|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
Civil Jurisdiction
CIVIL CASE No. 86 of 1999pan>
IN THE MATTER OF: An application by the
Hon. Willie Jimmy Tapanga Rarua,
a member of the Union of Moderate Parties
and the National Council of the Union of Moderate Parties,
for certain declarations.BETWEEN:
Hon. Willie Jimmy Tapanga Rarua
ApplicantAND:
Hon. Serge Vohor
and Other Members of the
National Council of the Union of Moderate Parties
Respondents
Date of hearing: 12, 13, 14 and 15 June, 2000
Date of Judgment: 26 June, 2000Coram: Acting Chief Justice Vincent Lunabek J
Counsels: Mr. Edward Nalial for the Applicant
Mr. Jack Kilu for the RespondentsREASONS FOR JUDGMENT
INTRODUCTION
By Summons dated 25th August 1999, the applicant, Hon. Willie Jimmy Tapanga Rarua, as a member of the Union of Moderate Parties (“U.M.P.”) and the National Council of that political party, seeks various declarations and/or orders challenging the validity of the disciplinary decisions taken by the National Council of U.M.P. in an extraordinary meeting held on 20 August, 1999 against the applicant himself and other U.M.P. Members of Parliament who held ministerial positions in the coalition government of the Hon. Donald Kalpokas, the then Prime Minister.
THE PARTIES
The applicant, the Hon. Willie Jimmy Tapanga Rarua, is a member of the U.M.P., being a U.M.P. Member of Parliament elected at the last National General Elections in March 1998 and as such, a member of U.M.P. National Council. In 1999, he was one of the UMP Members of Parliament who formed a coalition government with the then Prime Minster, Hon. Donald Kalpokas.
The Respondent, the Hon. Serge Vohor Rialuth, is a member of UMP, being a UMP Member of Parliament elected at the last National General Elections in March 1998 and President of the UMP and a member of UMP National Executive Committee and the National Council. In 1999, the Respondent led the UMP faction on the Opposition side of the then Executive Government.
THE AMENDED ORIGINATING SUMMONS
By Amended Summons (with leave of the Court), the Applicant claims against the respondents for declarations/orders that:-
1. A declaration that the National Council of the Union of Moderate Parties does not have the power to pronounce disciplinary sanctions against members of the Party without consulting with the National Disciplinary Committee.
2. A declaration that the purported decisions of the UMP Extraordinary National Council held on 20 August 1999, are ultra vires and of no effect.
3. An order quashing the purported decisions of the UMP Extraordinary National Council held on 20 August 1999.
4. Such further relief as shall be just.
AND an order that:
5. The respondents may be ordered to pay the costs of this application.
THE GROUNDS
The grounds relied upon by the Applicant are as follows:
“2.…
(a) No notice of the meeting of 20 August 1999, convened in the name of the National Council of UMP, was given to all the eligible members of the National Council;
(b) The assistant Secretary General did not have authority to issue notice for the meeting of 20 August, 1999;
(c) The notice issued for the meeting of 20 August 1999, was defective because it failed to set out in full all the particulars of the agenda that were deliberated upon at the meeting;
(d) The applicant and other eligible members of the National Council of UMP were denied their rights under the rules of natural justice by reason that no notice of the 20 August 1999 meeting was given to them and consequently they were not given the opportunity to be heard as to the resolutions passed at that meeting which prejudice their membership of UMP, and for some members those resolutions prejudice them personally;
(e) There was no quorum at the meeting of 20 August 1999 therefore the group holding itself out to be the National Council of UMP had no powers as under the Constitution of UMP to proceed and pass those resolutions. The meeting was incompetent to pass those resolutions;
(f) Some proxies given to the persons attending and voting at the meeting are invalid;
(g) Some persons who are not eligible to attend the National Council meetings attended and voted at the meeting of 20 August 1999.”
THE DEFENCE
The Respondents in the following paragraphs of their reply denying the applicant’s allegations:
“To the Originating Summons dated 25th August, 1999 and filed on 26th August 1999, the Respondents say (to the extent of the relevancy after the originating being amended):
1. They deny the allegations made in paragraph 1 and say the National Council does have the inherent and constitutional power to pronounce disciplinary sanctions against members of the Party and say further that the fact of consulting with the National Disciplinary Committee does not of itself give the National Council the disciplinary powers.
2. They deny the allegations made in paragraph 2, and say the decisions of the UMP Extraordinary National Council held on 20th August, 1999 were made within the Council’s legitimate powers as the Council was properly constituted and took decisions which are within the scope of its powers as authorised by the Party’s Constitution and By-Law.
3. They deny the allegations made in paragraph 3, and say the decision of the UMP extraordinary National Council held on 20th August, 1999 is valid, effective and enforceable.
4. They claim for an order that this action be dismissed. And for the Applicant to pay the Respondent’s costs of this action, and
5. Any other order as the Court deems just.”
LOCUS STANDI OF THE APPLICANT
The action is brought by the Applicant, on his behalf as a UMP Member of Parliament and on behalf of other members who are affected by the decision of the UMP National Council of 20 August, 1999. It is, thus, a representative action to bring all the parties involved in the internal dispute of UMP before the Court.
Similar approach was taken by this Court in the case of Rialuth Serge Vohor, first plaintiff and … Willie Jimmy, fourth plaintiff, -v- Amos Andeng and Others (defendants) in Civil Case No.75 of 1996.
ROLE OF THE COURT IN CASES OF SIMILAR NATURE
Before I proceed any further, I do think that it is necessary for me to make few observations concerning the role of the Court and my role as the Presiding Judge in the type of cases as this one. Vanuatu as a country, is a small community in which people tend to know each other and have strong family relationships, customs and traditional values. I have no doubt that all of you, if not, most of you who are in Court today, are Chiefs, Leaders of the Community, that is, “Big Men and Big Women” of this country. You bring this application before the Court of law seeking for justice as it is said that repeated efforts have been made to settle your differences but, without success. As far as I am concerned as the Acting Chief Justice of the Supreme Court of the Republic of Vanuatu, I must make it quite clear that the law I am bound to apply in this case and cases of this nature, is the law of Vanuatu. I will apply that law to this case without any consideration whatsoever for political views or policies or its consequences. Those political and/or policy considerations only are for you, “Big Men and Big Women” to assess and consider but, not for the Court. Megarry V.C. in the case of John v. Rees (1969) 2 ALL E.R. 363 at 367, describes the role of the Court in this way:-
“I must make explicit what all lawyers will recognise as implicit, but which those who are not lawyers may not fully appreciate. I am not in the least concerned in this case with the rightness or wrongness or the desirability or undesirability of any political views or policies within the confines of any political or other unit. My concern is merely to see that those concerned in these proceedings, obtain justice according to law, irrespective of politics.”
THE JURISDICTION OF THE COURT
Although counsel for the Respondents urges upon this Court to follow the decision of Cameron v. Hogan [1934] HCA 24; (1934) 51 C.L.R. 358, I am of the opinion that there is no question about the jurisdiction of the Court to ensure that all members of an unincorporated association, such as a political party follow their own rules and as appropriate give effect to the principle of natural justice.
This view was endorsed by the Court of Appeal in Serge Vohor v. Willie Jimmy in Civil Case No. 9 of 1999, unreported judgment dated 20 May 2000 in line with and confirming the judgment of the Court of Appeal No. 7 of 1991 in Re Mataskelekele v. Abbil & Ors.
In R.S. Vohor & Ors –v-. A. Andeng & Ors (Civil Case No. 75 of 1996), the Applicant Vohor, who is now the Respondent in Civil Case No. 86 of 1999 before this Court, asked the Court, inter alia, to make a declaration to the effect that the Courts can interfere in the internal workings of an unincorporated association, such as a political party. The basis of that application was simply that the U.M.P. members once they joined the Union of Moderate Parties, they subscribe to its Constitution and by-Laws and as such they should be taken to intend to be bound by these Rules and should be entitled to invoke the Courts in appropriate circumstances to have their disputes settled.
The respondents in Civil Case No. 75 of 1996, submitted that Cameron v. Hogan establishes that the executive of a voluntary association by failing to observe rules governing the association’s affairs commits no breach of contract actionable either at Common law or in equity, unless the member complaining has under the rules some civil right of a proprietary nature. I reject that submission and gave judgment for the first plaintiff, S.R. Vohor & Others including Willie Jimmy (fourth plaintiff). I have then expressed the following view:-
“With the greatest respect to the eminent and forward looking judges who gave the decision, I do not accept that view. There is no doubt that the position adopted in Cameron v. Hogan in 1934 refuses access to justice to members of voluntary association unless the member complaining has under the rules some civil rights of a proprietary nature. Proprietary right is not the only basis for a Court of law to entertain complaints from members of voluntary associations and on that basis alone grant the relief sought. Contractual right or what can be termed as “the concept of contractual negative stipulation” is not only point of principle as the true basis of the Court’s jurisdiction, it is also much more convenient. As it is pointed out by the Learned Authors: Meagher Gummow Lehane in Equity Doctrines of Remedies, Third edition, Butterworth 192:
“It enables the Courts to deal, not only with disputes between members and association but also with disputes between third parties and the association. Russel v. Duke of Norfolk (1949) 1 ALL ER 109 furnishes an example;” (at p.586).
In Abbott v. Sullivan (1952) 1 KB 189, and Lee v. Showmen’s Guild (1952) 2 QB 329, the English Court of Appeal decided according to the Plaintiffs’ right in contract, and did not require a proprietary interest to be shown, holding that negative contractual stipulation could be enforced.
In Vanuatu, in the case of Abbil v. Mataskelekele (1991) Golsbrough A.C.J., applying John v. Rees expressed the similar view in this way:
“The doctrine illustrated in John v. Rees shows that a contract exists between the members of an association such as the Vanuaaku Parti. Thus any member may ask the Court to consider any alleged breach of that contract” (p.3 of the judgment).
