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Vunipola v Tongatapu Rugby Football Sub-Union Incorporated [2022] TOSC 93; CV 8 of 2021 (25 October 2022)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION

NUKU'ALOFA REGISTRY


CV 8 of 2021


BETWEEN:
[1] FEAO VUNIPOLA

[2] MOSESE HUNI Plaintiffs

-and-
[1] TONGATAPU RUGBY FOOTBALL SUB-UNION INCORPORATED
[2] MANU MATAELE
[3] ‘AISEA ‘AHOLELEI
[4] MALUAFISI FALEKAONO Defendants


JUDGMENT


BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mr F. Vunipola (by AVL from London)
Mr W. Edwards for the Defendants
Trial: 27 to 30 June 2022, 17 to 18 August 2022
Submissions: 2, 16, 23, 27 September 2022
Judgment: 25 October 2022


The proceeding

  1. In this proceeding, the Plaintiffs advance five claims against the Defendants of alleged breaches of the Constitution of the Tongatapu Rugby Football Sub-Union Incorporated (“the Sub-Union”). By way of relief, the Plaintiffs seek:[1]
  2. The Defendants have denied the claims.
  3. The circumstances in which the Court will consider exercising its jurisdiction to ‘interfere’ in the internal affairs of a sporting body such as the Sub-Union here were discussed in the related proceedings of Vunipola v Tonga Rugby Union Incorporated [2021] TOSC 141 at [32] to [39].[2] Like those in Viliami Tonga & Ors v Tonga Rugby Football Union & Anor (“Tonga v TRU”) (CV 15/2016, 3 October 2017), where Paulsen LCJ determined to interfere in the affairs of the TRU, the claims here raise issues as to whether the Sub-Union has failed to comply with certain provisions of its Constitution concerning, principally, the requirements for, and the manner in which, its annual general meetings are to be conducted and office bearers elected.

The Parties

  1. In 2016, Mr Vunipola was appointed interim Chief Executive Officer of the Tonga Rugby Union (“TRU”). In December 2017, he was elected Vice President of the TRU. As such, Mr Vunipola considered it his role to “ensure that the rule of law is maintained”.[3]
  2. During the 18 December 2019 AGM, Mr Vunipola represented the Tavatu’utolu club and Mr Huni represented the Hihifo club. Apart from providing one affidavit, the Second Plaintiff, Mr Huni played no active part in the litigation which has been conducted almost entirely by Mr Vunipola from the United Kingdom.
  3. At the same AGM, Mr Mataele was elected President of the Sub-Union while Mr ‘Aholelei was appointed representative of the Vahe Kolomotu’a district and Mr Falekaono was appointed representative of the Vahe ‘Uta district. By virtue of their election, all three were also appointed directors of the TRU.
  4. Initially, Mr Vunipola also named the TRU as the First Plaintiff. In April 2021, after it was revealed that Mr Vunipola had purportedly joined the TRU without any resolution by its Board, power under the TRU’s Constitution, or other legal basis for doing so, an order was made dismissing the TRU from the action.

Related proceedings

  1. The context and purpose for which this proceeding has been instituted has some connection to other related proceedings commenced before and after it. A common denominator in all the proceedings is, and has been, Mr Vunipola.
  2. In Tonga v TRU, in which Mr Vunipola was a defendant, Paulsen LCJ declared that certain amendments to the TRU Constitution at an AGM in May 2106 were void.
  3. In 2020 (in CV 3 of 2020), two of the Defendants here, ‘Aisea ‘Aholelei and Manu Mataele, among others, sued the TRU and Mr Vunipola for various breaches of the TRU Constitution by Mr Vunipola in his capacity as interim CEO, including failing to submit financial statements to the Board or to obtain audited accounts for the years 2016 to 2019 and seeking to exclude several persons, including ‘Aisea ‘Aholelei and Manu Mataele, from attending the TRU’s AGM on 20 December 2019. Mr Vunipola denied those allegations and initially opposed any audit. Orders were made and an audit report was filed. On 20 November 2020, the audited reports and auditor’s Management Letter were presented. The auditors identified a number of anomalies in the management of the TRU's finances. The then Board, after considering the auditor's recommendations, decided to take no action against Mr Vunipola. Notwithstanding, Mr Vunipola disputed the auditor's findings. However, he did not seek to ventilate his complaints in any of the pleadings in that proceeding. By May 2021, the Plaintiffs in those proceedings were satisfied with the outcome of the audit process, and therefore leave to discontinue was granted. Mr Vunipola then indicated that he would pursue his grievances through other proceedings.
  4. The instant proceedings were commenced in January 2021. A few months later, in May 2021, Mr Vunipola commenced parallel proceedings CV 28 of 2021 against the TRU and others in which he alleges various breaches of the TRU Constitution, including that:
  5. In August 2021, a number of claims in that proceeding were struck out as an abuse of process as those issues were already the subject of this proceeding. Mr Vunipola’s pleading in relation to the audit findings was found to be defective. The remaining claims were stayed pending the hearing and determination of this proceeding.

The evidence generally

  1. In this proceeding, Mr Vunipola and Mr Huni gave evidence. Mr Vunipola also called evidence from his brother, Manu Vunipola, Dr ‘Olikoni Ta’ai and Isileli Fatani. Only Mr Vunipola and Dr Ta’ai were required for cross-examination.
  2. Each of the individual Defendants gave evidence. In addition, the Defendants called evidence from Siaosi Faka’osi, ‘Alekisanita Taka, Tomasi ‘Akimeta, Vili Uhi, ‘Uate Halatoafa, Filokalafi Akau’ola, Semisi Fonua, Anderson Sanft, Sitaleki Lu’au, Kasi Fine, Lokingi Mavae, Tupou ‘One’one, Pitikeni Fungavaka, Eliot Ness Taufa, Soane Havea, ‘Eva Mafi, Sekona Tu’akoi, Kosema Katavake, Siaosi Faka’osi, Maluafisi Falekaono, Simione Maka, Siu’ivahamama’o Fangupo and Ma’afu Palu. Mr Vunipola cross examined Messrs ‘Aholelei, Mataele, Falekaono, Faka’osi, Taka, ‘Akimeta, Halatoafa, Akau’ola and Sanft (including being granted leave to recall a number of those witnesses for further cross-examination on matters Mr Vunipola overlooked during their initial appearance at the trial).
  3. Mr Vunipola is not a trained lawyer. Nonetheless, due to the nature of the Plaintiffs’ claims and the manner in which the proceeding was conducted, the evidence filed and called at trial was prolix and convoluted. Much of the affidavit material sworn by Mr Vunipola and each of Mr Huni, Manu Vunipola and Dr Ta’ai was identical. Repeated references by the respective deponents to themselves in the third person strongly suggested that their affidavits had been produced by one person by copying and pasting extensive sections of the one original affidavit. Further, much of the Plaintiffs’ affidavit material comprised recitations of the pleaded claims, speculative and unsubstantiated assertion, argument, submissions (including asserted interpretations of provisions of the Sub-Union’s Constitution) and repetition, all of which tended to obscure rather than illuminate the real issues for determination. As a result, the trial was protracted and bifurcated.
  4. An example of that conduct was when Mr Vunipola, who was responsible for preparation of the court book, failed to include a lengthy affidavit he had filed on or about 15 October 2021 in purported reply to the many affidavits filed by and on behalf of the Defendants. He only referred to it during the trial and after he had been cross-examined. Mr Edwards objected to reliance on the reply affidavit and also filed objections as to admissibility, most of which fell within the categories described above. Mr Vunipola’s response to the objections was:
“I fully respect Mr Edwards detail response in his list of objections but I would prefer to have them considered and determined during the course of judgment.”
  1. Another example was Mr Vunipola’s improper inclusion with his closing submissions of minutes of TRU meetings in 2015, 2016 and 2017. Those documents were not tendered into evidence at trial, relevant witnesses were not cross-examined nor given an opportunity to respond to them. Accordingly, I have not considered them.
  2. By contrast, the Defendants’ evidence more directly engaged with the factual issues. The large number of witnesses (or deponents) relied on by the Defendants was a result of the issue which consumed most time and energy during the trial - the third claim - and Mr Vunipola’s repeated insistence throughout the proceeding for a list of the signatures of the attendees at the 2019 AGM to be produced.
  3. I have considered all the evidence that was presented at trial and the parties’ closing submissions filed thereafter. I have also considered Mr Edwards’ objections to Mr Vunipola’s reply affidavit, cognizant of the Plaintiffs’ lack of legal representation, and have given such weight to those parts of Mr Vunipola’s reply affidavit which actually constituted evidence as I consider appropriate.
  4. Sifting through all the evidence for that which was relevant and admissible has proven a formidable task. Judicial economy necessitates that only that evidence, and as referred to by the parties in their closing submissions, is considered on each of the claims below. Thankfully, a good deal of that was uncontroversial.
  5. Save for discrete observations below, I generally found the witnesses who appeared during the trial to have been honest in their evidence and that they did their best to recount the relevant events. For the most part, their evidence was credible and reliable. I have accepted the affidavit evidence of those deponents who were not required for cross-examination as unchallenged.
  6. There was, however, a palpable element of partisanship among those supporting Mr Vunipola and, to a lesser extent, among some who supported Mr Mataele. Just as the subject matter of the proceeding concerned the organisation of rugby union in Tongatapu, those who exhibited bias for one side or the other clearly demonstrated an unfortunate interest in an apparent contest for control of the organisation, and indirectly, the game.

