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Iauko v Natapei [2012] VUCA 18; Civil Appeal 22-12 (14 September 2012)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)
Civil Appeal Case No. 22 of 2012

BETWEEN:

HARRY IAUKO
Appellant

MANU IAIOFA and 27 Others
Second Appellants

AND:

NIPAKE EDWARD NATAPEI
First Respondent

NIPAKE EDWARD NATAPEI and 27 Others
Second Respondents

Coram: Justice Oliver Saksak
Justice Daniel Fatiaki
Justice Robert Spear
Justice Dudley Aru

Counsel: Silas Hakwa for the Appellants
Edward Nalyal for the Respondents

Date of Hearing: 11th September 2012
Date of Decision: 14th September 2012

JUDGMENT OF THE COURT

1. This appeal relates to the internal division that has arisen within the Vanuaaku Pati (VP). That division relates particularly to an assertion by the appellants that they are the duly elected members of the Executive Council of the VP. The claim brought in the Supreme Court by the respondents sought declarations that the appellants were not validly elected to positions within the Executive council and for orders restraining the appellants from asserting that they were.
   
2. This division has been the subject of previous court proceedings and some brief mention of those cases will be made by us in due course. Suffice it to say (for the purposes of this appeal) that, in the course of the Chief Justice's management of this case through a series of conferences leading up to 10 May 2012, a preliminary issue was identified and considered to be critical to the final determination of the substantive proceeding. That preliminary issue and the Chief Justice's initial observations on it are taken from his Lordship's decision of 6 July 2012:-
   

"PRELIMINARY ISSUE

If the term of the executive council hereinafter referred to as "EC" expires, does the EC continue to have a mandate?
It is noted that this issue was raised by Mr Hakwa on behalf of his clients (First and Second Appellants) in previous court proceedings involving the same parties or some of them in Civil Case No. 11 of 2010 and Civil Case No. 42 of 2010. It is important from the outset that an answer be given to it as it is an important question within the VP Constitution and its members. It is also important because the resolution of this preliminary question may substantively advance the resolution of this proceeding case or resolve it albeit one or two factual issues to the proceedings."

3. The Chief Justice determined the preliminary issue:-
   

"The members of the Executive Council elected at Ifira Congress on 30 August 2007 continued to perform their duties and functions until the Congress elects new members of the Executive Council".

4. This appeal is brought against that determination.
   
5. This appeal can only be in respect of that decision of the Chief Justice on that preliminary issue. It is, indeed, a decision that must be treated as one of an interlocutory nature and, as such, leave to appeal is required. While the question of leave has not been specifically addressed by counsel, it is clear that the Chief Justice and the members of this Court have proceeded on the basis that the issues raised by the appeal need to be finalised without delay. Accordingly, leave is so granted.
   
6. Notwithstanding, however, that the appeal can only relate to the ruling of the Chief Justice on that narrow preliminary issue, Mr Hakwa (for the appellants) has endeavoured to widen the scope of the appeal far beyond what is required for its determination.
   
7. There is often a risk involved with a primary judge attempting to resolve a substantive proceeding by addressing a preliminary issue in this way. If such an approach is to be taken, it is important first for the basis of the determination to be clearly understood either by the identification and assessment of the evidence or by a statement of agreed facts between the parties. Furthermore, that preferably there is agreement reached with the parties as to how the substantive issues will be approached in the light of the determination of the preliminary issue. That is, if the preliminary issue is resolved in a certain way, does that resolve the substantive claim either for the claimant or the defendant or does that enable the substantive claim to be confined say to the question of liability only or what relief might be required. If such an approach is not taken then the risk is that the determination of the preliminary issue simply prolongs the final determination of the proceeding.
   
8. In this case, as we will explain, we consider the issue identified as the preliminary issue in fact is really a secondary issue in relation to the substantive issues before the parties. The issue of prime importance is whether the assertions by the appellants that they have been validly elected as members of the Executive Council of VP have any legitimacy.
   
9. Mr Hakwa's amended notice of appeal dated 6 November 2012 is an extensive document that attacked a number of the conclusions reached by the Chief Justice in the decision under appeal. In paragraphs 1-14 of that amended notice of appeal, counsel has referred to various conclusions reached by the Chief Justice each under the reference, "Held". Paragraphs 19-39 in essence then address the evidence on the events as relied on by the appellants. At the hearing, we emphasised to counsel that this was not a desirable approach to the drafting of a notice of appeal. We noted further that there appeared to be only three points of appeal identified in the notice; as found in paragraphs 34, 35 and 39:
   

"34 The Court misdirected itself in holding that the provisions of Article 3 D (iv) of the Constitution apply in the case of those persons who were elected as member of the Council by the 36th Congress on 30th August 2007.

35 The Court erred in law in not giving proper meaning and/or effect to the provisions of Article 3D (iv) of the Constitution in so far as those members of the Council who were elected by the 36th Congress are concerned.

