Vohor v Jimmy Tapangararua [2000] VUCA 1; Civil Appeal Case 09 of 1999 (10 May 2000)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

CIVIL APPEAL CASE No. 09 of 1999

BETW>BETWEEN:

SERGE VOHOR and
Other Members of the National Council of Uof Moderate Parties
Appellants

AND:

Hon. WILLIE JIMMY TAPANGARARUA
Defendant

Coram: Mr. Justice Bruce Robertson
Mr. Justice J. von Doussa
Mr. Justice Daniel Fatiaki
Mr. Justice Roger Coventry

Counsel: Jack Kilu for the Appellants
Garry Blake for the Respondent

Hearing date: 10 May, 2000

JER">JUDGMENT

In August 1999, a dispute arose between various members of the UMP. Following an extraordinary National Council Meeting held on the 20^th of August 1999, proceedings were commenced in the Supreme Court by the respondent seeking declarations or Orders as follows:-

"1. A declaration that the National Council of the Union of Moderate Parties does not have the power to pronounce disciplinary sanctions against member of the Party without consulting with the National Disciplinary Committee.

2. A declaration that the purported decisions of the UMP Extra Ordinary National Council held on 20 August 1999, are ultra vires and of no effect.

3. An order quashing the purported decisions of the UMP Extra Ordinary National Council held on 20 August 1999.

4. A declaration that the members of the National Executive Committee of the UMP elected at the 18^th UMP National Congress held at Whitesands, Tanna on 17-23 August 1997 ceased to hold office as of 23 August 1999.

5. A declaration that the members of the National Council of the UMP comprise only the UMP members of Parliament each having only one vote at any National Council Meeting."

There was an application for an urgent hearing and also a summons seeking an order that the present appellants be restrained from giving effect to the resolutions passed by the extraordinary National Council.

There was a hearing on the 30^th August 1999 before the Acting Chief Justice and the following orders were made by consent:-

"1. That the (appellants) be given time to seek and instruct a lawyer to act on their behalf.

2. That Mr. Serge Vohor, the principal (appellant) in this matter, is away in Santo and has not been served with the Summons, the matter does not proceed until he returns to Vila and is properly served.

3. That the resolutions passed on 20 August 1999 by the Union of Moderate Party Extraordinary National Council, and in particular resolutions number 1, 2 and 3 not to enforced and executed on 1 September 1999 nor any other time, until such time this matter is heard by the Court.

4. Costs be in the cause."

On 18^th October, the learned Acting Chief Justice made the following Consent Orders in the case:-

"1. The Consent Orders dated 30 August 1999 are vacated.

2. The Union of Moderate Party ("the Party") and/or its President shall not exclude any eligible members of the Party from attending the Party’s next National Congress at Mele Village, Efate commencing 24 October 1999."

On its face, it would have appeared that this consent arrangement should have settled matters, particularly as it was reached following what were clearly substantial negotiations which had been undertaken to avoid the need for an urgent hearing.

However, on 25^th October, another Summons was filed in the Supreme Court seeking the following orders:-

"1. A declaration that Willie Jimmy Tapangararua, Henry Taga, Vincent Buoulekine, Paul Telukluk, Lucian Letung, Rene Haoul, Morrison Alick, Gilbert Mermer, Charlot Salwai, Fr. Gerard Lemang, Jean Baptiste Buleban, Malachi Russel, Noel Molvis, Jeanby Tranut, Peter Sali and Willlie Roy are eligible to attend the Union of Moderate Party (UMP) National Congress Meeting currently being held at Mele Village Efate, and any other UMP meetings convened in accordance with the Constitution and Rules of the UMP and in accordance with decisions of such National Congress.

2. A declaration that the suspension letter issued by Serge Vohor dated 19 October 1999 are null and void and of no effect.

3. A declaration that the suspension of the UMP eligible members referred to in paragraph 2 is in breach of the Consent Orders dated 18 October 1999.

4. A declaration that pending the election by the current National Congress of the Members of the National Executive Committee, the membership thereof is vacant.

and by way of interlocutory injunction:

5. An order that pending the determination of declarations 1, 2, 3 and 4 above that all meetings of the UMP National Congress, National Council, National Executive Committee be suspended."