Sub-Union Constitution

  1. The Sub-Union’s Constitution has been amended from time to time. This proceeding has been based on the 2013 revision which provides, relevantly:

(clauses 8(2)(e), (f) and (j))

(j) the Executive Committee shall:
(k) a Premier Club shall be defined as a club who has taken part in at least the previous seasons top Premier competition of the Sub-Union and gives satisfactory evidence to the Sub-Union of its ability to take part in the Premier Competition of the current season (clause 10(ii));
(l) any clubs that had lost their affiliation status or had not participated fully in the club competition in one year or being disciplined for not complying with the Sub-Union rules will have to reapply to be admitted as an affiliated club as per rule 10(v) (clause 10(iv));
(m) a Premier club shall be entitled to two delegates to attend and vote on all General Meetings. All other clubs shall only be entitled to one delegate on all General Meetings (clause 10(vii));
(n) the Secretary shall issue 28 days notice through the local newspaper and radio station, convening the AGM to all members and provisional members of the Sub-Union indicating the date, time and venue of such meeting (clause 11(c));
(o) only a full member of the Sub-Union may submit a motion to be considered in the AGM, and such motion shall be delivered to the Secretary 21 days before the date of the AGM (clause 11(d));
(p) the Secretary shall issue the agenda to the AGM 14 days before the AGM to the provisional and full members of the Sub-Union (clause 11(e));
(q) no AGM shall be deemed to be invalid based on the ground that articles 11(c), (d) and (e) have not being complied with, provided that a quorum has been attained and a majority of the members present agreed to waive such requirements and consent to hold the AGM (clause 11(f));
(r) the agenda for the AGM shall include ... (vi) nomination of names to be confirmed as representatives of the Sub-Union to the Board of the Union (clause 11(guilty));
(s) attendance at the AGM shall be restricted to the 8 office bearers, 5 members of the Executive Committee, duly appointed delegates from affiliated clubs, life members and one delegate each from the referee association and Tonga secondary school association (clause 11(i));
(t) every person who attends the AGM... is entitled to vote (clause 11(l));
(u) the Constitution and Rules shall not be altered, added [to] or rescinded except on a majority vote of two thirds of members present forming a quorum at an AGM or a Special General Meeting (clause 15(i));

First Claim

  1. I now turn to the Plaintiffs’ claims. In order to fully appreciate them, they will be recited verbatim from the pleadings.
  2. By their first claim, the Plaintiffs allege that:

“The First Defendant’s Legal Status stated in Clause 2(i) of the Constitution of Tongatapu Rugby Football Sub-Union Incorporated, stipulated that it shall be incorporated under the Incorporated Societies Act 1988 (Cap.28). In checking with the Ministry of Labour, Commerce, and Industries prior to the Annual General Meeting of 2019, it revealed that it was never registered hence was an unincorporated society and an illegal entity.

Manu Mataele, Second Defendant, in paragraph 4-6 of his affidavit sworn on 18 March 2021 and filed on 19 March 2021, provided copies of Certificate of Incorporation of “Komiti ‘Akapulu ‘Iunioni ‘Ae Vahe Tongatapu Incorporated” the original sub-union, annexed with letter “A” and the document filed in support of registration. This is a completely different society to the Tongatapu Rugby Football Sub-Union Incorporated. (Certificate of Incorporation of Komiti Akapulu ‘Iunioni ‘ae Vahenga Tongatapu is filed on Part C: Document of plaintiff pages 28-29.)

He went on to state that the Plaintiffs make at paragraph 12 of the statement of claim, that the Tongatapu Sub-union is not registered, is false. However, Tonga Rugby Union’s Constitution clause 15(1)(a) [sic] specified the name of the sub-union as “Tongatapu Rugby Sub-Union and not Komiti Akapulu Iunioni ‘ae Vahe Tongatapu Incorporated.”

The Certificate of Incorporation evidenced the name of the sub-union as the “Komiti Akapulu Iunioni ‘ae Vahe Tongatapu Incorporated.” The following members were recorded as the founding members of the original sub-union.

a. Uate Halatoafa – Chairperson;

b. Sione Melekiola – Deputy Chairperson

c. Feleti Tu’ihalamaka – Treasurer

d. Richard Mafi – Deputy Treasurer

e. MarkHojelsen–Secretary

f. Semisi Apai – Deputy Secretary

g. Sione Taumoepeau – Witness & Life Member now Deceased.

To date, all the above members had vacated their positions with one being deceased.

Tongatapu Rugby Sub-Union should call a new General Meeting to have their Constitution regularized and society incorporated and also conduct a new election before the TRU AGM in May.”