39 The Court erred in law in holding that those members of the Council who were elected by the 36th Congress on 30th August 2007 can lawfuly continue to perform the duries and function of a member fo the Council beyond 31 December 2009 and until new election of members are made by the congress"

10. Notwithstanding the containment of the notice of appeal to the above 3 points, Mr Hakwa raised 4 more points in the course of his additional submissions. They were:-
    

"1 The members of the Executive Council elected at Ifira are estopped from claiming or holding themselves out as members of the EC beyond 31 December 2009.

2 The interpretation of the VP Constitution was not based on the principle of necessity but on the provisions of Article 9 of the Constitution.

3 The provisions of Article 3D (iv) only applies to a lawfully constituted Executive Council; that is, one consisting of members who are lawfully elected and whose terms of office are still valid in all respects.

4 Those members of the Executive Council whose terms have expired cannot benefit from their wrongful and/ or unconstitutional acts of omissions."

11. Regrettably, the presentation of this appeal in this way has attempted to move it away from the preliminary issue addressed by the Chief Justice. That simply involved the interpretation of the VP Constitution. It is not appropriate that this Court be taken to deal with all the matters raised by Mr Hakwa as they are well outside the scope of the issue under appeal. That notwithstanding, there does appear to be one further matter that we can address and to which we will return in due course.
    
12. It is helpful to have some brief regard to the history to this matter. It was referred to as "agreed facts" by the Chief Justice in his decision. Mr Hakwa took issue with that on the basis that no facts had been agreed in that way. Without wishing to enter into any debate on that point, it was conceded that they could conveniently be considered as background facts not in contention.
    
13. VP, the Vanuaaku Pati, is a political party in Vanuatu of very long standing indeed having regard to the relatively short history of the Republic of Vanuatu. It is one of the major political parties of this country and it has been so for many years.
    
14. All the parties in this case are members of Vanuaaku Pati.
    
15. At the 36th Congress of VP held on Ifira in August 2007, Nipake Edward Natapei was elected President, Sam Dan Avock as Vice President, Joe Natuman as Second Vice President and other second respondents as members of the Executive Council.
    
16. The Constitution of VP required that the National Congress of VP meet at least once a year.
    
17. One of the functions of Congress is to elect persons to fill any vacancies on the Executive Council recognising that those members of the Executive Council are elected for a term of 2 years. Article 3D(iv) of the VP Constitution provides:-
    

(iv) Members of the Executive Council shall be elected by the Congress for a term of two years and in the event that a member's term of office expires before the convening of the next Congress to elect new members, that member shall continue to perform the duties and functions of a member, until new election of members are made by the Congress. Officers of the party are elected for a term of 2 years by the congress. When the terms of the officers expire the officers hold office until incoming officers are elected."

18. The 2007 Ifira congress resolved that the venue of the next Congress in 2008 would be held on Tongoa and that the Executive Council would decide the date and time of the congress.
    
19. There was no congress organised by the Executive Council in 2008 and 2009.
    
20. Certain members of the party commenced proceedings in this Court to require the Executive Council to convene congress. On 5 February 2010, the following orders were mad[1]e:-
    
    1. That the (Executive Council) forthwith call and/or convene a meeting of the congress of (VP) which shall be at Lumbukuti Village on Tongoa beginning on 7 February 2010.
    2. That the (Executive Council) forthwith take all such steps as are necessary and in accordance with the Constitution so as to ensure that the conference is lawfully convened at Lumbukuti Village on Tongoa beginning on 7 February 2010.
21. As it happened, the Congress did not take place until 1 April 2010. It was opened by the Nipake Edward Natapei, acting as the President. The venue was Lumbukuti on Tongoa.
    
22. Difficulties arose almost immediately after the Tongoa congress was opened resulting in Nipake Edward Natapei and others (particularly the Respondents) leaving Lumbukuti and purporting to continue the session of Congress at the village of Panita; also on Tongoa. That group can conveniently be described as the Natapei faction.
    
23. Those remaining at Lumbukuti can conveniently be described as the Iauko faction.
    
24. The Iauko faction purported to continue with the session of Congress at Lumbukuti. Elections were held which resulted in Harry Iauko being "elected" as President of VP and a number of the second appellants being "elected" to positions within the Executive Council.
    
25. These events are not disputed and define the real issues between the parties.
    
26. Returning to the preliminary issue posed by the Chief Justice, that is simply and completely a question of interpretation of the VP Constitution. Such construction is governed primarily by Article 9 (a) of the Constitution:-
    

"9(a) the Constitution shall read according to the ordinary meaning of the words used. When the meaning of words or the intention of the constitution is not clear a sensible interpretation should be given in the spirit of the party's aims and work and not according to the technical meaning of words."