Subsequently there was an Amended Summons filed in the following way:-

"1. A declaration that Willie Jimmy Tapangararua, Henry Taga, Vincent Bulekone, Paul Telukluk, Lucian Letung, Rene Haoul, Morrison Alick, Gilbert Mermer, Charlot Salwai, Fr. Gerard Lemang, Jean Baptiste Buleban, Malachi Russel, Noel Molvis, Jeanby Trinut, Peter Sali and Willie Roy are eligible to attend the Union of Moderate Party (UMP) National Congress Meeting currently being held at Mele Village Efate, and any other UMP meetings convened in accordance with the Constitution and Rules of the UMP and in accordance with decisions of such National Congress and to vote on any motion concerning their suspension or attempted suspension.

2. A declaration that the suspension letters issued by Serge Vohor dated 19 October 1999 are null and void and of no effect.

3. A declaration that the purported suspension of the UMP eligible members referred to in paragraph 2 is in breach of the Consent Orders dated 18 October 1999.

4. A declaration that pending the election by the current National Congress of the Members of the National Executive Committee, the membership thereof is vacant.

5. A declaration that any decisions taken by the UMP National Council, Disciplinary Committee, and National Congress in pursuance of the purported suspension of the members named in paragraph numbered 1 are null and void and of no effect.

and by way of interlocutory injunction:

6. An order that pending the determination of declarations 1, 2, 3, 4 and 5 above that all meetings of the UMP National Congress, National Council, National Executive Committee be suspended forthwith.

7. An order that the enforcement of any and all declarations taken by the UMP National Council, Disciplinary Committee and/or National Congress be stayed pending the determination of the matter before this Court."

By that stage it was clear that the Congress in question was already in session.

The Acting Chief Justice was out the jurisdiction and there was an issue as to what should be done.

Justice Marum heard the matter and immediately made orders and indicated that he would give reasons in due course.

In those he noted three options were available to him at the time:-

"1. To hear the whole matter including the pending matter before the other Judge.

2. To hear the interlocutory matter or not.

3. All matter adjourned pending the arriving of the other Judge."

The Judge noted "I decided and ruled not to adopt 1 and 3 and adopt 2 and that was to proceed to hear the Summons and deal with the interlocutory matter."

It is interesting to note that the Judge was pains to make clear that he was not purporting to hear or determine any issues arising out of the initial proceedings filed in August which had still not being resolved and of which the Acting Chief Justice was all ready seized.

The Judge was faced with the question of "what was to be made of a suspension letter authorised by the President of UMP on 19 October 1999 which was one day after the Consent Orders of 18 October. The letter stated the reasons of the suspension to be as follows:-

"Subject: Your suspension for not respecting the National Council Resolutions 1 and 2 of the National Council meeting of the 20^th of August 1999 and with reference to chapter 6 section 23 and chapter 12 section 45 of the party’s constitution. I Serge Vohor, President of the Union of Moderate Party; under the power conferred by me by resolution No. 3 of the National Council Meeting of the 20^th of August 1999 I hereby suspend you as member of Union of Moderate Party with effective from 1^st of September 1999 until a decision is made by the National Congress of the at Mele from the 25^th October 1999.

I would also like to inform you that if you were a member of either the National executive or National council of the party, you are restrain to attend to any such meeting to avoid conflict of interest."

The Judge concluded that the suspension were related to matters which had still not been resolved because they were the subject of the August proceeding in the Court. He concluded that in accordance with the Consent Orders of 18 October this action could not be taken.

The Judge said:

"I find that the President of the UMP, Serge Vohor had no power under the Court Order of 18 August 1999 to exclude the Applicant and any other eligible members of the UMP (the Party) to attend by suspending them. And declare that the suspended order issued by Serge Vohor on 19 October 1999 goes against the of the Court of the 18 October 1999 and are null and void and of no effect. I further find that the decision of the National Council of the UMP made on 25 October 1999 on any eligible member of the party goes against the Order of the Court of the 18 October 1999 and are null and void and of no effect. I also find that the National Disciplinary Committee has no power under the said Order of the 18^th October 1999 to exclude the Applicant and any eligible members of the party from attending the National (Congress) and goes against the Order of the Court of the 18 October 1999 and are null and void and of no effect."

The Judge concluded that the relief sought in item 4 of the Amended Summons did not have to be answered so he made the following Orders:-

"1. I declare that all eligible members as mention in paragraph 1 of the amended Summons were eligible members to attend the UMP National Congress now held at Mele pursuant to order of the 18^th of October 1999.

