Vanuatu National Council of Women v Bani [2015] VUCA 6; CAC 05 of 2015 (8 May 2015)

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

CIVIL APPEAL CASE No. 5 OF 2015

BETWEEN:

VANUATU NATIONAL COUNCIL OF WOMEN
Appellant

AND:

MARIANNE BANI
Respondent

Coram: Hon. Chief Justice Lunabek
Hon. Justice John von Doussa
Hon. Justice Ronald Young
Hon. Justice Daniel Fatiaki
Hon. Justice Dudley Aru
Hon. Justice Mary Sey

Counsel: Mr. Saling Stephens for the Appellants
Mr. Less Napuati for the Respondent

Date of Hearing: 5th May 2015
Date of Judgment: 8th May 2015

JUDGMENT

Introduction

1. On the 17 December 2014, Justice Saksak in the court below gave judgment in favour of the respondent, Marianne Bani against the appellant, the Vanuatu National Council of Women Committee Inc. (VNCW) in Civil Case 208 of 2013. She was awarded a sum of VT 1,056,320 being for her services as administrator of the VNCW from 15 December 2010 to 15 August 2011.
   
2. In January 2009 Mrs. Bani was appointed a project manager for the VNCW. While she was working there a dispute arose within the VNCW. The dispute resulted in a number of Court proceedings being issued. Mrs Bani's case is that during these proceedings the various parties to the disputes including the VNCW agreed to appoint her as joint administrator and then sole administrator of the VNCW. It is common ground her appointment ended in August 2011. In the proceedings before the Supreme Court Mrs. Bani sought payment from VNCW for her salary as the administrator.
   
3. The VNCW now appeal the judgment on a number of grounds as detailed in their Notice of Appeal as grounds (a) to (l). At the beginning of the hearing of this appeal Mr. Stephens informed the court that ground (g) was abandoned and would not be pursued.
   
4. In summary the appellant says that there was no basis for the courts' findings and decision regarding the respondent's appointment as administrator, the term of that appointment, the entitlement to salaries and other benefits or for the amount ordered to be paid to the respondent. In particular the VNCW denied it had ever appointed Mrs. Bani as an administrator or that they had agreed to her appointment or that the Supreme Court had the power to appoint Mrs. Bani as administrator (if that was claimed).
   
5. The Judge at paragraph 11 of the judgment when considering the issue as to whether Marianne Bani was appointed by the Supreme Court as Administrator of the VNCW said:
   

"This has been canvassed by the court in its earlier decisions. There has been no appeals against those decisions.."

6. Again at paragraphs 12 and 14 of the judgment the Judge said:
   

"12. For clarity, the Supreme Court did not appoint the claimant as administrator. The appointment was by consent made on 7 August 2009.The court recognized that position but the actual cut- off date was 15 December 2010.

...........

14. From the claimant's point of view whether the defendant (VNCW) is liable to pay her salaries as administrator from 15 December 2010 to 15 August 2011? The answer is in the affirmative. She was the sole administrator during this time. As such she was entitled to receive her salaries including her housing allowances and her VNPF contributions."

Background

7. The reference in paragraph 12 of the judgment that "the Court recognized that position but the actual cutoff date was 15 December 2010" is a reference to events that occurred on 15 December 2010. The consent order made on 7 August 2009 was made in the Magistrate's Court in Civil Case No. 39 of 2009. The proceedings in the Magistrate's Court came on again for the hearing of an interlocutory application on 15 December 2010. On that occasion the position of the administrators that had been agreed and recorded in the consent order on 7 August 2009 was reviewed and the continuing appointment of Mrs. Bani up to 15 December 2010 was confirmed. In a judgment delivered in the Supreme Court by Justice Saksak on 4 April 2011 in Civil Case No. 52 of 2011 the Judge explained the position. After referring to findings made in the Magistrate Court in Civil Case No. 39 of 2009 at a hearing on 21 December 2009 the Judge said:-
   

"12. The above decision made no mention of the termination of Mr. Arther Faerua and Mrs Doresthy Kenneth as interim administrators of VNCW. The Court merely found it had no jurisdiction to deal with the matter and gave liberty to the parties to apply to this Court if they wished to pursue the matter further. In essence it meant that Mr Faerua and Mrs. Kenneth continued as interim administrators until 15th December 2010 when by expressed agreement parties through their respective counsel agreed that Esline Turner, Mackenzie-Reur and Marianne Bani (Second Claimant) were the new administrators of VNCW. Effectively Mr. Faerua and Mrs. Kenneth's interim terms or appointment came to an end on that date.

13. Mr. Faerua informed the Court that Mrs. Turner and Mrs. Mackenzie-Reur have resigned voluntarily as administrators. That being so it is now clear that only Mrs. Marianne Bani, the Second Claimant or applicant herein is the remaining administrator of VNCW to this day. As such she is entitled to bring this application."

8. In the judgment under appeal the Judge found that the VNCW had agreed to the appointment of Mrs. Bani as a temporary administrator while the turmoil within VNCW was resolved.
   
9. Mrs. Bani's case was that she together with Mrs. Turner and Mrs. McKenzie- Reur were agreed by the VNCW to be the joint administrators. Shortly after their appointment the two other women resigned leaving Mrs. Bani as the sole administrator. She said she continued in that role until August 2011 when a permanent administrator was appointed.
   