27. With respect to Mr Hakwa's attempt to broaden the scope of this appeal, it must be confined to a consideration of the preliminary issue and that in turn requires focus to be brought on Article 3D(iv)[2]. To broaden the scope of the appeal beyond that, as Mr Hakwa has attempted to do, requires an evaluation of the evidence beyond that contemplated or attempted by the Chief Justice in the Supreme Court when addressing the preliminary issue and it is beyond the scope of this appeal. We note that Article 3D(iv) is effectively replicated by Article 5 (c ) and (d) which deal generally with the term of office of the various officers of the party.
    
28. The Chief Justice had no difficulty with the clear and unambiguous interpretation of Article 3D(iv):
    

"The words used in Article 3 D (iv) are simple and clear. They mean this: "if the office term of 2 years of the members of (the Executive Council) expires, they continue to perform their duties and functions until the Congress elects new members of the Council."

29. That is the effective ruling given by the Chief Justice on the stated preliminary issue. It required a focus just on the VP Constitution and what was provided by the clear terms of the Constitution. It is unnecessary to expand such a consideration into matters relating to the history between the parties when answering a straight forward question of this nature.
    
30. We remain somewhat uncertain of the position adopted by Mr Hakwa in respect of this preliminary issue. At times, we understood him to say that he did not dispute that the Chief Justice's ruling was correct. However, at other times, he appeared to argue that a member of the Executive Council was appointed only for 2 years and, at the conclusion of the 2 year period, that person ceased to hold office with the result that the position became vacant. Whichever argument Mr Hakwa relies on, we consider that the Chief Justice, with respect, was absolutely correct in his treatment of Article 3D(iv) and accordingly what is provided by the Constitution. There can be no doubt that this is the plain and ordinary meaning of the words employed by Article 3D(iv) as well as Article 5 (c) & (d).
    
31. Once a person is appointed to office within the party, and that includes membership of the Executive Council, that person holds that position for a term of 2 years. That means that he or she does not come up for re-election if a congress is held the following year. However, if an election for that position by Congress is not lawfully undertaken by the time that the 2 year term expires, that person continues in that office until an election is held by Congress pursuant to the Constitution.
    
32. It accordingly follows that those appointed to positions on the Executive Council at the 2007 Ifira Congress held their positions until at least April 2010 when Congress was opened on Tongoa; and it is possible that they still hold those positions.
    
33. The remedy for those disaffected by the failure of an Executive Council to convene a national congress and to bring on elections for the Executive Council is to obtain directions from this Court. That is what occurred in 2010 with the decision of the Chief Justice of 5 February 2010[3].
    
34. The real issue between the parties is whether those elected to the Executive Counsel at the 2007 Ifira Congress have been legitimately replaced following subsequent elections held on Tongoa in April 2010 or whether they still hold office. This is not an issue that can be resolved on the material before us and it is unlikely to have been capable of resolution in the Supreme Court without a full hearing of the substantive case.
    
35. We note, however, that it is contended by the appellants that Congress continued at Lumbukuti in 2010 after the Natapei faction removed themselves to Panita village and that various appellants were then voted into office as members of the Executive Council. We trust that it will be of some assistance to the parties if we simply observe that any elections held at Lumbukuti, after the Natapei faction removed itself, can have no validity at all. While the Constitution provides for the Congress to be opened by the President (which occurred), it also provides for Congress to be chaired by the Vice President. There appears to be no doubt that the Vice President, Joe Natuman left Lumbukuti for Panita with the Natapei faction. Whatever then happened at Lumbukuti was not an act of the VP Congress.
    
36. The Constitution also provides that a Congress is properly constituted when a quorum of its members is present at its opening. There is no evidence to suggest that a quorum was or was not present when the President opened the congress at Lumbukuti. Indeed, we understand that the departure of the Natapei faction occurred following disagreement during the registration of delegates.
    
37. Equally, however, there is no evidence that would support a conclusion that a properly constituted congress was conducted or continued at Panita.
    
38. Accordingly, any elections held by those remaining at Lumbukuti could not displace those elected at Ifira in 2007. We cannot be certain, however, whether any elections held at Panita could be valid. The uncontested evidence, on which we have based these observations, does not assist us in that particular respect. We had no such difficulty with our evaluation of the legitimacy of the Lumbukuti "elections".
    
39. We mention finally that it is incumbent on any member of the party to ensure that the VP Constitution is observed. In particular, those on the Executive Council are required to ensure that a Congress is held at least annually pursuant to the Constitution. If members of the Executive Council put individual members of the party to the expense of commencing legal proceedings to ensure that the Executive Council meets its constitutional responsibilities, that is now likely to sound significantly in an order for costs against the individual members of the Executive Council.
    

Conclusion

40. We confirm for these reasons that the ruling of the Chief Justice on the preliminary issue is one with which we are in total accord. The appeal is accordingly dismissed.
    
41. We wish to hear counsel on the issue of costs.
    

FOR THE COURT

______________________________
Hon. Justice O. SAKSAK

^[1] Iaiofa v Natapei [2010] VUSC 20; Civil Case 11 of 2010 (5 February 2010)

^[2] Para. 17
^[3] Iaiofa v Natapei fn. 1 ibid