Evidence

  1. The certificate of incorporation referred to above was issued on 29 November 2007.[4] The entity named on the certificate (in both Tongan and English versions) was, as Mr Vunipola alleged: “KOMITI ‘AKAPULU ‘IUNIONI ‘AE VAHE TONGATAPU INCORPORATED”.
  2. Mr Mataele produced the certificate. He deposed that:
  3. In cross-examination, Mr Mataele referred to this matter as “just a translation issue” and that there was “no change in name”.
  4. ‘Uate Halatoafa was first elected President of the Sub-Union in 2007/8. He recalled the 2013 amendments to the Constitution as approved by the members of the Sub-Union at that time and which he filed with the Registrar for Incorporated Societies.
  5. There was no evidence of the Constitution in force as at 2007. Nor was there evidence from any of the members in 2007 as to the reason for the name of the society being as it appears on the certificate. Equally, there was no evidence of any person, including Mr Vunipola, ever raising any issue as to the validity of the Sub-Union’s incorporation (or existence) prior to the commencement of the instant proceeding. Mr Vunipola sought to explain that by reference to having made a number of requests of the Sub-Union’s management over the past few years for a copy of its Constitution but was only provided with one a couple of weeks before the 2019 AGM. Even then, he did not raise this issue at that AGM.
  6. Messrs Mataele and Faka’osi gave evidence that on 20 April 2021, the Sub-Union conducted a meeting in relation to this issue during which the members unanimously voted to correct the name of the Sub-Union for the purpose of its incorporation pursuant to the Incorporated Societies Act to its English name “Tonga Rugby Football Sub-Union Incorporated”. On 21 September 2021, Mr Faka’osi wrote to the Registrar of Incorporated Societies[5] requesting the name change. A copy of the minutes of the Sub-Union’s meeting was attached to their affidavits. On 22 September 2021, the Registrar issued a certificate of incorporation bearing the English name and noting that the Sub-Union was formerly registered on 29 November 2007 in its Tongan name. When Mr Edwards indicated during the trial that the corrected certificate would be produced, Mr Vunipola said that he was “not fully satisfied”.

Submissions

  1. Notwithstanding the registered change of name, Mr Vunipola maintained that the 2007 incorporation of the Sub-Union in a name which did not match that provided in clause 1 of the 2013 Constitution means that the Sub-Union, by its current name, “is a completely new society”, and that by extension, the previous entity was “illegal” and thus the elections conducted at the 2019 AGM were invalid.
  2. Mr Edwards submitted, in summary, that:

Consideration

  1. This claim proceeds from a premise that the existence of the Sub-Union and the validity of its acts depends upon the name by which it was incorporated pursuant to the Incorporated Societies Act. That premise is erroneous.
  2. By analogy to the discussion in the related proceedings of Vunipola v Tonga Rugby Union Incorporated [2021] TOSC 141,[6] the Sub-Union’s Constitution is ‘a contract between it and its members which creates rights and obligations capable of both enforcement and waiver. Members are bound by the society’s rules, whatever those rules may be.[7] As a result, the Court has jurisdiction at law, in addition to s 21 of the Incorporated Societies Act,[8] to determine disputes between a society and member/s.[9]’
  3. The Sub-Union’s Constitution embodies an agreement between its members from time to time as to how the objects of the Sub-Union are to be effected, and for the regulation of their respective rights, roles and obligations in furthering those objects, including the procedures for appointment of office bearers and members of the Executive Committee and the conduct of annual general and other meetings.
  4. Clause 2 of the Sub-Union’s Constitution is entitled “Legal Status”. By clause 2(i), the members of the Sub-Union agreed that it would be incorporated under the Incorporated Societies Act. Neither that provision or clause 1 are expressed as conditions precedent for the Sub-Union’s existence or the validity of any of its acts or operations.
  5. The preamble to the Incorporated Societies Act describes it as an Act to make provision for the incorporation of societies which are not established for the purpose of pecuniary gain. Section 3 provides that any society consisting of not less than 5 persons associated for any lawful purpose but not for pecuniary gain may, on application made to the Registrar, become incorporated as a society under the Act. No such application shall be made except with the consent of a majority of the members of the society. Those initial requirements alone recognise the existence of a society, irrespective of whether it becomes incorporated. Section 5 prescribes the requirements for a society’s rules, which includes its name. Section 6 requires the rules to be included with any application for incorporation. Pursuant to s. 8, every certificate of incorporation issued under the seal of the Registrar shall be conclusive evidence that all statutory requirements in respect of registration have been complied with, and that the society has been duly registered and incorporated under the Act.
  6. Importantly, s. 9 provides that upon the issue of the certificate of incorporation, the subscribers to the rules of the society, together with all other persons who are then members of the society or who afterwards become members of the society in accordance with the rules thereof shall, as from the date of incorporation mentioned in the certificate, be a body corporate by the name contained in the rules, having perpetual succession and a common seal, and capable forthwith, subject to the Act, and to the said rules, of exercising all the functions of a body corporate and of holding land. In other words, under the Act, upon its incorporation, the Sub-Union became a body corporate by the name shown in its Constitution. If that name in the 2007 version of the Constitution (which, as noted, was never tendered in evidence) was the same as that stated in clause 1 of the 2013 version, then the Sub-Union was always to be known as the Tonga Rugby Football Union Incorporated.
  7. Section 11 provides for a change of name, in accordance with s. 21, where it is identical to or nearly resembles the name of another other society, company or body corporate.
  8. Section 13 identifies the primary purpose of incorporation, namely, to protect the members of the society from liability in respect of any contract, debt, or other obligation made or incurred by the society.
  9. Finally, s. 21 permits a society to alter its rules in a manner provided by the said rules, but subject to the provisions of the Act. Here, clause 15 of the Sub-Union’s Constitution prohibits alteration save by a two thirds majority vote at an AGM or Special General Meeting.
  10. The change of the Sub-Union’s name on the certificate of incorporation did not involve any alteration of its Constitution. It merely gave effect, in the English translation, to clause 1 of its Constitution. The notation by the Registrar on the new certificate issued on 22 September 2021 makes plain that it is the same society formerly known by its Tongan name and now by its English name as stated in its Constitution. That correction has no bearing on the validity of the 2019 AGM (or any other for that matter), nor was it a matter which required a vote by special majority or otherwise. It was simply a matter which fell within the broad general power conferred on the Executive Committee by clause 8(i) of the Constitution.
  11. Mr Vunipola’s contention (“a completely new society”) required not just a correction to the Sub-Union’s name in accordance with its Constitution, but a ‘completely new’ Constitution.
  12. For those reasons, the first claim fails.

Second Claim

  1. By their second claim, the Plaintiffs allege that:

“The legality of Uate Halatoafa, former President of Tongatapu Sub-Union chairing the Tongatapu Rugby Sub-Union Annual General Meeting of 18 December 2019 was challenged by the TRU’s ICEO, Fe’ao Vunipola. It was clarified that since Kolofo’ou RFC whom the former President represented, had not participated fully in the Tongatapu Sub-Union Rugby Competition in one year during the period 2016-2019, they had therefore lost their affiliation. Tongatapu Rugby Football Sub-Union Incorp’s Constitution Clause 10(iv &v) stipulates that:

a. 10(iv) Any clubs that had lost their affiliation status or had not participated fully in the club competition in one year or being disciplined for not complying with the Sub Union rules, will have to re-apply to be admitted as an affiliated club as per rule 10(v)

b. 10(v) Any club willing to confirm to this Constitution and Rules shall be eligible to be admitted as affiliated clubs but before being admitted as affiliated such clubs must be duly proposed and seconded by Delegates of two affiliated Premier Clubs and such proposal in the form set out hereunder must be handed to the Secretary of the Sub-Union fourteen days before the date of the AGM. The form must be accompanied by a copy of the Constitution of the Club as prescribed in the Union Rules together with the names of the current Clubs Officials and Club Colours.

c. Furthermore, Tongatapu Rugby Union Club Competition Rules and Regulations for 2016 stipulates in clause 3.2, The President for Tongatapu shall be selected only from Premier Clubs that had continuously competed in the Premier Division in five years or more. Kolofo’ou RFC had been relegated from the Premiership since 2012/2013 Rugby Competition. (Ngele’ia and Malapo are excluded)

...

d. In the occasion that a member of the Executive Committee’s rugby club that he represented ceased operation, he will automatically lose his position and the Executive Committee will nominate his replacement. Kolofo’ou RFC during the period 2016-2019 they, had failed to be participated fully in the club competition in one year.”