10. The essential issue was whether the VNCW had agreed to Mrs. Bani's appointment as administrator. We agree with the Judge that the VNCW did agree through their counsel to her appointment. This agreement was formally recorded in consent orders dated 7 August 2009 and 15 December 2010 and in the Magistrate's Court in Civil Case No.39 of 2009. The fact of VNCW's consent to Mrs. Bani's appointment is also recorded in a number of judgments and orders of the Supreme Court.
    
11. On 4 April 2011 Justice Saksak in Civil Case 52 of 2011, VNCW and Marianne Bani v Arthur Faerua & Ors, accepted that position and found that Mrs. Bani was entitled to bring the application in that case as the administrator of VNCW. The orders were never appealed.
    
12. On 17 August 2011 a settlement conference was held by Justice Spear in consolidated Civil Case 211 of 2010 Manina Packete v VNCW and Civil Case 52 of 2011. The parties in both cases were present, namely, Manina Packete as VNCW President with Counsel Bruce Kalotiti; Marianne Bani with Counsel Colin Leo; VNCW board members (Lesline Malsungai, Anita Deroin, Lave Tabius) and Jenny Ligo the VNCW Chief Executive Officer. The State was represented by Alain Obed. As part of the settlement, the judge made the following remarks at paragraphs 5, 6, 8 and 12 of his settlement conference notes and orders:-
    

" 5) Accordingly it is now unnecessary for Marianne Bani to remain as the caretaker administrator, a position that she has occupied since 15 December 2010 at the pleasure of this court. Her appointment arose by agreement dated 15 December 2010 of the parties in Civil Case 39 of 2009 (Manina Pakete v Anita Deroin, Lesline Malsungai, Kathy Fred, Lave Tabius Margaret Maranda and Ruth Ielo) and which was embedded as a consent order in that proceeding.

6) Marianne Bani's appointment as sole administrator is discharged with the thanks of the court;

.......

8) Mr Obed is to provide Mr Leo with details of the remuneration position in respect of the first appointed administrators within 7 days and generally work with Mr Leo to achieve resolution in respect of Marianne Bani's remuneration position. However failing such resolution by 31 August 2011, leave is reserved to Marianne Bani to amend her claim in Civil case 52 of 2011 to reform an action against the Republic of Vanuatu for fair and reasonable remuneration and reimbursement of expenses for the services that she has performed as administrator and indeed prior to that time as a full time employee of VNCW.

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

12) Save as to costs which will be either agreed or argued if necessary, both these two sets of proceedings are struck out as settled subject only to leave reserved to Marianne Bani to reshape her claim as provided for in paragraph 8 hereof ."

13. Again these orders were not appealed.
    

Entitlement to claim remuneration

14. It was recognized by the court as part of the settlement in Civil Case 211 of 2010 and Civil Case 52 of 2011 that Marianne Bani was entitled to remuneration for services rendered as sole administrator of the VNCW hence she was given leave to reshape her claim for remuneration and reimbursement of expenses incurred during the time of her service. The VNCW had been a party to Civil Case 52 of 2011 from the day the proceedings were issued in 2011. It is not correct for the VNCW to now assert that they were only made a party very late in the action by order of a Judge. All the Judge did recently was to correct the name of the VNCW in the proceedings by recognizing that it was an incorporate body.
    
15. The claim as filed showed the corrected name of the VNCW and is the amended Supreme Court claim Civil Case 208 of 2013 which final judgment is now being appealed.
    
16. As the Supreme Court has pointed out repeatedly the appointment of Mrs. Bani was not made by the Supreme Court. It was made by the VNCW who gave agreement through their counsel on 7 August 2009 and 15 December 2010. It is simply wrong for the present board members of the VNCW to assert that the VNCW did not appoint Mrs. Bani, and the Supreme Court has so held in April 2011 in a judgment that was not appealed. Mrs. Bani by reason of that appointment is entitled to be remunerated appropriately as administrator. That entitlement had also been recognized by the terms of settlement recorded in the Settlement Conference Notes delivered on 17 August 2011.
    
17. The Notes record that the settlement was reached in the presence of members of the Board of VNCW. No application was made after the Notes were issued to amend or alter what the Notes recorded as the terms of settlement. The VNCW is by those terms also bound to acknowledge Mrs. Bani's entitlement to be remunerated for her work as administrator.
    
18. The grounds of appeal which question the validity of Mrs. Bani's appointment and her entitlement to be remunerated are totally without substance.
    
19. The appeal against the quantum of the award made in favour of Mrs. Bani is also without substance. She has been awarded remuneration at the same rate which was paid to the other administrators, and no other more appropriate rate has been suggested by the VNCW to this Court.
    
20. The ground of appeal that alleges Mrs. Bani was not entitled to a housing allowance because she was at all times living free in the VNCW's guest house (ground of appeal (k)) is frivolous as the guest house burnt down before her appointment and this fact must have been known to the present Board. This allegation just illustrates how wrongheaded the attitude of the present Board of VNCW is to Mrs. Bani's claim.
    

Conclusion

21. Justice Saksak was correct in the conclusions he reached in his judgment. This appeal must be dismissed. The respondent is entitled to costs on a standard basis.
    

DATED at Port Vila this 8th day of May 2015.

FOR THE COURT

Hon. Vincent Lunabek
Chief Justice.