It must also be noted that people who are involved in voluntary associations are citizens who are entitled to look to the courts for the assistance in resolving disputes about the conduct of their sport, social and political organisations such as in the present case. If people of this country (Vanuatu) involving themselves in voluntary associations were refused to have access to the courts on the sole basis of “proprietary rights”, (then):
“a vast and growing sector of the lives of people in the affluent society will be a legal no man’s land, in which disputes are settled not in accordance with justice and the fulfilment of deliberately undertaken obligations, but by deceit, craftiness, arrogant disregard of rights and other means which poison the institutions in which they exist, and destroy trust between members;” (As per Wootten J in McKinnon v. Grogan (1974) 1 N.S.W.L.R. 295 at p.297.)
I, further, agree and adopt as my own the view expressed by Wootten J in the same case (McKinnon v. Grogan) when he said:
“… it (Cameron v. Hogan) has tendered to justify judicial abdication from areas the orderly regulation of which has become of ever increasing importance. The resultant categorisation in legal analysis of a great political party, or the effective regulatory institution of a major sport in the community, with a group of friends agreeing to meet for a game of tennis, is simply inadequate. One can understand that judges, who feel so keenly the importance of standing apart and being seen to stand apart from partisan politics, would be reluctant to see the internal fractional struggles of political parties brought into the Courts. But the proper desire to avoid identification of the judiciary with partisan politics is not a justification for eschewing responsibility for legal questions which happen to arise in the political arena. Courts have to venture amongst political divisions in many cases, notably in deciding constitutional issues and in enforcing the rules of trade unions, and a proper discharge of the judicial function in such areas will do more for their standing and reputation for impartiality than a failure to assist in settling the legal aspects of disputes which ravage great and small institutions in the community… The difficulties raised in Cameron v. Hogan as explaining the policy of judicial non-intervention are capable of solution if the policy of intervention is adopted.” (at pp. 297,298).
Despite Cameron v. Hogan, it is not the first time that the Courts of this country (Vanuatu) deal with disputes between individual members of unincorporated Association, such Political Parties; see Mataskelekele v. Abbil (1991); Kalpokas v. Lini – Civil Case 127 of 1991; Korman & Jimmy v. Mensul – Civil Case No. 106 of 1995.
The Courts should be willing to assist in resolving disputes with such organisations in which members have deliberately adopted formal rules to govern their relations.
In my judgement, people who join an unincorporated association such as the Union of Moderate Parties and subscribe to its Constitution and By-Laws should be taken to intend to be bound by them and should be entitled to invoke the Courts in appropriate circumstances to have their disputes settled and the limitations, if any, to be placed on the right is, no doubt, to be worked out on case to case basis. A Court can therefore interfere in the internal workings of an unincorporated association, such as a political party and I so rule.”
[See (Civil Case No. 75 of 1996) R.S Vohor & Ors v. A. Andeng & Ors. (Civil Case No. 106 of 1995) Korman & Ors v. Mensul E. & Ors which follow the decision of the Court of Appeal in Mataskelekele v. Abbil & Ors (Civil Appeal Case No. 7 of 1991). This line of authority was confirmed in Serge Vohor v. Willie Jimmy (in Civil Appeal Case No. 9 of 1999) – Judgment of Court of Appeal, 20 May, 2000].
THE ISSUES:
The questions of law to be answered by the Court are twofold:
1. Whether the National Council of UMP can pronounce disciplinary sanctions against UMP Members without consulting the National Disciplinary Committee.
2. Whether the decisions or resolutions taken by the extraordinary UMP National Council meeting of 20 August, 1999 are ultra vires, and of no effect and should be quashed.
THE BURDEN AND STANDARD OF PROOF
Before going on to deal with the evidence I remind myself that the onus is upon the Applicant to prove his case according to the civil standard of proof, that is, on the balance of probabilities.
THE EVIDENCE
The hearings of the Summons occupied 4 hearing days during which 25 witnesses gave evidence, 11 for the Applicant and 14 of Respondents.
Most of both parties witnesses provide evidence in chief by way of affidavit evidence. Each party is given the opportunity to object to the parts of the affidavit he considers inadmissible and also to cross-examine the opponent’s witness on the content of his affidavit.
I now turn to consider the evidence of both parties on disputed facts. What follows is a summary of that evidence.
THE APPLICANT’S EVIDENCE
(AW = Applicant’s Witness - RW = Respondent’s Witness)
AW1 – Willie Jimmy Tapanga Rarua – Applicant, Member of Parliament for Port Vila
The Applicant gave evident that he is a member of the Union of Moderate Parties (“UMP”) being a UMP Member of Parliament elected at the last National General Elections in March of 1998.
On 14 and 16 August 1999, a meeting of the National Council was held at Mwebalehan Nakamal at Port-Vila. He produced and marked “A” copies of the resolution passed at that meeting.
He produced and marked “B” a copy of resolutions purportedly passed at the Extraordinary National Council meeting on 20 August 1999, received by him at 4.00 pm on 23 August 1999.
He did not receive notice of the alleged Extraordinary National Council Meeting held on 20 August 1999.
He produced and marked “D” a copy of the Constitution of the UMP, Chapter 6 of the Constitution provides for the establishment of the National Council and the composition of that Council.
He said that having regard to the provisions of Chapter 6 of the Constitution, the members of the National Council should properly comprise Serve Vohor, Jean Alain Mahe, Jimmy Imbert, Jacque Sese, Vincent Boulekone, Paul Telukluk, Irene Bongnaim, Willy Jimmy, Henri Taga, Willy Posen, Alfred Wilson, Gaetan Pikioune, Henri Keke, William Sumbe, Dickinson Vusi, Charlot Bibi, Lucien Litoung, Rene Haoul, Abel, Kora Maki, John Alick Morrison, Alick George Noel, Gilbert Mermer, Jacques Nirua, John Lee Solomon, Marc Yaudu, Thomas Brody Faratia, Adrien Malere and Alfred Maliu. He annexed and marked “E” a copy of the list of members of the National Council.
He further said that despite the fact that the resolutions passed at the so-called extraordinary National Council meeting held on 20 August 1999 affected him personally, he was not given Notice of the meeting and was not given the opportunity to address the meeting on:
(a) the potentially prejudicial effect of the proposed resolutions on him and his membership of the UMP; and
(b) the power of such group as were present, to pass such resolution.
He produced and marked “F” a copy of the resolutions passed at the 18th and most recent National Congress of the UMP held at White Sands, Tanna on 17th August 1997 to 23 August 1997.
He further said that some persons who were present at the meeting of 20 August 1999 were given proxies to vote on behalf of eligible members who were absent nor did they have the mandate from the President of the regions to attend the meetings, however, they attended and voted purporting to represent the absent members and the mandates for which they were not authorised to represent.
The persons who were eligible to attend all National Council meetings are duly elected members of National Executive Committee (10), all duly elected members of Parliament (12), and all duly elected Presidents of UMP Regional Councils (14).
Were a person qualifies under two or more categories of membership he has the right to exercise one vote or mandate in respect of each category in which he qualifies. Therefore, from his calculation the total number of eligible mandates in the National Council is 36.
He said that the meeting of 20 August 1999, did not have the requisite quorum, and include persons who were ineligible to attend and vote.
The non eligible members who attended the meeting of 20 August 1999:
(a) Tom Lorry purporting to represent Tongoa;
(b) William Tari purporting to represent Ambae;
(c) Josias Moli purporting to represent Malo.
In cross examination, he said he attended and participated at the UMP National meeting held on 14 and 16 August 1999. He also voted for the six (6) resolutions passed at the meetings. He did take part because he did receive a notice served on him by the UMP Secretary General.
He argued that the UMP National Council selected Mr. Vincent Boulekone to meet with the then Prime Minister of Vanuatu, Hon. Donald Kalpokas and discussed with him about resolutions 1 and 2 of 16 August 1999. He denied he was aware of any report on the outcome of discussions between Mr. Boulekone and the Prime Minister of Vanuatu. He said he did not know about the reasons. He and others waited for Mr. Boulekone but it was late night. Boulekone did not arrive so he and others left the Nakamal where the meetings took place.
He denied he received a Notice of the meeting of 20 August, 1999 from the Assistant Secretary of UMP, Jacques Nirua nor from the Member of Parliament Jacques Sese.
He insisted and repeated that he received the notice of the meetings of 14 and 16 August 1999 but he did not receive the notice for the meeting of 20 August 1999 and he was not aware that UMP National Council will have an extraordinary meeting on that date.
He said, it is not because of the proposed reshuffle of the Government that they decided to ignore the notice of 20 August 1999 meeting. In effect, he said he did not receive the notice of the meeting and he emphasized that it was not true that he ignored the meeting.
On the question:-
“If the UMP National Council Directives are to be executed, then a UMP member in answerable to the National Council?”
This witness disagrees. He said that the National Council of UMP cannot deal with these matters directly. The complaints need to go from the Regional level to the National Disciplinary Committee and then by way of recommendation to the National Council. But, he pointed out that the National Council cannot decide directly.
He further said that if the National Disciplinary Committee have no elected members, it is due to the failure of the National Executive Committee of UMP.
He insisted that the National Council could not pronounce disciplinary sanction directly against a UMP member. The disciplinary procedure, he said, is laid down in the UMP Constitution. So the National Council will not pronounce disciplinary sanction without consulting with the National Disciplinary Committee.
AW2 – Henri Taga, UMP Secretary General, Member of Parliament
This witness gave evidence that he is a member of the Union of Moderate Parties (“UMP”) being a UMP Member of Parliament elected at the last National General Elections in March 1998.
On 14 and 16 August 1999, a meeting of the National Council was held at Mwebalehan Nakamal at Port-Vila. He produced and marked “A” copies of the resolution passed at that meeting.
He produced and marked “B” a copy of resolution purportedly passed at the Extraordinary National Council meeting on 20 August 1999.
He did not receive the notice of the alleged Extraordinary National Council meeting held on 20 August 1999.
