Tamau v Leo [2004] VUSC 79; Civil Case 019 of 2004 (28 May 2004)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 19 of 2004.

BETWEEN:

WENJIO TAMAU
Claimant

AND:

MR. WILFRED LEO
Defendant

Mr. Saling Stephens for the Claimant
Mr. Ishmael Kalsakau for the Defendant

DECISION ON AN INTERLOCUTORY APPLICATION

1. On 6^th February 2004 the Claimant made an urgent application seeking certain orders on the following grounds:-
   
   1. It is alleged that the election of the VTU Executive Committee members on 4^th December 2003 was in breach of the election procedures prescribed by the Constitution of the Vanuatu Teachers Union.
      
   2. All members of the union and the current VTU Executive Committee members are aware of this allegation and prefer that the Court address the issue and do not wish to discuss this issue with the union itself as many find themselves in positions of conflict of interest.
      
   100. There are allegations of misconduct within the union and it is in the best interest of the members throughout the islands that their Constitution is observed at all times.
        
2. The orders sought were granted. I have set them out below in their entirety:-
   

“a. The newly elected Vanuatu Teachers’ Union (VTU) Executive Committee Members who were elected on 4^th December 2003 are prohibited from taking office on Monday 9^th February 2004 until further Orders of this Court.

b. The newly VTU Executive Committee must not enter the premises of the VTU office until further Orders of this Court.

c. The current VTU Executive Members to continue in office until further Orders of this Court.”

3. At the hearing of the ex parte application the presiding Judge explained the relationship he has with the defendant in this proceedings. The claimant agreed for the matter to be heard by the presiding judge. But that another judge should hear the matter at subsequent hearings thereafter.
   
4. Matter was then allocated to the Chief Justice. At conference before his Honour the Chief Justice on 7^th April 2004, his Honour queried reasons why he was to deal with the matter and not the Judge in the first instance. The claimant did not maintain his objection.
   
5. On 25^th May 2004, the matter came before me again. I explained the relationship between the defendant, Mr. Leo and myself, again. No one, especially the claimant raise any objections to my hearing the matter.
   

Defendant’s case

6. On 25^th May 2004 the defendant made an interlocutory application seeking the following orders:-
   
   • (i) An order removing the majority of the current Executive Committee members, namely Charles Calo, Arsène Firiam, Loreen Bani, Samson Niras and Marcel Bomwel as being represented by Wenjio Tamau.
     
   • (ii) An order striking out the name of Wilfred Leo representing newly Elected Executive members of the Vanuatu Teachers Union and substituting by joinder the Vanuatu Teachers Union as the defendant.
     
   • (iii) An order setting aside the exparte orders issued by the Court on Friday 6^th February 2004.
     
   • (iv) Costs.
     
   • (v) Such other and or further order the Court may be pleased to make.
     
7. The grounds submitted in support of the orders being sought are as follows:-
   
   • (i) In relation to the First Order sought the claimant does not enjoy the support of the stated members of the former Executive and did not first obtain their consent to have them represented by him.
     
   • (ii) (a) In relation to the second Order sought the defendant’s election was a matter of Congress and not of his own doing.
     

(b) As Congress is the Supreme body of the Union it is proper that the Union rather than the defendant answer for its congress actions and the claimants complaint before the Court.

(iii) In relation to the third Order sought.

• (a) The Court has been misled by the claimant.
  
• (b) The claimant has acted in bad faith.
  
• (c) The claimant’s ability to remain in office is not provided for under the Constitution of the Vanuatu Teachers Union.
  
• (d) The claimant suffers no prejudice or disadvantage to warrant the intervention of the Court.
  

8. The defendant through his counsel urged me to grant the orders sought.
   
9. In relation to the first order sought the defendant says that the claimant does not enjoy the support of the stated members of the former executive and did not first obtain their consent to have them represented by him. The sworn statements of Charles Calo, Loreen Bani, Arsene Firiam, Marcel Bomwell, Samson Niras confirms this. This point was also conceded by the claimant. (Only two members of the old Executive were left out. The rest had joined the new executive.)
   
10. In relation to the second order sought the defendant submits that the election of the defendant as the new head of the executive of the VTU is a matter for the congress, and not of his own doing. The defendant has done nothing wrong. He has submitted his nomination form to contest the position of President of the VTU at the bi-annual General Meeting of the Vanuatu Teachers Union in December 2003 on Ambae in line with the Union’s Constitution.
    
11. Secondly, it is further submitted on behalf of the defendant that the VTU congress is the Supreme body of the union. It is proper that the union rather than the defendant answer for its congress actions and the claimant’s complaints before this Court. The union through its congress elected the defendant as the new head of VTU. It made that decision and only the congress should answer for it. The proper way to do that is to join the union as a party to the current proceedings. The defendant has no standing before the Court.
    
12. Counsel for the defendant referred the Court to the oral decision of this Court in the case of Nakat Willie & Ors. –v- Hon. Jimmy Niklam MP & Ors., Civil Case No. 39 of 2004. Certain members of the Vanuaaku Party were not happy with the results of the elections of new office bearers elected on 22^nd October 2003 on Malekula at the party congress. The complainants were not at the election. The complainants asked the Court for certain orders. The relevant one is that pending the final outcome of the Court proceedings and pending the election of new executive council, both the outgoing President and the honorary President shall jointly administer the Vanuaaku Party affairs.
    
13. The application was an urgent one for interlocutory order as in this case. The Court refused to grant the orders sought. Counsel referred the Court to page 8 of the decision where the Court made the following pronouncements:-
    

“As to the order sought for the interim mandatory order that the outgoing President and the Honorary President jointly administer the party affairs pending a Court decision, that is not, as it has submitted to me, envisaged by the Vanuaaku party constitution.”

