Vatu v Muele [2006] VUCA 5; CAC 21-06 (1 June 2006)

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

CIVIL APPEAL CASE No.21 of 2006

BETWEEN:

Mr. KARAE VATU, DAVID MELE, DAVID BAOLOLOS, JOHN TAMATA, FRANK LOLE, CHARLIE TAVUE, JOHNSEN BOE, CHRISTIAN MALAN & JOEL PAUL
First Appellants

AND:

SANMA PROVINCIAL COUNCIL
Second Appellants

AND:

Mr. NATU MUELE
First Respondent

AND:

EDWARD ALGRETE, TIMOTHY NOVE, LAWREANCE SOLOMON, JOELI BOEVILVIL, SIMEON SELEIR, BERNARD VIRA, LEON OVA, & MOSES WAYNE
Second Respondents

Coram: Chief Justice Vincent Lunabek
Justice John von Doussa
Justice Daniel Fatiaki
Justice Patrick Treston
Justice Hamlison Bulu

Counsel: Mr. Saling Stephens for the First and Second Appellants
Mr. Jack Kilu for the First and Second Respondents

Date of hearing: 30th May 2006
Date of Orders: 1st June 2006

JUDGMENT

This appeal was listed as a very urgent matter on the assertion of both counsel that the issue involved was a short point of law concerning the proper interpretation of s.12 of the Decentralization Act No. 1 of 1994 (as amended). However as the hearing of the appeal progressed, it became clear that there was no dispute about the meaning of s.12, and that the real issue concerned the application of the section to events which took place at a meeting of the Sanma Provincial Council on 16th May 2006. The opposing parties to this appeal placed different interpretations on those events, and the dispute between them was really one on the facts.

The issue in dispute concerns the outcome of the voting procedure on an item of business properly before the Council. The Council itself is therefore a proper party to the appeal as it must follow the decision of the Court. However, its position should be a neutral one, not siding with either of the disputing groups of councillors. Although the Council is named as one of the Appellants, counsel who represented each of the groups of councillors agreed that there was no need for the Council to be separately represented, and that Mr. Saling Stephens was presenting arguments only for the individual councillors who are the First Appellants.

Section 12 of the Act enacts voting procedures that are commonly adopted in meeting situations. It reads:-

"12. (1) All decisions shall be determined by a majority of the votes of the elected members present. Each elected member present shall have the right to cast only one vote.

(2) The quorum required for meetings of the Council shall be more than half of the total number of elected members.

(3) In case of a tie vote, the Chairman shall have a casting vote."

The following description of meeting procedures and the function of a "casting vote" is taken from the well recognized text book, "Meetings – Procedure, Law and Practice" by Mervyn G Horsley at paragraph 1115:

" In the case of Nell v. Longbottom [1894] 1QB 767, it was held that the common law appears to have provided no way out of the difficulty when the numbers of those voting on either side become exactly equal. Therefore, so that a chairman may be able to exercise a casting vote, express power to do this must be given by the body’s rules or a relevant statute.

Accordingly, to assist meetings to be able to arrive at decisions where voting is equally divided, it is usual for the rules of organizations to expressly provide that the chairman of a meeting shall have a second or casting vote where there is an equality of votes. Many such rules state that the casting vote will apply whether the equal voting is by show of hands or on a poll.

Where the chairman is a member of the body concerned, he has a vote arising from his membership in the same way as every other member present at the meeting. This normal vote is styled a "deliberative vote".

The chairman when exercising his deliberative vote as a member should do so while the other members are voting on the issue.

In practice, some chairmen prefer not to exercise their individual membership vote in the interests of appearing impartial in respect of matters being debated. In such an event, i.e. where the chairman has refrained from exercising his vote as a member, if the voting is found to be equal and the rules do not provide the chairman with a casting vote, it would be irregular if at that stage he were to cast his deliberate vote, thus making it operate as a casting vote in effect. It would not seem to be an invalid vote; but a deliberate vote at that stage may create the reverse of the desired appearance of impartiality which led him to abstain from exercising his right to vote.