Evidence

  1. The AGM was held at the Kolomotu’a club home ground. A list for signatures of attending delegates was placed at the bottom of the stairs to the club house. The meeting commenced around 5 pm. The Chairman, Uate Halatoafa, opened the meeting and welcomed the delegates. Mr Vunipola then immediately launched a challenge to Mr Halatoafa chairing the meeting. The intended challenge had not been included on the agenda for the meeting nor had Mr Vunipola lodged a motion to that effect no later than 21 days prior to the meeting as required by clause 11(d) of the Constitution. Mr Vunipola insisted that his motion be heard. According to Mr Halatoafa and the other Defendants and their witnesses who gave evidence on this issue, Mr Vunipola did not ask for his motion to be put to a vote on whether to waive the prior notice rules. Even though neither Mr Vunipola and Mr Huni deposed to Mr Vunipola ‘submitting his motion to the Chairman for his consideration’, Manu Vunipola deposed that his brother did so and that “[T]he motion was seconded by Mr Vunipola’s supporters”.[10] During their cross-examination, Mr Vunipola and Dr Ta’ai stated that the motion was properly tabled and that it was seconded. However, Dr Ta’ai could not recall who seconded the motion, because he said it “came from the back of the room”. In any event, the meeting did not vote on Mr Vunipola’s motion.
  2. Notwithstanding, Mr Vunipola argued that Mr Halatoafa was not entitled to chair the meeting because his club, Kolofo’ou, did not field a team in the 2016 competition and had therefore ‘ceased to exist’. Mr Vunipola refused to allow Mr Halatoafa to respond nor was he prepared to hear from the delegate from Kolofo’ou on the issue. Arguments erupted and a scuffle among some broke out. Mr Halatoafa resisted the challenge and insisted that as it was his last meeting, he would continue chairing the meeting up to the election of the new office bearers. After calm had been restored, the financial statements were tabled and the elections proceeded, which are the subject of the balance of the Plaintiffs’ claims.
  3. There was no evidence that the Kolofo’ou club had ever formally ‘lost’ its affiliation as a member of the Sub-Union or that it had been required to re-apply. Mr Vunipola said he knew nothing about that, and that registration was “up to the Secretary”. He agreed, however, that neither he nor anyone else for that matter ever challenged Kolofo’ou’s status as a club member of the Sub-Union at any time after 2016. Mr Vunipola’s challenge at the 2019 AGM was not to Kolofo’ou’s continued membership, but to Uate’s eligibility, as a representative from Kolofo’ou RFC, to remain as President of the Sub-Union or to chair the meeting.
  4. Mr Vunipola sought to explain the timing of his challenge as being due to his ignored requests over a number of preceding years for a copy of the Sub-Union’s Constitution. At one stage in cross-examination, he said that he went to the Ministry to obtain a copy of the Constitution some weeks before the AGM. Later, he amended that evidence in line with his primary affidavit,[11] where he deposed to having obtained a copy from the office of the TRU.
  5. Mr Halatoafa said that Kolofo’ou played in the premier division from 2007 to 2015. He agreed that it did not play in 2016 but that it had gone on to compete in the senior division since 2017. Since 2019, the structure of the competition had been changed by the new Board so that all teams now play in the premier division. As such, he said, Kolofo’ou had continued to participate in the Tongatapu competition throughout. That evidence was uncontroverted.
  6. Mr Halatoafa denied Mr Vunipola’s suggestion that Kolofo’ou had been relegated from the premier to the senior division between 2013 and 2016. He added that Mr Vunipola was residing in the UK during that period. However, during his cross-examination, Mr Akau’ola, the then Secretary of the Sub-Union, agreed that Kolofo’ou was relegated to the senior division in 2013 but that “it was still in the competition”. He added that Kolofo’ou had competed in the premier division for almost 100 years prior to relegation. That evidence was also not challenged.
  7. Mr Halatoafa and Mr Taka, a former coach of the Kolofo’ou club, gave evidence that Mr Vunipola’s club, Tavatu’utolu, had not participated in either of the 2020 or 2021 seasons. Mr Vunipola agreed. However, and like many other clubs over the years which had come and gone often due to players going overseas for work opportunities, Tavatu’utolu had not lost its affiliation either.
  8. The evidence about the provenance, meaning and effect of the 2016 Regulation relied on by Mr Vunipola was less than clear. [12] The Regulation comprised a single page document in the Tongan language. There were differences between the parties during the trial and in their submissions about the correct translation of parts of the Regulation. Those differences have been resolved by a translation prepared by the Court’s interpretation staff.
  9. Relevantly:
  10. When Mr Vunipola asked Mr Halatoafa why he was elected President in 2016 when Kolofo’ou did not compete that year, Uate explained that it was likely he was elected prior to the Regulation coming into force. Other evidence, accepted by the Defendants, suggested that the regulation was created prior to the 2016 AGM. The minutes of that meeting were never produced. It was common ground, however, that Uate’s position as President was never challenged during any of the 2017 or 2018 AGMs, which Mr Vunipola attended.

Submissions

  1. In his submissions, Mr Vunipola repeated the second claim as recited above from the Amended Statement of Claim.
  2. Mr Edwards submitted that, for the following reasons, there was no breach by, nor any impediment to, Uate Halatoafa being the President at his last meeting on 18 December 2019 and that Mr Vunipola had misinterpreted the rules relied upon:
  3. In reply, Mr Vunipola denied Mr Edwards’ submission that the Regulation was confined to establishing a tournament committee. Mr Vunipola submitted that the Regulation was “connected directly with” the Sub-Union’s Constitution.

Consideration

  1. This claim raises the following issues which are addressed in turn.

(a) Was Mr Vunipola entitled to challenge the validity of Mr Halatoafa’s presidency at the AGM?

  1. Mr Vunipola was not entitled to raise his challenge as and when he did. Clause 11(d) of the Constitution required that he deliver his motion to the Secretary 21 days before the date of the AGM. He did not do so. Clause 11(f) does not assist. On its proper construction, clause 11(f) would only have prevented the AGM from being deemed invalid had, for example, Mr Vunipola’s late ‘motion’ to challenge the validity of Uate’s Presidency been considered and voted upon, notwithstanding it was not delivered in accordance with clause 11(d), and if a majority of the members present at the meeting agreed to waive that requirement. There was no evidence of any such agreement. On the contrary, the purported motion and Mr Vunipola’s non-compliance with clause 11(d) was never put to a vote at all. There is no provision in the Constitution, nor did Mr Vunipola attempt to identify one, that required the meeting to consider his late motion.