He produced and marked “D” a copy of the Constitution of the UMP, Chapter 6 of the Constitution provides for the establishment of the National Council and the composition of that Council.
He testified that having regard to the provisions of Chapter 6 of the Constitution, the members of the National Council should properly compromise Serge Vohor, Jean Alain Mahe, Jimmy Imbert, Jacques Sese, Vincent Boulekone, Paul Telukluk, Irene Bongnaim, Willy Jimmy, Henri Taga, Willy Posen, Alfred Wilson, Gaetan Pikioune, Henri Keke, William Sumbe, Dickson Vusi, Charlot Bibi, Lucien Litoung, Rene Haoul, Abel, Kora Maki, John Alick Morrison, Alick George Noel, Gilbert Mermer, Jacques Nirua, John Lee Solomon, Marc Yaudu, Thomas Brody Faratia, Adrien Malere and Alfred Maliu. He annexed and marked “E” a copy of the list of members of the National Council.
Despite the fact that the resolutions passed at the so-called Extraordinary Council meeting held on 20 August 1999 affected him personally, he was not given notice of the meeting and was not given the opportunity to address the meeting on:
(a) the potentially prejudicial effect of the proposed resolutions on him and his membership of the UMP; and
(b) the power of such group as were present, to pass such resolution.
He also produced and marked “F” a copy of the resolution passed at the 18th and most recent National Congress of the UMP held at White Sands, Tanna on 17th August 1997 to 23 August 1997.
At the 18th National Congress of UMP held at Whitesand, Tanna from 17 to 23 August 1997, he was unanimously elected as the Secretary General of UMP for a term of 2 years.
He was not notified of the meeting of the National Council held on 20 August 1999. No notice of the meeting of 20 August 1999, was served on the office of the Secretary General of UMP.
It has been the practice for UMP that the Secretary General is the person who gives notice to all members of UMP for all party meetings including National Congresses, National Executive meetings. He produced and marked “A” copies of notices which he as Secretary General of UMP sent to members of UMP for various meetings.
Further it is the practice of UMP and in accordance with Article 35 of the UMP Constitution that the Secretary General is mandated to be responsible for general communication of the National Executive Committee of UMP and signs documents of the UMP. He produced and marked “B” copies of documents which he as Secretary General of UMP have signed in the past.
In cross-examination, he said he did attend the UMP National Council meetings held on 14 & 16 August 1999. He participated and voted for the resolutions. As UMP Secretary General, he issued and served the notices on all members after that a National Executive Committee had met and decided to call for a national Council meeting. He did then sent written notice to all members.
He agrees that the majority of the UMP National Council members attended the meetings. The main intention of the resolutions is for the reunification of the UMP via a rearrangement of the Government UMP Ministers portfolios.
He said Mr. Boulekone was sent to discuss the proposed rearrangement of the Government UMP Ministerial portfolios with the Prime Minister of Vanuatu.
He said he knew Mr Boulekone met with the Prime Minister but he did not know about the results of their discussions.
He said after the meeting of 16 August 1999, UMP President suggested that Boulekone would discuss the outcome of the National Council of UMP meetings with the Prime Minister of Vanuatu. There was no special committee to negotiate with the Prime Minister. As to why the Prime Minister did not act according to the proposed rearrangement of the Government UMP Ministers portfolios, he did not know.
As to the 20 August 1999, he said he did not know. He did not attend because he did not
He denied that he received a notice of the meeting from the Assistant Secretary General, Jacques Nirua, nor from Jacques Sese. He denied the fact that because the government rearrangement is likely for him to loose his portfolio, then he decided to ignore the notice.
Further he said that if a UMP member did not comply with such resolutions, then the member must go first before the National Disciplinary committee and then before the National Council.
AW3 – Vincent Boulekone, Member of Parliament of Pentecost Island
He gave evidence to the effect that he is a Member of parliament of the Union of Moderate Parties (“UMP”).
At the 18th National Congress of the UMP held at Whitesand, Tanna from 17 to 23 August 1997, he was unanimously elected as the Vice President of UMP, he was to hold the position of Vice President for a term of two years from 23 August 1997. He was not notified of the meeting of the National Council held on 20 August 1999.
No notice of the meeting of 20 August 1999, was served on the office of the Vice President of UMP.
At all National Council meeting he holds two mandates in respect of voting, one as a member of Parliament and the other as the Vice President of UMP.
He has read the minutes of the meeting of 20 August 1999 and it records that he was present, however, that is not true because he was not present at the meeting.
In cross-examination, he confirmed he is a member of UMP National Council and National Executive Committee.
He accepts that he attended the meeting of 14 & 16 August 1999, participated and voted for the six (6) resolutions passed in the meetings.
The meeting of the UMP National Council took place in a Nakamal owned by the people of Pentecost. Boulekone is one of their custom chiefs. He said the Nakamal’s Committee decided that the UMP National Council took place at that Nakamal. Before the meetings proceeded, this witness said he gave the welcome address as the chief of the Nakamal, a Member of Parliament and as the UMP Vice President to bring in peace, and reconciliation between the two (2) UMP factions.
He confirmed the idea that the UMP President, after the meeting of 16 August 1999, sent Mr. Boulekone to discuss the UMP National Council proposed reshuffle of the Government UMP Ministers in the coalition Government.
He said his mission was not really to negotiate with the Prime Minister. But he will inform the Prime Minister that the 2 UMP groups are reunited and become one. On 17 August, 1999 at 8.30 am during the Parliament session, the UMP Opposition group will move and join the Government in Parliament. He said that is the purpose of his discussions with the Prime Minister.
On 16 August 1999, he met and discussed his mission with the Prime Minister. Both drank kava because they were happy. He clarified that the UMP Opposition group will join the Government UMP group to form the coalition Government and then, there will be two (2) or three (3) reshuffles of the Government UMP Ministerial portfolios.
He told the Prime Minister, words to this effect, “tomorrow – full opposition bae I join mo supportem Government.”
He told the Prime Minister that he respected his constitutional powers as Prime Minister, he told the Prime Minister also that there will be some change in the portfolios, the UMP President wanted Public Utilities portfolio. He said the Prime Minister agreed and said he will see if the Opposition UMP group at 8.30 am crossed the Parliament Floor and joined the Government side, then the Government reshuffle will take place.
He further said he was ready to give up his Ministerial position to another UMP Member of Parliament. He told the Prime Minister not to be concerned about the reshuffle.
It is put to the witness that the UMP President requested him to report back to the National Council of UMP at the Nakamal. He said he had to report back only to the UMP President and he did. On 8.30 am, he did not see the UMP President. He then went into the Parliament Chambers to see whether the Opposition UMP members moved from the Opposition Bench to the Government side. He felt bad because he was a Minister, a Member of Parliament, a chief. The UMP President was not in Parliament at that time.
He met with the UMP President later on 17 August 1999 and informed him that he had fulfilled his mission. He was waiting at Parliament Building to inform the President of UMP about same before 8.30 am but he could not see him otherwise there will be no difficulties and the Prime Minister would then exercise his constitutional power to make reshuffle.
He said he did not look after UMP President after 10.00 pm o’clock. He had kava with the Prime Minister and he then went to sleep on the basis that the main activity should happen in Parliament the next morning on 17 August 1999.
He said the UMP President laughed and told him that the Opposition UMP Members of Parliament group will not cross the floor and join the Government UMP group in Parliament.
As to the meeting of the UMP National Council of 20 August, 1999 he said he was aware of it but he did not know of the agenda. He expressed his feelings that the UMP President did not fulfil the resolutions.
On 20 August 1999, he was at the Nakamal to welcome the people for the meeting as a Chief. He was disappointed. He got no agenda. No one told him to report back to the National Council. It was not part of the resolutions taken by the UMP National Council.
He said that after the meeting, on 16 August 1999, the UMP President, told him to go and see the Prime Minister and inform him about resolution 1. So he said as he understand it, after he met and discussed the proposed reshuffle of Government UMP Ministerial positions to the Prime Minister, he reported back to the President of UMP and he then fulfilled his missions.
He denied he had any different thoughts about the reshuffle. He said to call the National Council meeting, if the UMP President was not present, then, he as Vice President can call the meeting of the National Council and the Secretary General to issue notices.
He did not agree that the Assistant Secretary General of UMP to issue notices of meetings while the Secretary General was in Vila.
On 20 August, 1999 he welcomed the people for the meeting and he then left the Nakamal. He did not participate and vote at the meeting.
In the night, on August 1999, at Francois Boulekone Nakamal, Jacques Sese talked to him and informed him about the outcome of the meeting and he said he did not accept the resolutions of 20 August 1999 and at that time, he had received the content of his suspension letter. He then wrote to Jacques Sese to offer him his Ministry portfolio to ensure that there is unity within the UMP.
AW4 – Paul Telukluk, Member of Parliament, Malekula Constituency
He said he is a Member of Parliament and a Member of the Union of Moderate Parties (“UMP”). He was not notified of the meeting of the National Council held on 20 August 1999.
In cross-examination, he said he attended and voted on the resolutions taken on 14 & 16 August 1999.
As to the meeting of 20 August 1999, he said he did not receive any notice of that meeting. At that time, he said, there was a Parliament session. He was not aware that on 20 August 1999, there was an extraordinary meeting of the National Council of UMP.
He denied receiving a copy of the Notice from Jacques Sese. He never discussed about the said meeting with Boulekone.
It was put on him why people from the island received the notice and he did not. He said there as procedure with the Party Constitution. The Secretary General of UMP sent notices to UMP National Council members to meet. He did not receive any notice from the Secretary General of UMP.
AW5 – Rene Haoul
He is the President of the UMP Regional Committee for Ambrym. On 8th July 1997 at Port Vato, Ambrym at a regional congress, he was duly elected as President of UMP Regional Committee for Ambrym for a term of 2 years. His position as President was endorsed and extended for a further term until after the UMP National Congress at Mele, Efate. However, at the Mele Congress, he was suspended from membership of UMP by Mr Serge Vohor.