Such a circumstance illustrates the hazard which lies in a delay by a chairman in casting his personal vote (i.e. raising his hand), perhaps with a feeling that there may be no need for him to do so. Should it turn out that without his vote there is equality in voting: (a) if the rules do not give the chairman a casting vote his omission to vote has prevented a decision being arrived at; (b) if the rules do give him a casting vote his omission to vote as a member unnecessarily obliges the chairman either to leave the matter undecided or to exercise a casting vote thus forcing him to indicate a decision which opposes the view of half those members who did vote. The principle behind the concept of the chairman’s casting vote, when it was first introduced into regulations and legislation as a " second vote" , was that it could be given only in the event of an equality of valid votes including his own vote, and that it would be used so that a decision could be arrived at; the innovation was drawn from experience in the House of Commons where the Speaker had a deciding vote when the voting was equal although he did not vote in other circumstances.

A chairman is not bound to exercise a casting vote, unless the rules compel him to do so. He may decide not to do so and to announce that the motion has not been carried. In such a case, in accordance with the rules of debate, the meeting should then proceed to its next business, as the voting and declaration of the result has completed the meeting’s consideration of that particular issue: the whole item of business has been disposed of, at least for that meeting."

Against that background, the procedure required by s.12 is clear. Under s.12(1) each member, including the chairman, has the "right" but not the duty to cast one deliberative vote. For instance a member may decide not to exercise the right, and abstain from voting. A chairman will often abstain from voting in the interests of preserving the appearance of impartiality.

When the votes of those who have cast deliberative votes are counted, if there is a tie, then under sub-section 12(3) the chairman has a casting vote. In a practical sense, if the chairman has already exercised his right to cast a deliberative vote under sub-section 12(1) it can be said that he has a "second vote".

However in a situation where the chairman has abstained from voting when the deliberative votes cast under sub-section 12(1) are counted and a tie results, the chairman can only exercise his casting vote under sub-section 12(3). In this situation he only casts, and can only exercise, one vote.

The minutes of the meeting of the Sanma Provincial Council on 16 May 2006 at which the first Respondent was the chairman record the events which give rise to this appeal as follows:

"Folem wan motion we Karae Vatu imuvum mo seconded by Tamata blong lukluk long second agenda blong other bisness (40% Share Niscol) long 4th May 2006.

Chairman iputum long floor mo Council idebetem motion ia long morning:

Resalt:

Insaed long Council chamber long floor, igat 9 mo 8.

Majority long floor igat 9 votes.

Oposition igat 8 against without Chairman and long taem ia Chairman idisaed blong vote wetem ol 8 members ia. Nao ikam long 9 and 9 so Chairman imekem second vote blong hem bageken imekem sei 10.

So long plesia, nara group iakiu blong chalengem matter ia long court."

As forecast, Court proceedings followed. The Appellants on the same day sought from the Supreme Court in Luganville an Order declaring null and void the actions of the Chairman and the Respondents, and an Order restraining the Council from acting on the outcome of the motion which the Chairman sought to achieve by purporting to exercise both his deliberative vote after the first count and then a casting vote.

An urgent hearing was arranged, and the Appellants’ application was heard and decided on 18 May 2006.

The learned primary Judge in his judgment set out his understanding of the events which happened at the meeting. He said:

"On 16th May, Karae Vatu put in a motion. The Chairman put that motion to the floor. The Chairman exercised his voting rights as an elected member in accordance with Section 12(1) by voting for the first time with the defendants’ side of 8 members. Having done so, his vote brought the numbers to 9 votes, hence a tie vote. Under this circumstance, the Chairman exercised his entitlement to a second vote in accordance with Section 12(3), thus increasing the number to 10 on the defendants’ side."

His Lordship concluded:

"Assessing the facts of the case and applying Section 12 of the Act to the facts, I find that the actions of the Defendants were proper and lawful. I disagree with the submissions and arguments raised by Mr. Stephens."

Accordingly the Appellants’ claims were dismissed.

In our opinion the sequence of events recorded in the minutes of the meeting during the voting process is clear. First the Chairman put the motion to the vote of members. Seventeen members cast a deliberative vote in exercise of their right to vote under sub-section 12(1). There were 9 in favour and 8 against the motion. This result indicates that the Chairman chose not to exercise his deliberate vote, i.e. he had abstained from voting when the count of the deliberative votes took place.

