Vatu v Muele [2007] VUCA 4; Civil Appeal Case 35 of 2006 (4 April 2007)

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

Civil Appeal Case No. 35 of 2006

IN THE MATTER OF:

An Appeal from the Supreme Court of the Republic of Vanuatu

BETWEEN:

KARAE VATU
JOEL PAUL
DAVID MELE
DAVID PAILOLOSO
First Appellants

AND:

CHARLIE TAVUI
JOHNSON TAMATA
JOHNSON BOE
CHRISTIAN MALIU
FRANK LELE
Second Appellants

AND:

LAUREN SOLOMON
BERNARD VIRA
Third Appellants

AND:

NATU MUELE
First Respondent

AND:

JOEL PATH
Second Respondent

Coram: Chief Justice Vincent Lunabek
Justice Bruce Robertson
Justice Hamlison Bulu
Justice Christopher Tuohy
Justice John Mansfield

Counsel: Mr Ronald Warsal for First Appellants
Mr George Boar for Second Appellants
Mr Saling Stephens for Third Appellants
Mr Frederick Gilu and Mr Tom Joe Botleng for Respondents

Date of Hearing: 3 April 2007
Date of Judgment: 4 April 2007

JUDGMENT

Introduction

1. This is an appeal against a judgment of Saksak J in the Supreme Court given on 22nd November 2006 refusing to make orders to the effect that the appellants had not ceased to hold office as members of the Sanma Provincial Council and were entitled to continued payment of allowances.

Facts

2. Section 18C(d) of the Decentralization and Local Government Regions Act 1994 provides:

"If any member of a local government council –

........................

fails to attend 3 consecutive meetings of the local government council or of any committee of the local government council of which he is a member unless he has obtained the prior permission of the local government council to absent himself throughout such period,

he shall cease to hold office."

3. The facts are set out fully in the judgment under appeal. They are not in dispute for the purposes of this appeal. The essential points can be very shortly stated.
   
4. As required by an order of the Supreme Court, a Council meeting was convened for 12 June 2006 and all 18 members were present when it started. It was adjourned to continue on 13 June. On that date, the first and second appellants were not present. As only 9 members were present, there was no quorum and the meeting was further adjourned to 14 June.
   
5. On 14 June, again the first and second appellants were not present and again the meeting was adjourned to the next day, 15 June. Again, on 15 June, the first and second appellants did not attend.
   
6. On 17 July 2006, the first respondent, who was chairman of the Council, wrote to the first and second appellants "to formally inform you that your seat had been vacated pursuant to section 18C(d) of the Decentralization and Local Government (sic) Act No. 4 of 1994 as amended." The letter enclosed a document called a Notice of Vacation of Seats signed by the first respondent which ended: "AND NOW IN EXERCISE OF THE POWERS CONFERRED ON ME AS CHAIRMAN .................pursuant to Section 18C(d) of the ........... Act ....... I NATU MUELE DECLARE THAT YOUR SEAT ......... IN THE SANMA PROVINCIAL COUNCIL IS HEREBY VACATED."
   

The Judgment Under Appeal

7. His Lordship held that the word "meeting" in s. 18C(d) refers to a sitting. It is not used in the same sense as the "meetings", the two annual sessions, each now extending over a period of 21 days, which are referred to in s.8.
   
8. He reached that conclusion on the basis that to hold otherwise would lead to an absurdity and would mean that the section would be practically unworkable.
   
9. He also held that there may still be a sitting for the purposes of the section, even though there is no quorum.
   
10. On both points, he applied the principles outlined by the Court of Appeal in Carlot and Others v. Attorney General and Onneyn Tahi [1988] VUCA 5; CAC 4 of 1988 (21 October 1988)
    
11. He rejected arguments that the respondents had no power to declare the seats vacant. He held that the seats had become vacant automatically due to the absences on 13, 14 and 15 June, not as a result of any notice by the respondents.
    

Fresh Evidence

12. At the commencement of the appeal, Mr Saling Stephens applied for leave to admit fresh evidence, namely, a letter written by himself to the respondents dated 13 June 2006.
    
13. This letter, written on behalf of the appellants, asserted that the respondents had breached certain court orders and stated:
    

"Owing to your decisions and actions which are now deem to be your deliberate intentions to disregard the Court Orders, we hereby advise yourselves that our client will not attend today’s sitting to challenge yourselves actions in Court."

14. It was claimed that this letter was important in that it amounted to obtaining the prior permission of the Council to be absent in terms of s. 18 C(d).
    
15. It is hard to see how this letter meets the test for admission of fresh evidence on appeal in that it was plainly available to the appellants prior to the trial. But in any event, has no probative value.
    
16. The letter cannot possibly be read as a request for permission to be absent. It is an announcement that the appellants would absent themselves.
    
17. Mr Stephens, further argument that mere notification of absence could amount to permission of Council, because it was impossible for the Council to grant permission as it would never have a quorum, is dealt with in relation to the substantive grounds of appeal.
    

Does s. 18C(d) Operate Automatically?

18. Mr Warsal made submissions for the first appellants which were supported by Mr Boar. He submitted that Saksak J. erred in law in holding that s.18C(d) operated automatically without a declaration or notice and thus that the seats had been vacated once the 3 consecutive absences had taken place.
    