He was not notified of the meeting of the National Council held on 20 August 1999.
No notice of the meeting of 20 August 1999, was served on the office of the President of UMP Regional Committee for Ambrym.
He did not authorise any member of UMP to vote by proxy on his behalf at the meeting of 20 August 2000.
Under cross-examination, he said after the meeting of 14 & 16 August, 1999 he was still at Port-Vila. He admitted that on 18 or 19 August 1999, Jacques Nirua informed him about a meeting. He did not know about the date. So he said because he did not receive any notice, he did not attend. He said the UMP Secretary General must send notice to all eligible members for their attendance at the meeting. He denied he received a notice via his sister at Anabrou. He also said that there is no agenda on the notice of the meeting. He then said Jacques Nirua informed him that the meeting would be held at Anabrou Nakamal on 20 August, 1999.
It was put to this witness that the reason for him not to attend the meeting was that, he was offered work. He said he did not quite remember whether the offer was done before or after the meeting of 20 August, 1999.
AW6 – Lucien Litoung
He is the President of the UMP Regional Council for Malekula. In August, 1997 at Benenavet Village, Malekula at a regional congress, he was duly elected as President of UMP Regional Council for Malekula for a term of 2 years. At the Mele Congress in October 1999, he was suspended from membership of UMP by Mr Serge Vohor.
He was not notified of the meeting of the National Council held on 20 August 1999.
No notice of 29 August 1999, was served on the office of the President of the UMP Regional Council for Malekula, nor at the office of the Assistant Treasurer of UMP.
He did not authorise any member of UMP to vote by proxy on his behalf at the meeting of 20 August 2000. Annexed hereto marked “A” is a true copy of a letter he wrote informing his lawyers that he did not give proxy to anyone to vote on his behalf, nor did he authorise anyone to attend on his behalf.
AW7 – Alick Morrison
He is the President of the UMP Regional Council for Tongoa Shepherds. On 14 and 16 May 1997, at Kurumanbe, Tongoa at the regional congress, he was duly elected as President of UMP Regional Council for Tongoa Shepherds for a term of 2 years. At the Mele Congress in October 1999, he was suspended from membership of UMP by Mr Serge Vohor.
He was not notified of the meeting of the National Council held on 20 August 1999.
No notice of the meeting of 20 August 1999, was served on the office of the President of the UMP Regional Council for Tongoa Shepherds.
He did not authorise any member of UMP to vote by proxy on his behalf at the meeting of 20 August 2000.
In cross-examination, he said after the meeting of 14 & 16 August 1999, he was at Port-Vila and nobody contacted him about the UMP National Council extraordinary meeting of 20 August 1999. He was not aware of it.
He said he did not give authorisation to any person to vote by proxy on his behalf. He said he was the UMP President of the Shepherds region and there is no President for Tongoa Region.
AW8 – Kora Maki
He gave evidence to the effect that he is the Member of Parliament for Epi Region. On 20 August 1999, he was the President of UMP on Epi Region.
On 20 August, 1999 he was at Port-Vila but he was not aware of that meeting. He denied that notice of the meeting was given to him and he was not inform about that meeting.
AW9 – Able Louis
He gave evidence that he is the UMP President of Paama Region. On 20 August 1999, he was on Paama Island. He was not aware of a meeting of 20 August 1999. He did not give the right to anyone to vote on his behalf by proxy.
In cross-examination, he said he was not informed about the meeting of 20 August 1999. He was not contacted either by telephone or radio message.
AW10-Charlot Bibi
He d he is the UMhe UMP President on the Island of Pentecost. He said he did not receive notice of meeting of UMP National Couon 20 August 1999 at Port-Vila. No agenda of the meeting was sent to him. <
In cross-examination, he said he did not receive notice of the 20 August 1999 meeting. Nobody contacted him about the said meeting.
AW11 – John Lee Solomon
He gave evidence that on 20 August 1999, he was the National Treasurer of the UMP. He is a member of the UMP National Executive and National Council. He said he was not aware and informed of a meeting of the National Council of UMP held on 20 August 1999.
He said he did not receive any notice nor agenda of the said meeting. On 20 August 1999, he was at Port-Vila. He did not authorise any person to vote by proxy on his behalf.
In cross-examination, it was put to him that he did not attend the meeting of the National Executive Committee because he works at the Shefa Education Office at Port-Vila. He denied this. He said he attended the meetings as long as the attendance will not affect the time of employment as a public servant.
He confirm he did not attend the 20 August 1999 meeting and he did not write to any person to vote on his behalf by proxy.
That is the end of Applicant’s case.
THE RESPONDENTS’ EVIDENCE
RW1 – Serge Rialuth Vohor – Respondent Member of Parliament, Santo Rural Constituency
The respondent gave evidence to the effect that he is the President of UMP, being a UMP, being a UMP Member of Parliament for Santo Rural Constituency and UMP member of National Executive Committee.
The structure of UMP is as follows:-
He said the National Congress is responsible to define the general policy and political orientation of the party, and the Congress meets normally once a year in annual Congress.
The UMP National Council is the executive decision making-body of the UMP. It carries out the day to day UMP decisions and day to day administration of the Party until the next National Congress.
In the UMP structure, the National Council Office Bearers form part of National Executive Committee (NEC) and the composition of the existing NEC is set out as follows:-
(1) President-Hon. MP Serge Vohor
(2) Vice President-Hon. MP Vincent Boulekone
(3) Secretary General-Hon. MP Henri Taga
(4) Vice Secretary General-Jacques Nirua
(5) Treasurer-John Lee Solomon
(6) Vice Treasurer-Lucien Litoung
(7) Member-Alfred Maliu
(8) Member-Adrien Malere
(9) Member-Mark Iauto
(10) Member-Thomas Brothy Faratia
He further says that has per the UMP Constitution, each N.E.C. hold office for a period of 2 years.
The Vice President and the Secretary General of UMP are with the Government in conjunction with other UMP Members, brought proceedings against the Respondents before the Court.
He gave evidence on the role of the Disciplinary Committee to the following effect that Article 45 of the Party Constitution provides that:
“A Party Member can appeal to the Disciplinary Committee if his regional (Council) has taken a disciplinary action against him. The Disciplinary Committee then, refers the matter before the National Council for its final decision”.
In the case before the Court, Mr. Willie Jimmy Tapanga Rarua challenges the decision of the National Council which is the highest body next to the Congress instead of complying with it to serve the interest of the Party.
He further says that the actual Disciplinary Committee members who were elected at Moto-Lava Congress (Banks) did no longer exist because its members like Mr. Maxime Carlot, Thompson Kawai formed a new party called Vanuatu Republican Party (“VRP”). Mr. Amos Andeng became then an Independent. Other members also resigned from the Party. There are now only two (2) members out of the seven (7) members: Mr Peter Malsungai and Adrian Malere.
He, therefore, says that the National Council take disciplinary action for the following reasons:
(a) At its meeting of 20 August 1999, the National Council has its quorum (20) mandates out of a total of 34.
(b) On 20 August 1999, the Disciplinary Committee was not constituted because there are only 2 members out of 7.
(c) Because the Disciplinary Committee is not constituted on that date, the National Council headed by the Party President, and as a high decision making body of the Party, can take disciplinary action as final decision without consultation until the congress will sit and review the decision.
(d) There was precedent on the action taken by the President, as the Head of the National Council, against members of the Party.
Example: In 1998, the President suspended Mr. Maxime Carlot Korman because he took part in the march for the claim of Port-Vila land. He was taken back by Luganville Congress. In 1989, the President suspended Mr. Jean Marie Leye because he did not comply with the decision of the Party which was against C.R.C. (Constitutional Review Committee). He was taken back by the Congress of Tanaliu in 1990.
Finally, he said that the National Council elected members of the Disciplinary Committee. So the Disciplinary Committee is a working tool only for the National Council and the National Council could not depend on the Disciplinary Committee to use its powers to discipline members, especially members on national level such as Members of Parliament and Ministers of the Government.
This witness says that he attended and took part in the deliberations and voting on the resolutions passed by the National Council meetings held on 14 and 16 August, 1999 at Mwebalehan Nakamal.
As to the meeting of the National Council held on 20 August 1999, he said he was aware of it. He took part and voted for the resolutions. He explained that the 20 August meeting of 1999 was held after the National Council passed some resolutions on 14 and 16 August 1999 and the National Council asked the National Executive of the Party to discuss them with the then Prime Minister of Vanuatu. He said that the National Executive asked Hon. Vincent Boulekone the then Minister of Agriculture to inform and discuss that issue on behalf of the National Council with the Prime Minister. He said Mr. Boulekone was supposed to report back to the National Council about the outcome of the discussions.
He then admitted that because he and Mr. Boulekone were not able to meet with one another as expected but Mr. Boulekone reported back to him (the witness) on 19 or 20 August 1999 on the outcome of the discussions with the Prime Minister.
He also said that the national Council requested an answer of the resolutions so that a National Council meeting was called on 20 August because he could not meet with Mr Boulekone.
He explained that the purpose of the meeting of 20 August 1999 was to inform the National Council of the outcome of the discussions between Mr. Boulekone and the Prime Minister on the basis of the resolutions passed on 14 and 16 August 1999 for a reshuffle of the Government.
He said Mr. Boulekone informed him about the outcome of the discussions with the Prime Minister and the position of the Prime Minister was that the Prime Minister could not proceed with a reshuffle of his Government in the way suggested by the UMP National Council. There were too many changes which create instability. The better option was for the UMP Opposition to join the Government and a reshuffle would be possible thereafter.
He said he mentioned to Boulekone that it is better to call a meeting to explain the outcome of the meeting between the Prime Minister and Boulekone.
He said Mr. Boulekone was at the Nakamal on 20 August 1999 at the beginning of the meeting because the Nakamal is for him and his people. He said Boulekone did not give a welcome speech. Boulekone mentioned that the Nakamal is for everyone to hold meetings. He said that Boulekone did not take part in the meeting but he asked him to go to the airport then left. He said before Boulekone left the Nakamal there was no quorum but after he left then, there was quorum and the meeting of 20 August 1999 started. He further said that in fact “hemi no really wan meeting too” it was an informal meeting to discuss about the resolutions.