2. I declare that the suspension order issued by Serge Vohor dated the 19^th of October 1999 was made against the order of the Court of the 18^th of October 1999 and are null and void and of no effect.

3. As to paragraph 3, I declare that a suspension in excluding all members to attend the National Congress at Mele goes against the Order of the Court of the 18^th of October 1999.

4. I do not grant the declaration sought in paragraph 4 of the Amended Summons.

5. I declare that the decision made on the 25^th of October 1999 by the National Council of UMP goes against the Order of the Court of the 18^th of October 1999 and is null and void and of no effect and including any decision of the Disciplinary Committee made thereafter on the same matter.

The appeal before us was against the making of the Orders and sought to have them set aside, and judgement entered for the appellants as:-

"1. The declarations 1 to 5 purportedly made by the Honourable Justice Reggett Marum dated 27^th October, 1999 were and each of them are seriously flawed in law and in breach of the Constitution, and invalid and of no legal effect are set aside forthwith;

2. The Respondents hereto may be adjudged to pay the Appellants their costs of the hearing of the Summons dated 25^th October, 1999 the Amended Summons dated 26^th October, 1999 and the costs of this Appeal to be taxed if not agreed."

At the heart of what is complained of is that the learned Judge erred in the October hearing in that he effectively determined the substantive matters from the August proceedings without having heard arguments on the point and without an opportunity for each party to present its position.

The Court has had great difficulty in understanding what the parties are about or what they hope to achieve by this appeal.

There is awaiting hearing the issues raised in August. Both counsel before us agreed that those matters still need to be determined.

We are of the view that it is to misconstrue the position to suggest that Justice Marum effectively determined them or purported to so.

The Judge was at pains to make clear that was not what he was doing. An impossible situation has been created for this Judge. He had to deal with an alleged breach of the Consent Order of the 18^th October.

After a preparatory hearing before the Acting Chief Justice on the 13^th October, the parties had reached an accommodation which is contained in the Consent Orders of the 18^th of October.

On the 19^th October the President and some members of the UMP initiated action which it was argued effectively ignored or breached the terms of the Consent Orders. These letters the respondents did not learn about until 24 October 1999 which was the eve of the Congress.

Whatever might have been in the minds of some people the 19 October letter appeared to do just that. The substance of the 18 October Consent Order was that at the meeting due to be held at Mele on 25^th and 26^th October, everybody who was a member of UMP was entitled to participate and be involved in any decisions which were made. The action of the President on the 19^th October, suspending members, was on its face contrary to that. The Judge so held. He said that unless and until the substantive matters have been disposed of that the parties had all agreed between themselves would apply. There is no question about the jurisdiction of the Court to ensure that the integrity of its orders is maintained. Further the Court will ensure that all litigants follow their own rules and as appropriate give effect to the principle of natural justice. RS Vohor & Ors v. A. Adeng & Ors (Civil Case 75 of 1996) and Korman & Other v. Mensul E. & Ors (Civil Case 106 of 1995) which follow the decision of this Court in Mataskelekele v. Abbil & Ors (Civil Appeal 7 of 1991).

Even now everybody says they want the Acting Chief Justice to get on and determine both issues. Why that was not done months ago, we do not understand. This appeal is an exercise on futility.

What the Judge did was restrain the parties in accordance with their consensual position from taking any unilateral action unless and until the Court had determined the legal rights and responsibilities of everybody involved in the August dispute. It was a matter of common sense and virtually inevitable that the Judge should have placed this degree of restraint on the President and his faction of the UMP until that occurred.

He did not determine the underlying issues. He found a solution to a position which had been created until the substantive proceeding is heard.

This appeal is dismissed. Costs are reserved to be determined as part of the Supreme Court hearing. We direct that the substantive outstanding matter is to be heard with great urgency. The Acting Chief Justice has in the circumstances agreed to hear the substantive issues commencing at 9.00 am on 12 & 13 June 2000. Any outstanding preliminary matters are to be filed within 14 days.

The protective mechanism which was put in place by Justice Marum was an inevitable consequence of the action which was taken. It did nothing more than protect the status quo.

DATED AT PORT-VILA, this 10th DAY of MAY, 2000

Bruce ROBERTSON J.
John von DOUSSA J.
Daniel FATIAKI J.
Roger COVENTRY J.