(b) Did the Kolofo’ou RFC’s failure to play in the 2016 season automatically result in the loss of its affiliation as a member club of the Sub-Union?

  1. No. Clause 10(b) of the Constitution required Kolofo’ou RFC to re-apply to be admitted as an affiliated club. That requirement, like any other, unless expressly provided to the contrary, was able to be waived by the Sub-Union and its Executive Committee. The undisputed fact that the Kolofo’ou RFC has been permitted to compete in every season since 2017 to date is clear evidence of waiver of the requirement to re-apply. Alternatively, by proposing to compete in the 2017 season, and by the attendance of its representatives at AGMs since,[14] the Sub-Union impliedly accepted Kolofo’ou as a ‘re-admitted’ affiliated club.
  2. Therefore, Mr Halatoafa was not automatically disqualified from holding the position of President when Kolofo’ou did not compete in 2016.

(c) Alternatively, do clauses 3.2 and 3.8 of the 2016 Regulation apply?

  1. The legal status of the 2016 Regulation document is doubtful. Contrary to Mr Edwards’ submission, I tend to agree with Mr Vunipola that when read as a whole, it is likely that the Regulation was not confined to just a tournament committee. In part, it mirrored certain provisions of the Constitution (e.g. quad annual elections of the President, Secretary and Treasurer; and differential voting rights between the representatives of the Premier and Senior clubs). However, other provisions, such as clauses 3.2 (requiring the President to be nominated from those Premier clubs who had been members for five consecutive years or more) and clause 3.5 (where a member of the chief committee could be unseated by a 60% vote of the Premier teams only) are clearly inconsistent with or purportedly additional to the established provisions in respect of those matters within the Constitution. Clause 15(i) of the Constitution provides that it and any Rules shall not be altered, added or rescinded except by two thirds majority vote at an AGM or special general meeting. The evidence, such as it was, about the provenance of the 2016 Regulation did not provide any certainty about whether clause 15 had been complied with.
  2. However, as this issue was never fully ventilated in either the pleadings or during the course of the trial, I will proceed on the assumed basis, and only for the analysis of this claim, that the relevant provisions were valid and binding.
  3. First, in relation to clause 3.2, there was undisputed evidence that the Kolofo’ou RFC had been a Premier Club for more than five consecutive years prior to its relegation in 2013 (or 2016). Neither party contended that on its proper construction, clause 3.2 required those five consecutive years to immediately precede and culminate in the year of the subject AGM (here, being 2016). As Mr Akau’ola explained, the rationale for the ‘rule’ was to ensure that Presidents were only elected from the more stable clubs. There was no suggestion that the Kolofo’ou RFC was not one of those.
  4. Second, in relation to clause 3.8, I do not accept that just because the Kolofo’ou RFC did not compete in the 2016 season, that it 'died' or became defunct. As noted above, the very fact that the club went on to compete in the 2017 season and since, belies any suggestion that, in 2016, it ceased to operate. As the evidence in relation to other clubs (including Mr Vunipola’s) explained, from time to time, certain clubs were unable to field full teams during a particular season, or part thereof, due to external challenges such as team members going overseas for seasonal work. That does not automatically mean, and Mr Vunipola understandably did not say otherwise, that those teams ceased to function for all time.
  5. For those reasons, Mr Halatoafa was not disqualified from holding the position of President.

(d) If Mr Halatoafa was disqualified from holding the position of President, did his chairing the 2019 AGM invalidate the meeting and election of office bearers and others during the meeting?

  1. However, if I am wrong about any of those findings in relation to Mr Halatoafa’s eligibility to hold the position of President, his notional disqualification could not have invalidated the 2019 AGM. That is because the purpose of the meeting was to elect new office bearers, including the President. Therefore, and in any event, Mr Halatoafa’s presidency came to an end at the meeting. Mr Halatoafa had nothing to do with the actual conduct of the elections in which Mr Mataele was elected as the new President. The agenda for the AGM was prescribed by clause 11(g) of the Constitution and there was no evidence that the order of business concerning elections of office bearers was not followed. Mr Vunipola’s suggestion that Mr Halatoafa’s presence at the AGM affected ‘the tone’ of the meeting was unsubstantiated by any evidence. The conduct of the election for President is the subject of the Plaintiffs’ third claim, in which they have not made any allegation against Mr Halatoafa.
  2. For those reasons, the second claim fails.

Third Claim

  1. By their third claim, the Plaintiffs allege that:

“During the Tongatapu Rugby Sub-Union’s AGM of 2016, the other Office Bearers as per Clause 7 were not elected.

These were Patron, Secretary, Deputy Secretary, Treasurer, Deputy Treasurer, Hon. Solicitor.

It was that 6 of the Office Bearers above were not elected in this AGM although it should have been elected quad-annually at the AGM of the Sub- Union as per clause 7 of Tongatapu Rugby Sub-Union Incorporated’s Constitution.

It was that 5 other members of the Executive Committee were not elected in this AGM although it should have been elected quad-annually at the AGM of the Sub-Union as per clause 7 of Tongatapu Rugby Sub-Union Incorporated’s Constitution.

It was known that 5 members of the Executive Committee were elected during the routine weekly meetings of Tongatapu Rugby Sub-Union. This action was not in accordance with Tongatapu’s Constitution hence their attendance in the Tongatapu AGM of 18 December 2019 was unconstitutional.

TRU’s ICEO, Fe’ao Vunipola again challenged the legality of the presence of the 5 Executive Members in the Tongatapu AGM of 18 December 2019. It resulted in Aisea Aholelei and Manu Vunipola leaving the meeting whilst Manu Mataele, Filokalafi Akau’ola and Akimeta refused to leave.

According to the Minutes of the AGM 18 December 2019, the election of the President of Tongatapu Sub-Union was carried out with the below as recorded:

Total Members present = 45

Executive Members present and bar from voting = 5

Voting Result:

i. Manu Mataele = 22

ii. Talamai = 21

Correct Numbers of Voters who had the right to vote = 40. It was obvious that either the 3 Executive Members vote, or the Counting of Votes was simply incorrect.

It is recommended that the Attendance List showing Signatures of Members should be brought in to be scrutinised.”