He gave evidence also that it is the practice of UMP that in urgent meetings of the National Council, the Secretary General of the Party sent notice and agenda to all eligible members.
He further explained that there was a problem after they tried to reunite the two (2) factions of UMP and at the same time also the presidents of the regions made proposals to the National Council for a reshuffle of the Government. The Secretary General made a public statement to the effect that he could not help a UMP candidate for the coming by-elections. This witness explained that, it is part of human character which indicates that it was bad. He said it was difficult to ask the Secretary General to send out notice of the 20 August meeting. So he asked the Assistant Secretary General, Mr Jacques Nirua to sent notice of that meeting. He added that Parliament also was on session at that time and the Secretary General of UMP was a Minister of the Government at that time. There were seven (7) Government UMP members at that time. He said it was difficult to meet so he gave letters (Notices) of Government UMP Members of Parliament to Hon. Jacques Sese for him to distribute to them at the Parliament Building and he (the witness) distributes letters (Notices) to the Opposition UMP members.
He gave evidence on the UMP practice of the proxies in this way. It is usually difficult for the member to attend meetings. So the President of the regions wrote to the Secretary General to inform the National Executive about their representation. Further, the National Council is not a close body. It is open for attendance but non eligible members cannot vote. Only those who have mandate to vote, can vote. He did explain also that because it is difficult to get people from the Island to Port-Vila to attend the meetings, the practice is for the President of the regions to write and authorise a different person from the same area who lives in Port-Vila. He cited the example of Jean Baptiste who voted on behalf of Charlot Bibi, President of the region of Pentecost on 20 August, 1999 and he said the National Council accepted that.
He further gave evidence that UMP follow the Constituencies and that is what they call region. He said the National Council is composed of UMP members of N.E.C., UMP Presidents of the regions and UMP Members of Parliament. The total should be 34 members. As to the mandates, he explained by giving the example of the President of UMP who had 2 mandates: 1 mandate as President of UMP and another mandate as Member of Parliament. So if 1 eligible member has a proxy vote then that member will have his mandate plus the proxy vote. He said the 20 August 1999 meeting of the UMP National Council passed the resolutions with an absolute majority of its members.
He reiterated that the UMP National Council took resolutions on 20 August 1999 to maintain the unity of the Party. That was the purpose for such resolution. He insisted that he took such decision to maintain the solidarity within the UMP party.
In cross-examination, he confirmed he asked Mr. Jacques Nirua, the Assistant Secretary General of UMP to issue notice of the meeting of 20 August 1999 and he (the witness) signed the notices. He said there was no separated agenda of the meeting but just the notice. He confirmed he served notices of the said meeting of the three (3) UMP opposition members of Parliament and Jacques Sese served notices on Seven (7) Government UMP Members of Parliament. He further said he did not know whether Jacques Sese served all members of the National Council on the UMP Government side.
He confirmed he asked the Assistant Secretary General of UMP, Jacques Nirua, to serve notice of 20 August 1999 meeting on the members of the National Council although he knew that Mr. Henri Taga, was duly elected UMP Secretary General and at that time he was in Port-Vila. He confirmed the purpose of the 20 August meeting was to hear the result of the discussions between Boulekone and the Prime Minister. He also admitted that in addition to hearing information, the UMP National Council did, on 20 August 1999 passed some resolutions. He also gave detailed explanation about how an area can become a region under the Constitution of the UMP. He also gave evidence to the effect that some members of the UMP National Council who left the UMP to join a different political party, are still considered as a UMP members because they did not formally resign from the party and he gave the example of Thomas Faratia.
The second affidavit evidence by Mr. Vohor on 9th June 2000 is not relevant to the issue at hand and is therefore rejected.
RW2 – Mr. Jacques Nirua- Assistant Secretary General of the UMP
He gave evidence he was the Vice-Secretary General of National Executive Committee (NEC) of the UMP. The UMP President and the Chairman of the NEC are Hon, MP Serge Vohor. The Vice President of the UMP is Hon, MP Vincent Boulekone and the UMP Secretary General is Hon. Henri Taga. Hon. Boulekone and Taga were in the coalition Government UMP group.
He said because of this, then the President is Vohor and he, as Vice-secretary general, assumed the functions of the UMP Secretary General.
He said that UMP National Council members attended meetings on 14 & 16 August 1999. He produced and marked “A” copies of notices sent to the members.
He said that on 14 & 16 August, 1999 it was decided that: -
(i) tufalla UMP fasksons I mas kam tuketa wan ples bakeken mo joinem kafman;
(ii) mekem re-arrangement long UMP member long Kafman follem (I) blong akomodeitem arrangement long (I);
(iii) Re-arrangement ya ia I mas tek place long 17 August, 1999.
He produced and marked “B” a copy of the resolutions of the 14 and 16 August, 1999.
He said further that the UMP National Council met again in an extraordinary meeting on 20 August, 1999 and passed the resolutions as he produced and marked “C” to his affidavit of 14 October, 1999.
He gave evidence that on 20 August, 1999 majority of the members were present in the National Council meeting. He produced and marked “D” a copy of the list of UMP National Council members.
He said on the meeting, some of UMP members of the National Council voted by proxies. He then produced copies of the authorisations and marked “E” to his affidavit. Some members have more than 1 or more than 2 votes because the votes were counted according to the mandate of the members. He gave the example of his own situation. He had 3 votes: 1 vote is for him as the regional President of Tafea; 1 vote is for him as the member of the N.C.E, and 1 vote he did by proxy on behalf Mark Iauto, a member of the N.E.C., who authorised him to do so.
Others, who had issued 2 votes in the meeting of 20 August 1999, followed the same procedure. And the resolutions were taken by a clear absolute majority.
He prepared the notice of the meeting of 20 August, 1999. He said he issued the notice as annexed to his affidavit and marked “A” to call on all UMP National Council members to come on the meeting of 20 August. The content of that document reads:-
“Serge Vohor
President blong UMPI go long Memba blong National Council blong UMP, mi stap raetem leta i kam leta long yufala blong infomem yufala se bae yumi kat wan miting long Friday 20 Septemba ’99 long Anaburu long Nakamal blong Boulekone long 5.00pm blong infomem yufala abaot ansa blong resolusen 1 mo 2 blong National Council blong 16 August 1999.
Presence blong yufala hemi impoten.
Thank iu
Hon. MP SERGE VOHOR
PRESIDENT UMP PARTY”He stated that, sometimes, the agenda of the meeting was contained in the notice. Here, it was clearly stated that the meeting was to inform members about the outcome of the discussions between Mr. Boulekone and the Prime Minister.
The notices were given to the UMP president to distribute to UMP Members of Parliament in Parliament and he distributed others on the Ministry of Finance (Willie Jimmy), Agriculture (Boulekone), Infrastructure (Henri Taga). He said there was no notice sent to the regional President on the islands because they are still in Port-Vila. He said he and Noel Tabiusu served a notice on Rene Haoul by living a copy to Haoul’s sister at Anabrou. He met with Rene Haoul next day. Haoul told him he could not go the meeting.
On 20 August 1999 meeting, they waited for the quorum to be reached and there were 20 members out of a total of 34 members.
He said Mr. Boulekone was at the Nakamal on 20 August 1999 because he was the Chief of the Nakamal. Boulekone left at the beginning of the meeting and did not come back until the meeting was closed.
But he said Jacques Sese talked to Boulekone in the Nakamal about the resolutions taken on 20 August meeting. Boulekone said words to the effect that “hemi olright nomo, sipos mifala I resign after bae yumi formem wan niu government”.
In cross-examination, he admitted that when the UMP President asked him to issue the notice of 20 August meeting, he knew that, Mr. Henri Taga was the UMP Secretary General and he was at Port-Vila. He said he wrote down the notice on 18 August 1999 and the date of 20 September 1999 was a mistake.
There is no other agenda. The only agenda was in the notice itself. He did not serve Willie Jimmy but he left a notice at the Secretary of the Ministry of Finance. He said he left notices for regional Presidents who have contacts with the Government UMP ministries.
He said he sent the notice of Alick Morrison through the Ministry of Ni-Vanuatu Business. Members’ Kora Maki, Charles Smith did not attend the meeting of 14 & 16 August 1999. He did not contact them and no notices were served on them for the 20 August meeting. Further he said he did not serve Charlot Bibi, Able Louis, he said he sent message by telephone to notify member Gilbert Mermer. Finally, John lee Solomon and Thomas Faratia did not receive notice because he did not issue the notice of 20 August meeting to them.
RW3 – Mr., Noel Tabiusu
He gave evidence that he was involved in the distribution of the notice of 20 August 1999 meeting. He went with Jacques Nirua and delivered the notice to Rene Haoul.
RW4 – Jacques Sese – Member of Parliament, Ambae Constituency
He gave evidence that in 1999, he was a Member of Parliament and Leader of the Government Business in Parliament. He was also a member of UMP National Council. He said there was a meeting of UMP National Council on 20 Adjust 1999. At that time he was with the UMP group in the Government together with the Applicant, Willie Jimmy.
He said UMP President gave him envelops containing notices of 20 August meeting to be distributed to UMP Members of Parliament on the Government side. He explained that after the Parliament session, he left the envelops on the desk of each of the following Government UMP Members of Parliament: Hon, Willie Jimmy, Hon. Vincent Boulekone, Hon. Henri Taga, Hon, Paul Telukluk and Hon. Willie Posen.
He gave also evidence that after the Parliament session, one of the Government UMP Members of Parliament asked him if he received a notice. He asked the said Member which meeting and he replied the UMP President called for a meeting. He said it was hard for him to remember but after the Parliament session the Government UMP Members said they had commitments as Ministers of the Government. He did attend the 20 August 1999 meeting of the UMP National Council and took part in the proceedings and voted for the resolutions taken at that meeting.