According to the minutes the chairman then sought to exercise his deliberative vote so as to change the declared result of the count.

By so doing the Chairman contrived to have the motion subjected to a second round of deliberative voting so as to achieve a tie, and thereafter to a third round of voting at which he purportedly exercised his casting vote so as to reverse the outcome of the first count. This interpretation of what happened at the meeting accords with the sworn statement of the Appellant Karae Vatu filed in support of the application to the Supreme Court. Karae Vatu deposed:

"Ol Defendants oli no wandem tokabaut matter ia nao mifala ivote, ale chairman Natu Muele iluk sei mifala igat 9 mo opposition igat 8 votes, ale emi vote wetem olgeta. Emi castem first vote blong bringem vote blong opposition long 8 iko long 9 after taem igat 9/9, chairman ikirap emi talem sei " mi, mi castem number 2 votes iko long opposition".

There was no application by counsel for the Respondents to cross examine Karae Vatu in the Supreme Court to challenge this evidence. Moreover, the accuracy of the minutes of the meeting of the 16 May 2006 is not disputed.

In our opinion on the factual evidence before the Supreme Court the motion was passed at the first count of the deliberative votes - there was a majority vote – 9 votes for and 8 against. According to the minutes that result was announced.

In accordance with the provisions of sub-section 12(1) that majority vote concluded the voting. There was not a tie vote, and there was no occasion for the Chairman to exercise a casting vote. The Chairman elected to abstain from voting when the motion was put to the floor. Neither section 12 nor the general law permits the Chairman at his option, to ignore the outcome of the count of deliberative votes cast in accordance with sub-section 12(1) so that those who had abstained from voting could participate in a second round of deliberative voting.

We disagree with the conclusion reached by the primary judge, not on his interpretation of s.12, but on his interpretation of the facts. In our opinion the primary judge should have held that on the first vote the Chairman abstained from voting, and that the motion was therefore carried by the announced count of 9 votes to 8.

On the hearing of the appeal Mr. Kilu filed a sworn statement from the First Respondents (the Chairman) in which he deposed:

"I voted as an elected councillor as a result it ended up in a tie vote so pursuant to Section 12 of the Decentralization Act... empowered myself as the Chairman to put a casting vote..."

This statement does not address the question whether, at the time of the first count of deliberative votes, he had abstained from voting. Even if this were a case where it was proper to accept fresh evidence on the hearing of the appeal, the sworn statement of the Chairman would not lead us to a different conclusion. Importantly, his sworn statement does not challenge the accuracy of the minutes of the meeting which we think are decisive of the outcome of this case.

The appeal succeeds. The Orders in the Supreme Court must be set aside. In lieu thereof there should be declarations (1) that the motion concerning discussion of the affairs of NISCOL was carried by a majority of one vote, there being 9 votes for and 8 votes against; (2) that the Chairman had abstained in the voting on that motion; and (3) that there was not a tie vote and no occasion had arisen for the Chairman to exercise a casting vote. The Respondents should pay the costs of the First Appellants in this Court and the Court below.

The formal Orders of the Court are:

1. Appeal allowed.
   
2. The Orders of the Supreme Court made on 17 May 2006 are set aside.
   
3. In lieu thereof we make the following declarations that at the adjourned meeting of the Sanma Provincial Council held on 16 May 2006 –
   
   • (a) The motion concerning the discussion of the affairs of NISCOL was carried by a majority of one vote, there being 9 votes for and 8 votes against;
     
   • (b) That the Chairman had abstained from voting on that motion when it was put to the floor to be voted on; and
     
   • (c) That there was not a tie vote and no occasion had arisen for the Chairman to exercise a casting vote.
     
4. The Respondents to pay the costs of the First Appellants in this Court and in the Supreme Court.
   

DATED at PORT-VILA this 1st day of June 2006

BY THE COURT

Vincent LUNABEK CJ
John von DOUSSA J
Daniel FATIAKI J
Patrick I. TRESTON J
Hamlison BULU J