General was not made a party to the proceeding despite being notified.
17. There is a further letter pleaded in paragraph 10 of the Judicial Review Claim being that of 29 December 2025 written by Mr Albano Lolten, the Finance Manager of Parliament .By that letter Mr Albano informed the Deputy Leader of Opposition Mr Jay Ngwele that the claimants were only entitled to one day’s sitting allowance when Parliament sat. That letter was not challenged.
18. Parliament was ordered to sit on 19 December 2025 to debate the Motion lodged by the claimants. This meeting was neither an ordinary session under Standing Order 13 nor was it an extra ordinary session under Standing Order 15 of Parliament.
19. Standing Order 13 (8) states:
“ Under normal circumstances Parliament and its committees do not meet in the periods of December 15th to January 15th or July 15th to August 15th” ( my emphasis).
20. The effect of this order is that from 15 December 2025, Parliament was lawfully closed. But by Order of the Court of Appeal, it was reopened only on 19th December 2025 for the sole purpose of debating the claimant’s motion of non-confidence. The meeting on 19th December 2025 was therefore a special sitting of Parliament.
SPECIAL SITTING
21. Standing Order 16 of Parliament states:
“16.Parliament may hold a special sitting to decide such matters as are required to be considered a special sitting under the Constitution or other law.” ( my emphasis).
22. The sitting held by Parliament on 19 December 2025 was ordered by the Court of Appeal to give effect to a Constitutional provision. As such it was a special sitting for only one day and therefore all members of Parliament attending Parliament on 19 December 2025 were entitled to both the sitting allowances and the subsistence allowances for only one day, being for 19 December 2025.
23. I find therefore that the claimants are not entitled to subsistence allowances for the periods from 14th to 17 November 2025 as claimed.
24. From the evidence of Mr Maxime Banga by sworn statement, paragraph 17, the claimants have been paid their sitting and subsistence allowances for 19th December 2025. As such they have no valid claims against the Republic. Their claims are therefore misconceived and is an abuse of process being brought by way of a judicial review.
CASE LAW
25. The claimants placed reliance on the English case of Ahmed v HM Treasury (No. 2) [2010] UKSC 5. However in my view the facts and circumstances of that case were totally different from the facts and circumstances of this Parliamentary case because despite the quashing order, pursuant to Standing Order 13 (8) Parliament had effectively and legally closed as from 15 December 2025. As such there could not have been any ordinary or extra ordinary sittings from that date to give rise to any claims for subsistence or sitting allowances for periods even prior to 15 December 2025.
THE RESULTS
26. For the reasons given, the Court declines the quashing order sought in A of the claim, the two declarations sought in B and C of the claim, the order sought in D, and for interests and cost in E and F.
27. The claims fail in their entirety and are hereby dismissed.
28. The claimants have put the defendants to unnecessary costs. I Order that the claimants pay the defendant’s cost of the proceeding on the standard basis as agreed or taxed. Once settled, it is to be paid within 28 days.
DATED at Port Vila this 20th day of October 2026
BY THE COURT
Hon. Justice Oliver A Saksak