In cross-examination, he said the Parliament session was on 20 August 1999. The meeting took place in the afternoon on that day. He did not read the content of the envelops given to him by UMP President but UMP President informed him that the envelops contain notices for the meeting.
He confirmed he put the envelopes on the desk of each Government UMP Members of Parliament.
He said also that he did not know if each of them received the notice but as a solidarity team, they said they had commitments as Ministers of State.
He did not know about the arrangements made by Jacques Nirua.
He gave evidence that Hon. Paul Telukluk asked him whether he knew about a meeting called by UMP President and that the meeting was to be held at Mweballehan Nakamal.
RW5 – Willie Posen – Members of Parliament of Tanna Constituency
He said he is a UMP National Council member as a UMP Member of Parliament in 1999.
He was aware of the UMP National Council meeting of 20 August 1999. He participated and voted for the resolutions taken at that meeting. He gave evidence that at that time, he was a Government UMP Member of Parliament and he supported the then coalition Government together with the Applicant, Willie Jimmy.
The notice of 20 August meeting mentioned for the meeting and the place of the meeting was at MP Boulekone’s Nakamal. He said he talked to Hon. Jacques Sese and he mentioned to him that he did distribute the notice of that meeting.
In cross-examination, he said Jacques Sese distributed the notice of the meeting of 20 August 1999.
He gave evidence that he believes that the meeting of 20 August 1999 was a National Council meeting but he did not know whether all the UMP Members of Parliament individually received the notice for the meeting.
He did not recall exact time when the Parliament did break but he said Parliament had short breaks every evening about 4.00pm o’clock.
He confirmed also that when he attended the meeting of 20 August 1999, he knew that the purpose of the meeting was for the UMP National Council members to be informed about the result of the discussions between MP Boulekone and the then Prime Minister of Vanuatu. He stated further that the notice of the meeting was for that purpose.
In re-examination, he clarified further that the UMP National Council of 20 August 1999 passed some resolutions and the National Council has the power to make resolutions.
RW6 – Josias Moli – Member of Parliament for Malo/Aore Constituency
He gave evidence that in 1998, he was elected as a Member of Parliament and as UMP member, he was also UMP National Council member. He was aware of the meeting of 20 August 1999. He participated, cast his votes in favour of the resolutions adopted at the said meeting.
He cast 2 votes: 1 vote for himself as the member of UMP National Council and 1 vote by proxy on behalf of the President of Malo/Aore region, Mr. William Sumbe – who gave him authorisation by letter. He believed that his votes were valid.
In cross-examination, he said that a UMP Member of Parliament is also a member of UMP National Council. He said that the Court declared that his election in 1998 was not valid so he said despite that Court’s declaration, he was still member of National Council.
He relied on the example of 1988, where Parliament did sack 18 UMP Members of Parliament. They remained UMP National Council members. On that basis, he said he was qualified as a member of UMP National Council, despite the Court’s declaration that his election in 1997 was invalid.
He denied that the proxy letter he got from William Sumbe was sent after the meeting of 20 August 1999. He got confused as to whether he got the copy or the original of the said letter.
RW7 – Adrien Malere – Member of UMP National Council & Vice President of the region of Malekula
He attended the meeting of 20 August 1999, participated and cast his votes for the resolutions adopted at the meeting. He cast 2 votes: 1 vote for him as a member of the National Council representing Malampa Province and 1 vote on behalf of the President of Malakula region.
In cross-examination, he explained that although only a President of the region has the right to vote in a UMP National Council meeting, he gave evidence that for the region of Malekula, a regional congress held at Rory village, Malekula, back in 1992, provided that the vice President who lives in Port-Vila, can vote on behalf of the President. It is part of a normal practice.
As to the meeting of 20 August 1999, the President of Malekula returned to Malekula after the meeting of 14 & 16 August and did not inform him about his return. So he said he did not need to get authorisation from the President of Malekula region and he could vote without it.
He received notice of the 20 August 1999 meeting.
RW8 – Gaetan Pikioune – President of the region of Santo
He gave evidence that he was informed about the meeting of 20 August 1999. He could not attend so he authorised Hon. Jean Alain Mahe to vote by proxy on his behalf. He confirmed his authorisation by letter sent to UMP President.
In cross- examination, he said he faxed his authorisation through the Ministry of Foreign Affairs and MP Jean Alain Mahe got the facsimile message and the original was in the file. He got the message by phone by Mr. Jacques Nirua, the Assistant UMP Secretary General, that there was a UMP National Council meeting to be held on 20 August 1999.
He stated clearly that the purpose of the said meeting of 20 August 1999 was to inform the UMP National Council members about the outcome of the resolutions taken by the UMP National Council meeting of 14 & 16 August 1999. He repeated that was the sole purpose of the meeting of 20 August 1999.
RW9 – William Sumbe – President of the region of Malo/Aore
He gave evidence that he was elected President of the region of Malo/Aore and as such is a member of the UMP National Council.
He did not attend the meeting of UMP National Council but he said he sent his vote by Proxy to Josias Moli so that he could vote on his behalf because on 20 August, 1999, he was in Luganville, Santo.
In cross-examination, he said he sent his proxy vote by fax to Mrs. Jacques Nirua, via the Office of Public Works, on 19 August 1999. He denied he sent the proxy after 20 August 1999 meeting.
He confirmed that the purpose of the meeting of 20 August 1999 was for the UMP National Council to be informed about the outcome of the discussions between Boulekone and the then Prime Minister of Vanuatu about the change of Government. He repeated it was for that purpose only. It was for information.
He said at that time when he sent his proxy vote to Josias Moli, he knew that Josias Moli was not a Member of Parliament. But he said the practice is to send proxy to any person who will be the Member of Parliament.
RW10 – Alick George Noel – UMP President of the region of Port Vila
He said he was a member of UMP National Council. He was aware of the meeting of 20 August 1999. He participated and cast his vote for the resolutions adopted at the said meeting.
In cross-examination, he said he received the notice of that meeting. There was no other notice. The purpose of the meeting of 20 August 1999 was to hear the outcome of the discussions between MP Boulekone and the Prime Minister. He said that there was no other resolution adopted.
RW11 – Henri Keke
He gave evidence that he was the President of the region of Luganville and as such he was a member of the National Council.
He was aware of the meeting of 20 August 1999, but did not attend. He authorised Mr. Alfred Maliu to vote for him by proxy.
He sent his authorisation by fax on 19 August 1999. He was not contacted by the UMP Secretary General but by the Assistant Secretary General of UMP, Mr. Jacques Nirua.
In cross-examination, he said the Assistant Secretary General of UMP called them by phone to come on the meeting of 20 August 1999 to get information about the outcome of the discussions between Mr. Boulekone and the Prime Minister on the resolution of 14 & 16 August 1999.
RW12 – Mark Iauto
He said he was the President of the region of Tafea and as such he was a member of the UMP National Council. He was aware of the meeting of 20 August 1999. He did not attend but sent authorisation to Mr. Jacques Nirua to vote for him by proxy.
In cross-examination, he said he received the message by phone that there was a UMP National Council. He did not know about the purpose. He made a letter to authorise Mr. Jacques Nirua. He left the letter at the Public Works Office, Tanna Section, He did not know who typed the letter and who did fax it.
RW13 Tom Lorry
He said he was the UMP President of Tongoa Region, after the Electoral Commission declared that the shepherds Districts has two (2) Constituencies in 1999. He said he was the President of Tongoa region. He did not know who was the UMP Preisident of the Shepherds. He was aware of the meeting of 20 August 1999. He participated and cast his vote.
In cross-examination, he said he knew that since 1997, Alick Morrison was elected the President of Tongoa region, He said he was elected President of Tongoa region by the Tongoa UMP Committee.
He said that he did not participated at the UMP National Council of 14 & 16 August 1999, and did not vote because Alick Morrison was present and took part at the meetings. The Secretary General of UMP refused to accept this witness letter as President of UMP for the region of Tongoa. However, he said, on 20 August 1999, Alick Morrison was not present at the meeting, so he was present and voted for Tongoa region.
RW14 William Tari
He gave evidence that he was not a member of UMP National Council. However, he said he was aware of a meeting of the UMP National Council on 20 August 1999. He said he took part in its deliberations and voted for the resolutions taken by the National Council on 20 August 1999.
He testified he got authorisation to vote from the UMP President of Ambae region, Mr. Dickinson Vusi, he voted on his behalf.
He said that on the meeting of 14 August 1999, Mr. Charlot Bibi was not present at the meeting. He asked Jean Baptiste to vote on his behalf. The National Council accepted that practice. He said the National Council accepted that he voted at the meeting of 20 August 1999.
In cross-examination, he said if Mr. Dickinson Vusi did not give him his proxy authorisation, he would not vote. On 20 August 1999, he said he was not aware whether the UMP Secretary General was present at the meeting. He insisted he had authority to vote in lieu and on behalf of Dickinson Vusi.
That is the end of the Respondent’s case and the end of the evidence in this case.
DISCUSSION ON EVIDENCE
Upon assessing the evidence in this case, the following findings were established:-
On 14 and 16 August, 1999, the National Council of UMP held a meeting at Mwebalehan Nakamal at Port-Vila. At that meeting, the National Council passed 6 resolutions as annexed and marked “A” to the affidavit of the Applicant, Willie Jimmy Tapanga Rarua, filed on 26 August 1999.
The Applicant, Willie Jimmy, Vincent Boulekone, Henry Taga, Paul Telukluk and others participated and voted for the resolutions. Resolutions 1 and 2 were to the effect that the Government UMP faction and the Opposition UMP faction were reunited and joined the Government as from 16 August, 1999 and that there will be a rearrangement of the UMP faction in the Government by 17 August 1999.
Mr. Vincent Boulekone was charged with the mission by UMP President to inform and discuss the UMP proposals to the then Prime Minister, Hon. Donald Kalpokas. Mr. Boulekone met with the then Prime Minister and put the proposals to him. The Hon. Prime Minister accepted the idea and waited to see whether the Opposition UMP faction will join the Government side in Parliament on 17 August, 1999.