19. This argument is based on the proposition that only the Council can grant prior permission for absence, which would have been an impossibility, so that only the Council can declare a seat vacant.
    
20. The words of the Act are perfectly clear. If a member fails to attend 3 consecutive meetings he shall cease to hold office unless he has obtained the prior permission of the Council. The section does not envisage anybody making a declaration. The member ceases to hold office by automatic operation of law once he is absent from 3 consecutive meetings without prior permission. The evidence was clear that the appellants did so absent themselves and that they had no prior permission to do so. No declaration from Mr Muele or the Council or anyone else, could affect the position.
    

The Meaning of "Meetings" in s. 18C(d)

21. Mr Saling Stephens for the Third Appellants in addition submitted that the meetings referred to s.18C(d) were the meetings referred to in s.8, that is, the budgetary meeting commencing in November and the administrative meeting commencing in May, each lasting for up to 21 days. Thus, the argument ran, although the Act contemplates that the Council would sit on up to 21 days at each of those 2 meetings, a member would not be absent if he attended any sitting during the meeting; and even if he missed every sitting of each meeting, he would not cease to be a member until 3 consecutive meetings extending over 18 months had been completed.
    
22. The word "meeting" and the word "sitting" are both used in various sections of the Act. Neither is defined. Sections 8, 12 and 18C(d) refer to meetings in different contexts. Section 14 provides that if a Council is unable to sit for 3 consecutive "sittings" for lack of a quorum, the Prime Minister shall dissolve it. Section 23 provides that members of Councils and committees of Councils are entitled to allowances for each day’s "sittings".
    
23. It is obvious that the Act contemplates that during the two ordinary meetings or sessions each year, there will be separate daily sittings of both Council and committees. Under s.14, a failure to muster a quorum at 3 consecutive sittings within a session is sufficient to trigger the dissolution of a Council.
    
24. Section 8 of the Interpretation Act (Cap 132) provides that:
    

"An Act shall be considered to be remedial and shall receive such fair and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit."

In the context of the Act as a whole, it is clear that when Parliament referred to meetings in s.18C(d), it was referring to the several sittings of the Council which take place during one of the 2 annual meetings or sessions provided for in s.8 or any sittings of an extraordinary meeting.

25. We agree with Saksak J that adopting the contrary interpretation contended for by Mr Stephens would lead to an absurdity and would be quite inconsistent with the legislative intention evidenced in s.14 that members are expected to attend Council meetings and Councils are expected to operate.
    
26. It should also be noted that, as this Court said in Carlot’s case, there may be a sitting without a quorum. A member may be absent from 3 consecutive sittings although there is no quorum at any of them. It is a misconception to think that simply because there is no quorum, there has not been a meeting or a sitting. Absence of a quorum simply prevents the conduct of business at the meeting.
    
27. The focus in the submission about the inability of the Council to get a quorum for its meetings because the 9 appellants would not attend its meetings was misplaced in any event. The issue was whether the appellants, whether one or 9 of them, did not attend 3 consecutive meetings of the Council without its prior permission to be absent. Section 18C(d) operates in the case of any member (or as in this case several members) who are absent for 3 consecutive meetings without prior permission.
    

Was There Prior Permission?

28. Both Mr Stephens and Mr Warsal made a further submission based upon Mr Stephens’ letter of 13 June. They submitted that this letter was sufficient to constitute prior permission of the Council because it was impossible for the Council to grant such permission since it never had a quorum. In support of this submission, counsel cited Boulekone v. Timakata [1986] VUSC 11, CC 90 of 1986 (1 October 1986).
    
29. In Boulekone, the Member of Parliament whose seat was in question was so dangerously ill that he was physically unable to ask permission to be absent. The Court said:
    

"Circumstances may create an impossible situation over which the alleged offender never had any control. If a man by his own conduct places himself in a situation where it becomes impossible for him to comply with the law it is no excuse. But if it was impossible for him to comply with it through no fault of his own the Courts will not condemn him."

30. There is no suggestion of physical inability in this case. There was nothing to stop the appellants from seeking permission to be absent on 12 June when the evidence shows that there was a full quorum at the sitting of the Council. In any event, any impossibility because of absence of a quorum is the result of the appellants’ own actions.
    

Conclusion

31. The appellants’ arguments lack any sense of reality. The Act is designed to provide for local government to serve the community. That object should not be frustrated by strained and unrealistic interpretations of provisions. The words of the legislative provisions are clear and unambiguous. It is only when lawyers put strained and artificial emphasis on individual words instead of reading the framework as a whole that problems arise Parliament intends that those who are in public office will cooperate to achieve benefits for the people and not try to frustrate outcomes to meet their personal agendas.
    
32. The appeal is dismissed. The respondents are entitled to costs as agreed or taxed jointly against all the 11 appellants who are personally responsible and cannot expect these costs to be met by the Council.
    

DATED at LUGANVILLE this 4th day of April 2007.

BY THE COURT

J. Bruce ROBERTSON J
Chief Justice Vincent LUNABEK
Hamlison BULU J
Christopher TUOHY J
John MANSFIELD J