Evidence

  1. This claim appears to raise issues in relation to the election of office bearers and Executive Committee members in 2016 and, the main focus of attention, the AGM in 2019.
  2. Mr Vunipola and his witnesses deposed that at the Sub-Union’s 2016 AGM, the only office bearers elected were the President (Mr Halatoafa) and Vice President (then Dr Ta’ai). He said that the other positions, which pursuant to clause 7 of the Constitution were due for election every four years, including the five other members of the Executive Committee, should have been the subject of elections at that meeting but were not. For that reason, he said, the attendance of those others, including in particular, Mr Mataele, at the 2019 AGM was ‘unconstitutional’. He deposed that he challenged “the legality” of their presence at the AGM, and that after much debate, Aisea Aholelei and Manu Vunipola left the meeting while Manu Mataele, Filolafi Akau’ola and Tomasi ‘Akimeta refused to leave. Like much of their affidavit material, Mr Huni, Manu Vunipola and Dr Ta’ai repeated Mr Vunipola’s statements verbatim.
  3. ‘Aisea ‘Aholelei gave evidence that prior to the vote for President taking place, Mr Vunipola and his supporters accused the Kolomotu’a club of having too many representatives at the meeting. Therefore, to avoid any controversy, and because he was there in a different capacity (TRU board member and town representative), ‘Asea left the meeting and waited outside while that vote was being conducted.
  4. When asked why he believed that all the positions for office bearers and the other five members of the Executive Committee were due for re-election at the 2016 AGM, and whether there were any who had been previously appointed mid-term, perhaps due to a vacancy, Mr Vunipola was unable to answer. He admitted that he had not made any enquiries in that regard and that he had just assumed that all positions were up for re-election. He then suggested that the question was one for the Secretary. When asked for the basis of his pleaded allegation[15] that the five members of the Executive Committee were elected during “the routine weekly meetings”, Mr Vunipola conceded that he did not have any minutes of those meetings. He asserted, however, that he had been “informed by the secretary of the elections”, whom he then added he was not calling to give evidence.
  5. Mr Akau’ola, who was the Secretary of the Sub-Union throughout that period, gave evidence that he no longer had copies of any minutes taken in 2016. However, he recalled that at the 2016 AGM, the President was elected, Olikoni Ta’ai was elected Deputy Chairman, he was elected as Secretary, Morrison Dempsey was elected Treasurer (and was later replaced by Tomasi Akimeta), and that Manu Mataele, Siaosi Atiola, Sione Matamala and Manu Vunipola were elected to the Executive Committee. Mr Akau’ola also exhibited an email from Mr Vunipola dated 15 March 2016 in which he recognised Mr Mataele as an Executive Committee member in 2016.
  6. The minutes of the 2019 AGM were prepared by Mr Akau’ola, the then Secretary of the Sub-Union. Two different versions of the minutes were produced in evidence, including the English translation of one set which were signed by Mr Akau’ola and/or Mr Mataele. Relevantly to this claim, all the minutes recorded that there were 45 attendees and that the vote for President was won by Mr Mataele with 22 votes over Kelepi Talamai with 21. Mr Talamai was never a party to the action, nor was he called to give evidence. He is not known to have complained about the validity of the result.
  7. However, the second set of minutes[16] also contained the names of the delegates and the clubs they represented. Thirty-five were named as representing premier clubs (which were entitled to two votes each) and seven represented senior clubs (which were entitled to one vote each). The final three names, making up the total of 45, were Matani Nifofa of Kolonga, Seluini ‘Iloa of Sila Pelu Ua and Taufa Fukofuka of Mu’a, and were all recorded in parentheses.
  8. The Defendants and their witnesses who gave evidence on the point all said that the members of the Executive Committee (other than Dr Ta’ai who was listed in the minutes as the representative for the Sile pelu Ua club) did not vote. They explained that even though clause 11(l) of the Constitution entitled them to vote, they had all agreed for some time that it would be unfair to do so because it would have the effect of giving their respective clubs an additional vote which they considered was inconsistent with clause 10(vii).
  9. After Mr Mataele had been elected President, Mr Vunipola and his supporters left the meeting.
  10. During his first appearance at the trial, Mr Akau’ola explained that he had some difficulty recalling the relevant events in detail because of the passage of time and he had undergone significant medical treatment, including surgeries, in the interim. He then gave the following evidence, in summary:
  11. By that stage in the evidence, it was necessary to adjourn the trial part heard due to neither side having sufficiently considered the evidential ramifications of the 2016 allegations and the seeming confusion in relation to the numbers recorded in the 2019 minutes of those in attendance compared to those who voted for President.
  12. The Plaintiffs were granted leave to amend the third claim to include, in the alternative, that the election of Manu Mataele was invalid by reason of Matani Nifofā, Seluina ‘Iloa and/or Taufa Fukofuka voting in the election for President when they, or any of them, were not entitled to vote. Despite Mr Edwards’ valid complaint about Mr Vunipola subsequently failing to file a Further Amended Statement of Claim giving effect to that grant of leave, the trial proceeded on the basis of that additional potential for invalidity in the vote.
  13. During the hiatus, a further affidavit was filed from Mr Akau’ola,[19] in which he deposed that:
  14. Mr Vunipola testified that the omission of the list of signatures was a “sign of corrupt and dishonest practice by these Office Bearers in their attempt to seize and retain power and authority at all costs”.[20] He accused Mr Akau’ola of “deliberately destroying” the list of signatures, of having ‘doctored’ the minutes in 2021 during the court proceedings and engaging in perjury and fraud. Mr Akau’ola denied the accusations. Despite being warned of the seriousness of such accusations, Mr Vunipola did not adduce any evidence during the trial to support them.
  15. During his cross-examination, Mr Mataele said that the next day after the meeting, the minutes and the list of signatures were given by the Secretary (Mr Akau’ola) to Mr Vunipola for him to report to the TRU. Mr Vunipola denied ever receiving the list of signatures but agreed that he did then receive a copy of the original minutes (without the names of the attendees).
  16. By the end of that next phase of the evidence, it appeared that confusion about the count remained. However, with Mr Akau’ola’s further affidavit, the Defendants also filed affidavits from 19 attendees who voted for and/or confirmed the 22 votes recorded fin favour of Mr Mataele.[21] There was no challenge by Mr Vunipola to the eligibility of those men to vote or the validity of their votes. Again, Mr Vunipola did not adduce any other evidence to contradict that body of evidence.

Submissions

  1. The focus of Mr Vunipola’s submissions in relation to this claim remained fixed on the absence of the list of signatures. That combined with the absence of any minutes of the 2016 AGM formed the basis for his strident attacks on the credit of Mr Akau’ola. Mr Vunipola made similar, although not quite so trenchant, criticisms of Mr Mataele’s evidence too and refused to accept that Mr Mataele was elected at the 2016 AGM. He also accused Mr Mataele of ‘shifting position’ from describing himself in his brief of evidence[22] as attending the AGM as a 'nominated candidate’ for President (which was not recognised by the Constitution) whereas during his cross-examination Mr Mataele referred to himself as attending as a member of the Executive Committee.
  2. Mr Vunipola advanced a number of combinations and permutations for the 2019 presidential vote count, each based partly on evidence and partly on supposition, but all arriving at conclusions which sought to cast doubt and confusion on the reliability of the result as recorded in Mr Akau’ola’s minutes. In his final iteration, Mr Vunipola submitted that the total of 45 recorded attendees comprised 40 club delegates and five members of the Executive Committee. Of those, it was submitted that Manu Vunipola and ‘Aisea Aholelei left the meeting before the count, which left 43, and that Manu Mataele, Tomasi ‘Akimeta and Filokalafi Akau’ola were not eligible to vote (because they were not validly elected in 2016), leaving 40 eligible votes against the total of 43 recorded.
  3. In his submissions (concerning the fourth claim), Mr Vunipola described the 19 affidavits filed on behalf of the Defendants averring to the 22 votes for Mr Mataele as “meaningless and useless”. He also complained that apart from the one deponent he did call for and did cross-examine (Anderson Sanft, and whose evidence was untouched), he also required Siu Fangupo for cross-examination, but that Siu had not attended court. It is convenient to note here that, during the trial, by the time Mr Vunipola required Siu, he was said to have “gone to sea” and was not expected back in Tongatapu for another few days. Mr Vunipola then said that Siu was no longer required.
  4. The Defendants maintained that the Executive Committee was properly elected in 2016. They contended that that fact had not been challenged at the 2019 AGM or until these proceedings. Mr Vunipola’s asserted challenge to the validity of the election of the other members of the Executive Committee was not recorded in the minutes.
  5. The Defendants submitted that Mr Vunipola’s suggestion that the three Executive Committee members who refused to leave the AGM must have voted illegally or that the votes counted were incorrect should be rejected because of the clear evidence that the Executive Committee members did not vote. Moreover, the unchallenged evidence in the 19 affidavits file on this issue demonstrated that the 22 votes for Mr Mataele were all valid.
  6. In relation to the persons who names were in parentheses (Taufa Fukofuka, Mr Seluini ‘Iloa and Mr Matani Nifofa), and whether they were entitled to vote, Mr Edwards hypothesised that:

Consideration

  1. Although this claim consumed most of the trial, it may be succinctly determined by the following series of findings as integers to solving this apparent puzzle.
  2. First, it is, strictly speaking, unnecessary to determine whether the other members of the Executive Committee were validly elected at the 2016 AGM. That is because I have no hesitation in accepting their evidence that they[24] did not vote at the 2019 AGM. I consider their reason for not voting as being entirely reasonable and fair. It is also a favourable reflection on the manner in which they conducted themselves not only during the 2019 AGM but during their evidence in this proceeding. However, if it were necessary to determine the 2016 controversy, then I prefer the evidence in this regard of the Defendants’ witnesses over that of the Plaintiffs to the effect that they were all validly elected.
  3. Second, I do not accept Mr Vunipola’s criticisms of Messrs Akau’ola or Mataele. While, at times, Mr Akau’ola appeared to have some difficulty with his recollection (for the reasons he gave), his evidence was supported by some contemporaneous documents. There was no motive for him to deliberately destroy or discard the list of signatures when the set of minutes he produced with the names of all the delegates was ample evidence of those attendees. Moreover, Mr Vunipola did not at any time suggest that any of the named delegates did not attend the meeting. Similarly, I found Mr Mataele to be an impressive witness who gave clear and forthright evidence.
  4. Third, in the absence of the list of signatures, the names of the attendees in the expanded minutes are the best evidence available. I do not accept Mr Vunipola’s unfounded allegation that those minutes were ‘doctored’ (as he put it) in any way. The starting point therefore in the calculation of the count is that there was a total of 45 delegates comprising 35 from the Premier clubs, seven from the senior clubs and the three remaining representatives whose names were in parentheses. I accept on the evidence, that apart from Dr Ta’ai who was named as a representative of his club, none of the other Executive Committee members were named in the list of attendees.
  5. Fourth, I accept the unchallenged evidence that none of the other Executive Committee members, who attended the meeting, voted for President, including Mr Mataele (for himself).
  6. Fifth, from the 45 named attendees, Mr Akau’ola was consistent and certain that the two delegates from Ha’asini delegates (Siale Tu’i and Frances Fiva) did not vote. Mr Vunipola did not suggest otherwise. That brings the total number to 43.
  7. Sixth, I accept the unchallenged evidence from the 19 affidavits filed confirming the 22 votes for Mr Mataele. In that regard, Mr Vunipola did not suggest that any of the men named who voted for Mr Mataele were not entitled to vote or that for some other reason their vote was invalid. The acceptance of that evidence affirms that Mr Mataele received the majority of the votes.
  8. Seventh, given the uncertainty surrounding the three men whose names were in parentheses, that is, whether they were entitled to vote or whether one or other of them did in fact vote, it seems to me more likely than not, that if they did vote, and if any of their votes were invalid, they voted for Mr Talamai.
  9. Accordingly, I am satisfied on the balance of probabilities that Mr Mataele was validly elected.
  10. For those reasons, this claim also fails.

Fourth Claim

  1. By their fourth claim, the Plaintiffs allege that:

“Manu Mataele, President of Halaleva RFC should not have attended the Tongatapu AGM of December 2019. Halaleva RFC had not participated in the Tongatapu Sub-Union Rugby Competition for more than two years. Tongatapu Rugby Sub-Union Incorp’s Constitution Clause 10(iv &v) stipulates that:

10(iv) Any clubs that had lost their affiliation status or had not participated fully in the club competition in one year or being disciplined for not complying with the Sub Union rules, will have to re-apply to be admitted as an affiliated club as per rule 10(v)

10(v) Any club willing to confirm to this Constitution and Rules shall be eligible to be admitted as affiliated clubs but before being admitted as affiliated such clubs must be duly proposed and seconded by Delegates of two affiliated Premier Clubs and such proposal in the form set out hereunder must be handed to the Secretary of the Sub-Union fourteen days before the date of the AGM. The form must be accompanied by a copy of the Constitution of the Club as prescribed in the Union Rules together with the names of the current Clubs Officials and Club Colours.

Manu Mataele has now provided a further affidavit as ordered by LJC Whitten QC clarifying his position. That he was representing Fasi Ma’ufanga RFC to the AGM in lieu of Halaleva RFC.

Manu Mataele in providing his further affidavit unfortunately proved that he breached the Tongatapu Rugby Football Sub-Union Constitution Clause 10 (vii) which specified that a Premier Club shall be entitled to appoint two (2) delegates to attend and vote on all General Meetings. All other clubs shall only be entitled to one (1) delegate on all General Meetings.

TRFSUI AGM Minutes of 18 December 2019 showed Fasi Ma’ufanga had three delegates including Manu, they were: Tesi Lavakei’aho, Soane Havea and not counting Uate Halatoafa, the former President who switched from Kolofo’ou RFC to Fasi Ma’ufanga when he was first challenged about the validity of his position with Kolofo’ou RFC.

Manu Mataele with the extra member in his favour, clearly had a one vote advantage over his opponent.

The above anomaly only strengthens the validity of a relief for Tongatapu Rugby Football Sub-Union to call another AGM and conduct a new election.”

Consideration

  1. By reason of the evidence and findings canvassed above, it is unnecessary to recite the evidence and submissions relevant to this claim in any detail.
  2. For completeness, however, I reitrerate my findings that Mr Mataele:
  3. It follows, therefore, that the Fasi Ma’ufanga Club did not have three delegates voting for it at the AGM.
  4. For those reasons, this claim must also fail.

Fifth Claim

  1. By their fifth claim, the Plaintiffs allege that:

“During the Tongatapu Rugby Sub-Union AGM 18 December 2019, clause 8(f) of Tongatapu Sub-Union Constitution was not complied with in the election of Tongatapu Rugby Sub-Union Board Representatives – Directors.

a) The Minutes of the Meeting confirmed that the Board Members for Vahe Kolo and Vahe ‘Uta were nominated and elected by the General Meeting Representatives rather than nominated by the Executive Committee members as required by Clause 8(f) of the Sub-Union’s Constitution.

b) The constitution clause 8(f) stipulates that the Executive Committee shall nominate Board Members of the Union for approval at the appropriate General Meeting of the Sub-Union.

One can say that because of the above breach in TRFSU constitution, the vetting process of prospective Directors were bypassed and TRU denied of having the best qualified candidates elected to the Board of Directors.

In light of the above issue being raised, Tongatapu Rugby Sub-Union shall call another Annual General Meeting according to their Constitution and undertake new elections as soon as practicable and to be called and monitored by the World Rugby Observer and another Independent Party.”