After their discussions, Mr. Boulekone and the then Prime Minister had kava to seal the result of their discussions. It was late night, Mr. Boulekone did not communicate the outcome of their discussions on the same night to UMP President and the other members of UMP National Council who were present on 16 August 1999 meeting. His intention was to inform the UMP President of the outcome of the discussion at the Parliament session the next morning. This did not eventuate since the Opposition UMP faction did not attend the Parliament session on the morning of 17 August 1999. For whatever reasons there might be, this leads to some misunderstandings between the two UMP factions which subsequently, generated further political saga between the two (2) UMP factions.
An extraordinary National Council of UMP meeting took place on 20 August 1999 at Mwebalehan Nakamal at Anabrou, Port-Vila. At that meeting, the following resolutions were adopted:-
“UMP EXTRA-ORDINARY NATIONAL COUNCIL
20 AUGUST 1999
MWEBALEHAN NAKAMAL PORT-VILA
INTRODUCTION: Felia blong complae long resolution No.1, 2 mo 3 we National Council tekem long MWEBALEHAN Nakamal long Port-Vila Efate long 14 mo 16 August 1999,
UMP extra-ordinary national council we I sidawn long MWEBALEHAN Nakamal long 20 August 1999 i resolve se:
RESOLUTION:
1) Any memba or groupe blong UMP we babai I compaign against wan UMP candidat long by-Election blong 31 August 1999, bae President blong UMP party i mas suspendem hem long party until next Congress.
2) Evry minista mo MP blong UMP party we oli stap longGavman oli mas risaign long posesen blong olgeta insaed long Vanuatu Gavman long i Septemba 1999 blong formem wan new coalisen Gavman we I gat fear representation long saet blong UMP party.
3) President blong party i mas suspendem any minista or memba blong Parlemen long UMP party sapos hemi no complae wetem resolution No.2 stat long No. 1 Septemba 1999.
CONCLUSION: Ol resolution ia oli made bae ol 20 memba blong National Council blong UMP party (look annex 1).
…”
Mr. Henry Taga, the duly elected Secretary General of UMP did not issue and serve notices for 20 August 1999 meeting. He was in Port-Vila at the time of issuing and services of the notices.
It seems that the document annexed to Mr. Jacques Nirua’ affidavit of October 1999 as Annexure “A” is the only document issued as notice for the meeting of 20 August 1999. Mr. Jacques Nirua, the Assistant Secretary General of UMP, issued the notice which was signed by the President of UMP, Hon. Serge Vohor Rialuth. The said notice which was issued on the UMP official letterhead, read as follows:
“Serge Vohor
President blong UMPI go long Memba blong National Council blong UMP, mi stap raetem leta I kam long yufala blong infomem yufala se bae yumi kat wan miting long Friday 20 Septemba ’99 long Anamburu long Nakamal blong Boulekone long 5.00 pm long infomem yufala about ansa blong resolusen 1 mo 2 blong National Council blong 16 August 1999.
Presence blong yufala hemi impoten.
Thank iu.
Hon. M.P. SERGRE VOHOR
PRESIDENT UMP PARTY”It becomes then obvious that the only agenda for the meeting of 20 August 1999 is that contained in the notice which was to inform members of the National Council of UMP about the answer of resolutions 1 and 2 passed by the National Council on 16 August 1999.
It is also established that the sole purpose of the meeting of 20 August 1999, was for members of the National Council to be informed of the results of the discussion which Mr. Boulekone had with the then Prime Minister of Vanuatu in respect of the National Council’s resolutions 1 and 2, passed on 14 and 16 August 1999. This is confirmed by the evidence from the majority of both the Applicant and Respondent’s witnesses. Further, it is also accepted as testified by Mr. Vohor that some resolutions were also passed by the extraordinary UMP National Council on 20 August 1999.
It is not disputed that the members of the National Council should properly comprise, Serge Vohor, Jean Alain Mahe, Jimmy Imbert, Jacques Sese, Vincent Boulekone, Paul Telukluk, Irene Bongnaim, Willie Jimmy, Henri Taga, Willie Posen, Alfred Wilson, Gaetan Pikioune, Henri Keke, William Sumbe, Dickinson Vusi, Charlot Bibi, Lucien Litoung, Rene Haoul, Alick George, John Lee Solomon, Marc Youndu, Thomas Brody Faratia, Adrien Malere and Alfred Maliu as Annexure “E” of the Affidavit of the applicant dated 26 August 1999.
It is not disputed that Mr. Vincent Buoulekone was at the Mwebalehan Nakamal at the start of the meeting of 20 August 1999. The reason being that the Nakamal belongs to his people’s association and as a Chief and a leader of the people of Pentecost whose Nakamal it is, it was proper in Vanuatu custom that he be there at that time to welcome participants of that meeting. Mr. Vohor and Mr. Jacques Sese’s evidence confirm Mr. Boulekone’s reason for being there at the start.
Although Mr. Vincent Boulekone did not participate nor did he vote at the meeting of 20 August 1999, he had such knowledge of the said meeting constituting a notice on him personally as to give him the opportunity of attending it.
It is also established by evidence that Mr. Rene Haoul was aware of the said meeting. He has such knowledge as to give him the opportunity to attend, participate and vote at the meeting of 20 August 1999.
Willie Jimmy Tapanga Rarua, Henri Taga, Paul Telukluk, Alick Morrison, Lucien Litoung, Kora Maki, Charles Smith, Charlot Bibi, Abel Louis, Gilbert Mermer, John Lee Solomon, Henri Keke, Gaetan Pikioune, William Sumbe, Mark Iautu and Dickinson Vusi did not attend the UMP National Council meeting of 20 August, 1999.
Mr. Jacques Sese and Mr. Willie Posen were on 20 August 1999 part of the Government UMP faction (see their own evidence) and participated and voted at the meeting of 20 August 1999. I accept Mr. Jacques Sese’s evidence that he did put envelopes containing notice of 20 August 1999 meeting on the desk of each of the Government UMP Members of Parliament. However, as he said he did not know whether each Government UMP Members of Parliament received the notice of the said meeting. But he said further that MP Paul Telukluk mentioned to him about the fact that the UMP President called for a meeting on 20 August 1999.
This indicates also that MP Paul Telukluk knew about the said meeting of 20 August 1999. This knowledge constitutes an opportunity for him to attend the meeting.
No notice of the meeting of 20 August 1999, was personally served on the following people, Willie Jimmy Tapanga Rarua, Henri Taga, Alick Morrison, Lucien Litoung, Kora Maki, Charles Smith, Charlot Bibi, Abel Louis, Gilbert Mermer, John Lee Solomon.
The following people were present at the meeting of 20 August 1999, Serge Vohor, Irene Bongnaim, Jacques Sese, Willie Posen, James Imbert, Jean Alain Mahe, Tome Lorry Malango, Alick George Noel, Jacques Nirua, Adrien Malaere, William Tari and Joshias Moli.
It is established that on 20 August 1999, two UMP members, William Tari and Josias Moli were present, participated and voted at the meeting of 20 August 1999 although both were not duly elected members of the UMP National Council.
It is also a fact that proxies were given by these people for the meeting of 20 August 1999: Henry Keke, Gaetan Pikioune, William Sumbe, Mark Iautu, and Dickinson Vusi.
Finally, it transpires from the resolutions passed by the extraordinary meeting of UMP National Council of 20 August 1999 as Annexure “B” of the affidavit evidence of the applicant the following:-
1) Resolution 1
“Any memba or groupe blong UMP we babai i compaign against wan UMP candidet lon by-election blong 31 August 1999, bae President blong UMP party I mas suspendem hem long party until next congress…”
This can best be translated this way:-
(“No UMP member or group shall campaign against a UMP Candidate on the By-Election of 31 August 1999, If so, then, the UMP President must suspend him or them from the Party until the next Congress…”)
In effect, resolution 1 has two limbs:-
The first limb is this:
“No UMP member or group shall campaign against a UMP candidate on the By-Election of 31 August 1999,…”
And the second limb, then, is:
“…the UMP President must suspend him or them from the Party until the next congress…”.
It is clear that a failure by a UMP member/group to comply with limb 1 of the resolution 1 constitutes an offence, the sanction of which is contained in limb 2 of resolution 1.
2) Resolutions 2 and 3
Both resolutions 2 & 3 can be best translated in these terms:
“2. All Government UMP Ministers and Government UMP members of Parliament shall resign from their Ministerial Portfolios within the Vanuatu Government on 1 September 1999 to form a new coalition Government reflecting a fair UMP representation.
3. The President of the Party shall suspend any UMP Minister or UMP Member of Parliament who do not comply with resolution 2 as from 1 September 1999.”
It is also clear that failure by government UMP Ministers and government UMP Members of Parliament to comply with Resolution No. 2 becomes an offence with immediate sanction as contained in Resolution No. 3.
It is an established fact that the Resolutions passed by the extraordinary meeting of UMP National Council on 20 August 1999 constitute decisions of disciplinary nature affecting the UMP members, UMP Government Ministers and Members of Parliament at that time.
APPLICATION OF THE LAW TO THE FACTS AS FOUND BY THE COURT
I now propose to answer the 2 questions posed for the determination by the Court.
1. Can the National Council of UMP pronounce disciplinary sanctions against UMP Members without consulting the National Disciplinary Committee?
The answer to this question is No. 1 now produce the reasons of this conclusion.
The Constitution and By-Laws of the UMP establish the procedure and the process of disciplinary sanctions against a UMP Member. The administrative Structure of the UMP and different level of disciplinary sanction and respective bodies as per the UMP Constitution and By-Laws are reproduced in Chart 1 and Chart 2 (as Annexed to the Judgment).
The UMP as a political party is composed of areas grouped in Regions (Section 1).