14. In the present case Article 9.1 of the VTU Constitution is very clear in as far as it relates to the term of the President. It says that “the President shall be elected in the manner prescribed ... shall serve for two years and shall be eligible for re-election.” The VTU Constitution does not envisage such a situation where the VTU President will continue in office after his or her term has expired.
    
15. Counsel further submits that the claimant must be able to satisfy both requirements of rule 7.5 of the Civil Procedure Rules and that this has not been established. The claimant will not be seriously disadvantaged if the orders sought are obtained.
    
16. The claimant at that time of the Bi-annual General Meeting at which elections for a new President was conducted on Ambae was the head of the union. He was the man in charge of the Executive who had overall responsibilities for the proper administration of the affairs of the VTU including the conduct of elections of new office bearers.
    
17. The defendant also stood for elections. He was at the general meeting for at least a few days before leaving to attend meetings outside the country. This is confirmed in the sworn statements of Mr. Carlot, Mr. Laurent Leingkone and Mr. Tamau (the claimant). The office he was in charge of was distributing forms up to a day before the general meeting began. In his own sworn statement at paragraph 6 it clearly showed that he was well aware of what was happening did not question it and went along with it. He supported it.
    
18. In relation to the third order sought the defendant through his counsel submits that:-
    
    • (i) The Court has been misled by the claimant.
      
    • (ii) The claimant has acted in bad faith.
      
    • (iii) The claimant’s ability to remain in office is not provided for in the Constitution of the Vanuatu Teachers Union.
      
    • (iv) The claimant suffers no prejudice or disadvantage to warrant the intervention of the Court.
      

Claimant’s case

19. The claimant through his counsel:-

(a) Conceded that Mr. Leo, the defendant has done no wrong;

(b) Conceded that the claimant is not challenging the election of Mr. Leo as President elect of the VTU.

(c) Conceded that the proceedings were commenced to prevent the defendant, Mr. Leo, from taking office.

(d) Conceded that the proceedings were about alleged irregularities concerning the conduct of the elections of the new office bearers of the VTU in early December 2003 on Ambae. This is specified as ground 2 of the urgent application filed in support of the claim on 6^th February 2004.

(e) Conceded that the proceedings were commenced also due to concerns about “allegations of financial mismanagement within the union” as is set out in paragraph 4 of the affidavit of urgency filed in support of the claim on 6^th February 2004.

(f) Submitted that it is not the intention of the claimant to sue the Vanuatu Teachers Union. That he does not agree for the Union to be joined as a party in this proceedings but that if the Court finds that anybody else is responsible then those persons should be joined.

(g) Conceded that the proceedings were commenced because the defendant, Mr. Leo failed or refused to attend two meetings called by the Interim Committee.

Findings

20. The findings regarding the second order being sought (striking out the name of the defendant and substituting the Union) in these proceedings is a most essential one. The proceedings can fall or stand depending on which side the pendulum swings. I have read written submissions by both parties and heard oral submissions and in my view the findings of the Court as to the standing of the defendant in this matter is crucial. Therefore I propose to deal with this first.
    
21. The claimant at the time of the elections was the head of the Vanuatu Teachers Union. In that position he was also head of the Executive Committee. As President of the union his role is clearly set out under Article 9.1 of the VTU Constitution. I set out below the relevant provisions of that article. It states:-
    

“The President ... shall, with the assistance of the General Secretary and General Treasurer, superintend the general administration of the affairs of the union and shall endeavour to secure the observance of the unions rules by all concerned.”

22. The duty was on him and the General Secretary and the General Treasurer to ensure that the members of the union, including the members of the executive committee, do comply with the union’s rules inclusive of the Constitution. He now cannot turn around and point fingers at the General Secretary or the defendant, or anyone else for that matter. It was his duty to ensure that everyone adheres to the rules of the VTU, including himself.
    
23. The rule setting out the time when nominations must be received by the VTU office and who must sign the nomination form is clear and is found in article 5.4 (a) (3). It states:-
    

“To elect officers and organizers of the union.

Nomination for these positions shall be received not less than 28 days prior to the General Meeting. Nomination shall be signed by two financial members and the person being nominated also signed.”

24. In his sworn statement dated 19^th March 2004 the claimant conceded that he okayed the lodging of nomination forms very late and close to the time for elections of new office bearers. He stated at paragraph 6:-
    

“Long 2 December 2003 ol nominations ino klos iet mo mi saenem 2 nominations we i kam long branch blong Port Vila Central mo Malekula Central ....”

25. I make the following findings:-
    
    1. The defendant has no locus standi in these proceedings. He should not have been joined as a party.
       
    2. The defendant’s election as the new President to the VTU is not being disputed.
       
    3. The proceedings were commenced to prevent the defendant from taking up office despite the fact that he has done no wrong. This does not establish a cause of action against the defendant.
       
    4. The proceedings concerns alleged irregularities prior to or during the conduct of elections of new office bearers at the VTU bi-annual congress in December 2003 on Ambae. This does not establish a cause of action against the defendant. The proper party would be the Union.
       
    5. The proceedings relate to allegations of financial mismanagement within the union. This does not give rise to a cause of action against the defendant.
       
    6. The proceedings were commenced because the defendant refused or failed to attend two meetings called by the Interim Committee. That does not give rise to a cause of action.
       

26. The formal orders of the Court are:-

1. The proceedings is struck out in its entirety.
   
2. Costs in favour of the defendant, to be taxed if not agreed.
   
27. It would be an exercise in futility to continue to deal with the other grounds in this application in the light of orders made above and I intend not to do so.
    

MADE at Port Vila, this 28^th day of May 2004.

H. BULU
Judge.