Evidence

  1. After the office bearers and members of the Executive Committee were elected, the delegates were divided into five groups in accordance with the districts within which their respective clubs were located. The delegates then selected their five representatives for the Tongatapu districts to attend the AGM of the TRU. The final elections were for the positions of town and country representatives. ‘Aisea ‘Aholelei and Maluafisi Falekaono were nominated, respectively, for those positions. ‘Aisea was elected unanimously. Maluafisi won over Dr Ta’ai, six votes to five.
  2. Mr Vunipola, who left the AGM with his supported after the vote for President, deposed in accordance with his pleaded claim. Dr Ta’ai deposed that the procedure adopted was not in compliance with clause 8(ii)(f) of the Constitution and, as a result, he “lost out” to the other candidate.[25]
  3. During the hiatus in the trial, the Plaintiffs filed an affidavit from Isileli Fatani. When the trial resumed, Mr Edwards complained that Mr Fatani’s affidavit had not been served and objected to it being received into evidence. However, after considering the affidavit, Mr Edwards did not require Mr Fatani for cross-examination. Mr Fatani deposed to witnessing a similar process in 2017 during one of the Sub-Union’s “weekly progress meetings”. He also opined that the process “by-passed” the “vital procedure” conferred by clause 8(ii)(f) whereby the Executive Committee, with its power to nominate such Board representatives, “had no say in the nomination”.
  4. During their cross examination, Manu Mataele, Aisea Aholelei, Malu’afisi Falekaono and Siaosi Faka’osi explained that the nomination for TRU Board members was undertaken by the delegates at the AGM, divided into their five districts, because each group “knew better than the Executive Committee who the best candidates were to represent their clubs”. They also noted that there was no objection to the procedure during the AGM.

Submissions

  1. In his primary submissions, Mr Vunipola essentially repeated the claim. However, in his reply submissions, Mr Vunipola added that the procedure adopted breached clause 8(f) of the Constitution because it “stipulates that the Executive Committee shall nominate Board members of the Union for approval” at the appropriate AGM of the Sub-Union.
  2. Mr Edwards submitted that while the Executive Committee has the power to nominate Board members, it does not elect nor appoint them. Approval of the appointment must come from the General Meeting, not the Executive Committee. Therefore, it was submitted that the election of Messrs Aholelei and Mr Maluafisi by the members at the AGM was not a breach of the Constitution.

Consideration

  1. Although there may be a great deal of practical sense in the rationale for the procedure adopted at the AGM as explained by the Defendants’ witnesses, the Court is only concerned here with whether the procedure contravened the Constitution.
  2. In my view, it did not, for three reasons.
  3. Firstly, the interpretation of clause 8(ii)(f) contended for by the Plaintiffs has the effect of inserting the word “only” in the chapeau to clause 8(ii) so as to read, in terms, that only the Executive Committee shall have power to nominate representatives ... for approval at the appropriate AGM. Plainly, the clause does not state that. It simply lists a number of specific powers of the Executive Committee in addition to the general powers provided by clause 8(i).
  4. Secondly, clause 11(g)(vi) provides that the agenda for the AGM shall include, among other things, "nomination of names to be confirmed as representatives of the Sub-Union to the Board of the Union". Therefore, it is contemplated that nomination of the representatives can occur during the AGM, in other words, by the members attending. The minutes of the AGM did not record, nor was there any other evidence, that the Executive Committee nominated any representatives for approval. It is difficult to see how any nominations by the previous Executive Committee could be binding on any new incoming committee elected at the AGM. It is even more difficult to see how any such nominations could bind the delegates who are there to elect the representatives. For example, if any of the nominations presented by the Executive Committee were not approved or confirmed by the members at the meeting, then it would be entirely open (and necessary) for the members to nominate their own representatives as occurred here.
  5. Thirdly, just as any other power conferred on the Executive Committee could either be exercised or waived, it is clear here that once the new Executive Committee was elected, its members either sanctioned or at least acquiesced in the procedure which followed for the nomination and election of the relevant Board representatives by the delegates in their district groups. Therefore, even if as the Plaintiffs contend, only the Executive Committee had the power to nominate Board representatives (which in my view on the proper interpretation of clause 8(ii)(f) was not the case), in this instance, that power was waived.
  6. Accordingly, this claim also fails.

Result

  1. The Plaintiffs’ claims are dismissed.
  2. The Plaintiffs are to pay the Defendants’ costs of the proceeding to be taxed in default of agreement.

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NUKU’ALOFA
M. H. Whitten KC
25 October 2022
LORD CHIEF JUSTICE

[1] Amended Statement of Claim dated 14 April 2021.

[2] CV 28 of 2021.

[3] Paragraph 11(v) of Mr Vunipola’s affidavit in response, 14 October 2021.

[4] Cb 28.

[5] Addressed as the Chief Executive Officer of the Ministry of Trade and Economic Development.

[6] Referring to Viliami Tonga & Ors v Tonga Rugby Football Union & Anor (CV 15/2016, 3 October 2017, per Paulsen LCJ), in which Mr Vunipola was the second Defendant.

[7] John v Rees [1969] 2 All ER 274 at 298.

[8] Referred to in Tonga v TRU, ibid, and which provides that, on an application by a member of a society, if the Court is satisfied that an amendment to the rules of the society has not been duly made in accordance with its rules or the Act, it may in its discretion 'declare that alteration to be void in whole or in part', order that registration of any alteration be cancelled and give such directions and make such provisions as seem just in the circumstances of the case'.

[9] [33] citing 'Laws of Societies' by Mark von Dadelzen, 3rd Ed, LexisNexis at p 55 and Taumoepeau and ors v Sika and ors (unreported Supreme Court, CV 43/2014, 11 May 2016, Paulsen LCJ).

[10] [9]

[11] [16]

[12] Cb 50. FE’AUHI ‘AKAPULU ‘IUNIONI FAKALAPU ‘A TONGATAPU.

[13] Fakataha Lahi

[14] About which there was no evidence to the contrary.

[15] [14(4)]

[16] Commencing at cb 56.

[17] Such as Olikoni Ta’ai.

[18] Which Manu Mataele also recalled.

[19] Sworn 22 July 2022.

[20] Affidavit of Mr Vunipola sworn 1 June 2022 at [11].

[21] Siu’ivahamama’o Fangupo (who voted with Siaosi Atiola who was overseas at the time of his affidavit), Kosema Katavake (who voted with Justin Akau’ola who was overseas at the time of his affidavit), Maluafisi Falekaono, Simione Maka, Billy Tofavaha, Sitaleki Lu’au, Kasi Fine, Ma’afu Palu, Vili Uhi, Anderson Sanft, Eva Mafi, Siaosi Faka’osi, Soane Havea (who voted with Tesi Lavakei’aho who was overseas at the time of his affidavit), Pitikeni Fungavaka, Lokingi Mavae, Tupou ‘One’one, Sekona Tu’akoi, ‘Elioti Taufa, ‘Semisi Fonua.

[22] [17]

[23] Which was referred to in Mr Edwards submissions as having ‘come from the Defendants’ records’ but was not adduced in evidence.

[24] With the exception of Dr Ta’ai who was recorded in the minutes as being entitled to vote as the representative of his club.

[25] [16]

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