Section 3 says that each region shall have a regional Council, comprising of:-
- Member of National Executive Committee in the region;
- UMP Members of Parliament;
- UMP Members of Municipal Councils;
- UMP Members of Local Governments;
- Delegates elected by the Area Committee
If a UMP member commits an offence as specified under Section 46 of the constitution (UMP), and /or any other offence that the region, the disciplinary Committee or the National Council consider contrary to the Party’s interests (Section 46), then Section 8 of UMP constitution says that each region shall exercise disciplinary powers against its members under the conditions defined in Section 45. This constitutes the first level of disciplinary procedure.
If a UMP member is not happy with the disciplinary decision of the Regional Council then he/she shall lodge an appeal before the National Disciplinary committee. This constitutes the second level of disciplinary procedure/process as set out under Section 45 of the UMP Constitution. Section 45 provides:
“The National Disciplinary Committee shall hear all appeals made by members against disciplinary sanctions taken by the Region and shall report to the National Council for its final decision.”
Section 45 is confirmed and reinforced by Section 24 in that:
“It (National Council) shall pronounce disciplinary sanctions, after consultation with the National Disciplinary Committee”
This is the third and final level of disciplinary sanction as provided under UMP Constitution.
Section 47 provides for various sanctions that the National Council may pronounce in its final disciplinary decision as the final disciplinary body.
Section 47 provides:
“Sanctions that may be pronounced against members, Areas, and Regions by the National Council are as follows:
· p;&nbbsp; sp; warning with instruction for correction
· p;&nbbsp; sp; second warning
· &nbbsp;& sp; temporary expulsion/suspension <
· p; s span>definitive expulsion/termin.
p>Only expulsions shall be made known to the public.”
It is a duty/obligation on the National Council in the exercise of its disciplinary power and before its exercise, to consult with the National Disciplinary Committee. It is the duty of the National Council to ensure the implementation of the UMP Constitution (Sect. 23). Further it is the responsibility of the National Council to elect a Disciplinary Committee composed of 7 members. The disciplinary Committee Members shall be elected because of their reputation, equity and their legal background (Sect. 43).
Therefore, the Respondents’ contention that the National Council has a constitutional and inherent power to sanction UMP members without consulting the National Disciplinary Committee cannot stand and is therefore rejected.
In the present case, assuming that on 20 August 1999, the National Council was properly constituted, the proceedings were validly made then, the UMP National Council adopted resolutions 1, 2 and 3. On the basis of that assumption, the non-compliance with the first limb of resolution 1 and the resolution 2 by UMP members concerned, constitutes offences. The UMP National Council has the power to define offences under Section 46 of the UMP By-Law which is part of the UMP Constitution.
Section 46 defines offences including:
“…any other offence that…the National Council consider contrary to the party’s interests.”
It is clear that once the UMP National Council is satisfied that the non-compliance with the first limb of resolution 1 and the whole resolution 2 constitutes offences, then the National Council must refer the matters to the Regional Council to which each UMP offending member is a member for the purpose of disciplinary sanction as provided by section 8 of the UMP Constitution.
This is supported by Sect. 7 which says that the Regional Council has the responsibility to administer and to implement the decisions taken by the National bodies and the National Council is one of these national bodies within the UMP structure as contained in the UMP Constitution.
It is important to understand that the UMP National Council as the final disciplinary body, has the power to pronounce disciplinary sanctions against offending UMP members as provided by UMP Constitution and By-Laws. But the exercise of that final disciplinary power must be done in consultation with the National Disciplinary Committee as per the UMP Constitution (Sect. 24).
On 20 August 1999, the National Council by passing resolutions 1 and 3 as it did, immediately pronounced disciplinary sanctions against some UMP members without consulting with the National Disciplinary Committee. This is contrary to the Constitution and By-Laws of the UMP.
2. Are the decisions or resolutions taken by the extraordinary UMP National Council meeting of 20 August, 1999 ultra vires and of no effect and should be quashed?
The answers to question 2 will follow from the answers to sub-questions (a), (b) and (c).
(a) Is there authority for the UMP President to decide and direct the Assistant Secretary General, to issue and serve the notice for National Council on 20 August 1999?
The applicant contended that there is no authority for the UMP President, to issue and service the notice of the meeting of 20 August 1999 in the name of UMP National Council. The secretary General of UMP is the person mandated by Section 36 of the Constitution of UMP to issue and serve notice of UMP meetings.
There is no special procedure to convey UMP National Council meetings under the By-Laws of UMP. The procedure which seems to be accepted by all parties concerned is that the National Executive Committee meets and decides on a meeting and then the Secretary General is asked by the Committee to issue and serve notices for the National Council meetings.
In my view, the applicant’s contention is not correct. The President of UMP as the leader of the Party (sect. 31), is responsible for the day to day running of the Party and is assisted by the National Executive Committee of UMP (Sect. 30). The Secretary General executes and implements the decisions of the Party under the directions of the President and the National Executive Committee.
Therefore, if the National Executive Committee did not meet and decide on an extraordinary meeting of the National Council, the President of the UMP can so decide. He has the power to so decide and directs the Secretary General to issue notices to all eligible UMP National Council Members. The National Executive Committee assists the President in the running of the Party.
The problem which arises here is that the UMP President, after deciding that an Extra Ordinary meeting of the National Council of UMP be held on 20 August 1999, did not direct the Secretary General to issue notice of that meeting to all eligible members of UMP National Council. He, instead, asked the Assistant Secretary general of UMP, Mr. Jacques Nirua, to issue notice for the said meeting, although Mr. Vohor Rialuth knew that the Secretary General, Mr. Henri Taga, was in Port Vila.
Whatever the reasons may be, as shown in Mr Vohor’s evidence, the UMP President acted within the ambit of his powers under the Constitution and practice of UMP. The UMP President has the power under the UMP Constitution and By-Laws to decide that the UMP National Council will meet on a date for the purpose of discussing and deliberating on some matters which have to be notified to all UMP National Council eligible members and contained in the agenda of that meeting.
If I am wrong in that holding, then, the irregularity (if any) constitutes a mere irregularity and does not vitiate the substance of the decision taken by the UMP President for a National Council meeting to be held on 20 August, 1999.
(b) Was the notice of 20 August 1999 meeting given to all eligible members of National Council?
The applicant contended that by reason of Section 26 of UMP Constitution, all eligible members of UMP National Council members did not received such notice.
The Respondents say that all UMP National Council members both in the Government faction and the Opposition faction were served.
The factual findings are that the following persons did not personally receive notice of the meetings of 20 August 1999, Willie Jimmy, Henri Taga, Alick Morrison, Lucien Litoung, Kora Maki,Charles Smith, Charlot bibi, Abel Louis, Gilbert Mermer, John Lee Solomon.
Further it is conceded by counsel for Respondents that no notice of the UMP National Council meetings of 20 August, 1999 were issued and served on Charles Smith, Charlot Bibi, Abel Louis, and Thomas Brothy Faratia.
I accept the Applicant’s contention that the notice of the meeting of 20 August 1999 was not issued and served on all eligible members of UMP National Council. In my judgment, the fact that some UMP National Council members have never attended previous National Council meetings is no ground whatsoever for not giving them the opportunity, and therefore, constitutes a bad excuse for not notifying them of the meeting of 20 August, 1999. This is quite clearly so. The meeting of 20 August 1999 of the UMP National Council is bad. It was an invalid meeting.
[See C.A. Young v. Ladies Imperial Club, (1920) 530]
(c) Is the notice issued for the meeting of 20 October 1999 defective and invalid?
The applicant contends that the notice for the meeting of 20 August 1999 is defective because it failed to set out in full all the particulars of the agenda that were deliberated upon at that meeting.
It has been established and not disputed by the Applicant and the Respondents that the notice of the UMP National Council meeting of 20 August 1999 sets out the agenda of the meeting as follows:-
“….blong informem youfala about ansa blong resolution 1 mo 2 long National Council blong 16 Okis 1999.”
It is not disputed that that was the only agenda.
This was confirmed by the Respondent’s witness cross-examination that the purpose for the meeting of 20 August 1999, was for all members of the National Council to be informed of the results of the discussion which Mr. Boulekone had with the Prime Minister of Vanuatu in respect of National Council Resolution 1 & 2, passed on 14 and 16 August, 1999. This was also confirmed by Mr. Vohor in his cross-examination and also he said in his evidence that:-
“ Hemi no really wan meeting’’.
Mr. Vohor finally said in his evidence that in addition, some resolutions were also passed by the UMP National Council extra ordinary meeting held on 20 August 1999.
As found by the Court and which is not disputed, these resolutions are disciplinary sanctions against a UMP member or group, UMP Government Ministers or UMP Members of Parliament supporting the UMP Government faction.
In my view, the notice was defective. The meeting of 20 August 1999 dealt with issues other than what was on the agenda. Because the meeting was specially called to hear the results of Mr. Boulekone discussion with the Prime Minister of Vanuatu, but passed resolutions 1, 2 and 3 as Annexure “B” in the affidavit of the Applicant dated 26 August, 1999, the meeting of UMP National Council held at the Mwebalihan Nakamal, on 20 August 1999 is a bad meeting and therefore invalid and must be quashed.
There is no need for me to deal with other matters for the purpose of considering and granting the relief sought under the Originating Summons (as amended) filed by the Applicant on 26 August 1999.
On the basis of the above considerations, the following declarations/orders were made:-
DECLARATIONS/ORDERS
1. That the National Council of the UMP does not have the power to pronounce disciplinary sanctions against members of the Party without consulting with the National Disciplinary Committee.
2. That the purported decisions of the UMP extraordinary National Council held on 20 August 1999, are ultra vires and of no effect.
3. That the purported decisions of the UMP extraordinary National Council held on 20 August 1999 are quashed.
4. Other relief sought were refused.
5. The respondents will pay the costs of this application.
DATED AT PORT VILA, this 26 day of June, 2000
BY THE COURT
Vincent LUNABEK J
Acting Chief Justice
PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/vu/cases/VUSC/2000/29.html