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Port Vila Town Island Council of Chiefs v Tahi [2008] VUSC 21; Civil Case 160 of 2007 (28 May 2008)

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

Civil Case No. 160 of 2007

BETWEEN:

PORT VILA TOWN ISLAND COUNCIL OF CHIEFS
Claimant

AND:

CHIEF PAUL TAHI
Defendant

Coram: Justice C.N. Tuohy

Counsel: Mr. Laumae for Claimant
No appearance for Defendant

Date of Hearing: 28th May 2008
Date of Decision: 28th May 2008

ORAL JUDGMENT

1. This is an application for judicial review brought by the members of the former Port Vila Town Island Council of Chiefs against Chief Paul Tahi formerly president of Malvatumauri National Council of Chiefs. The application relates to a letter dated 25th May 2007 which Chief Paul Tahi wrote to the Chairman of the Port Vila Town Council of Chiefs. The letter was headed "Desolution blong Vila Town Council of Chiefs". It goes on to say "Letter ia hemi blong informem yu se long sitting blong Malvatumauri National Council of Chiefs long 16th and 19th to 23rd March 2007, Council ia hemi bin mekem wan decision blong dissolvem Vila Town Council of Chiefs".
   
2. The letter went on to say that the decision was based on two points.
   
   1. It was said that the Vila Town Council had difficulty in doing the work which the Malvatumauri Council mandated it to do.
      
   2. Vila Town Council did not properly represent the Island Communities of Port Vila.
      

The letter went on to say that after delivering the letter the use of the name Vila Town Council must cease and that representation at any meetings functions, etc, by the Vila Town Council must cease.

3. The application for judicial review seeks the following orders:
   

i) a declaration that Chief Paul had no power to dissolve the Port Vila Town Island Council of Chiefs

2. an order quashing the decision of Chief Paul dated 25th May 2007 purporting to dissolve the Port Vila Town Island Council of Chiefs
   
3. an order prohibiting Chief Paul from unlawfully dissolving the Port Vila Town Island Council of Chiefs and
   
4. the costs of the action.
   

4. The application for judicial review and the sworn statement in support was served on Chief Paul on 28th September 2007. Chief Paul has taken no steps whatever.
   
5. Initially the Court itself did not start to case manage the application because no proof of service was filed and no defence was filed. The first step that the Court took, after nothing had happened in the case after it was filed, was on 30th January 2008 to issue to the Claimants a notice to appear at the Court and show cause why the proceeding should not be struck out because no steps had been taken. That was set for 7th March.
   
6. At that stage Mr. Laumae appeared with some of the Claimants and advised that they very much wanted to continue with the proceeding. I then made orders that cause had been shown why the proceeding should not be struck out. I required the claimant to file a sworn statement of service which had not been done up till then and I also required that the claimant’s claim and sworn statement together with a copy of my orders be served on the Attorney General. The sworn statement of service of the claim has been filed. Mr. Laumae has informed me today and I accept that the Claimant’s claim and sworn statement in support were served on the Attorney General. They obviously have chosen not to become involved. I also fixed a trial date for today 28th May.
   
7. Neither the defendant nor the Attorney General has taken any steps so the matter has proceeded today on an undefended basis. Even though it is undefended it does not automatically follow that the Court will grant an application for judicial review. The Court still has to be satisfied that it is just to grant the remedies sought.
   
8. Mr. Laumae has argued that as a result of Section 19 (2) of the National Council of Chiefs Act No. 23 of 2006, there was no power for the National Council of Chiefs to dissolve an urban council or dismiss its members prior to 30th September 2007. Section 12 of that Act provided a process for re-creation of Urban Councils of Chiefs which up till then had no statutory basis. Under Section 12 the Minister is required to determine by order for an Urban Council of Chiefs the number of chiefs to be appointed by their respective Island Council of Chiefs to represent their Island. Section 12 provides that an Urban Council of Chiefs consists of the chiefs appointed by their respective Island Council of Chiefs to represent their Island Council of Chiefs in the urban area. Section 19 covers transitional arrangements. Section 19 (1) states "This section applies to a custom chief who is a member of an Urban Council of Chiefs" and subsection 2 goes on to say "On and after the commencement of this Act (which was on the 11th September 2006) a custom chief who is a member of an Urban Council of Chiefs continues to be a member of the relevant Urban Council of Chiefs until the 30th September 2007".
   
9. Mr. Laumae argued that that means that there is no power to dismiss a custom chief who is a member of an Urban Council of Chiefs on the 11th September 2006 until sometime after the 30th September 2007.
   
10. However, I think that there is more a fundamental issue than that. The fundamental issue is whether the National Council of Chiefs has the power to dissolve an Urban Council of Chiefs at all. The functions and powers of the National Council of Chiefs are set out in Section 3 of the Act. The only possibly relevant functions are those set out in Section 3 subsection 2 (d) and (e), that is, "(d) to facilitate the functioning of an Urban Council of Chiefs, (e) to ensure that an Urban Council of Chief performs their functions under this Act or any other Act". And Section 4 is also relevant. That says that the National Council has power to do all things that are necessary or convenient to be done for or in connection with the performance of its functions.
    
11. In my view the function of facilitating the functioning of an Urban Council of Chiefs or ensuring the Urban Council of Chiefs performs their function is not broad enough to justify the complete dissolution of an Urban Council of Chiefs whether it is one which existed up until 30th September 2007 by reason of Section 19 or whether it is one appointed under Section 12. It has to be remembered that it is not the National Council of Chiefs which appoints the Urban Council of Chiefs, it is Island Councils now. Before that Mr. Laumae informed me that it was Island communities living in Port Vila which appointed their representative to the Port Vila Town Island Council.
    
12. A power to dissolve a body which is appointed by someone else should not be lightly implied into the Act. A power to dissolve a Council is a strong power. If Parliament intended to give that strong power to the National Council of Chiefs then Parliament needs to have said so clearly. There is no such clear function or power set out in the Act. Therefore I have come to the conclusion that there was not a power for Chief Paul or his National Council to dissolve the Urban Council regardless of Section 19 (2).
    
13. However, if I am wrong in that conclusion I also agree with Mr. Laumae’s more limited submission that Section 19 (2) effectively means that the members shall continue until 30th September 2007. It must be remembered that the members of the informal Port Vila Town Island Council which existed prior to the passing of the Act were not appointed by the National Council of Chiefs. So there is very good reason to read Section 19 (2) literally to mean what it says, namely, that the members of an Urban Council shall continue in their position until 30th September 2007 at least.
    
14. So I am satisfied that the Claimants have made out their case. That is not the end of the matter. The Court does not grant declarations or make orders if they are just academic. In this case 30th September 2007 has come and gone and I am told that a new Urban Council has been appointed under the provisions of Section 12 of the Act. I therefore questioned Mr. Laumae as to whether there would be any practical purpose in me exercising the discretion of the Court to make the declarations or orders sought.
    
15. He informs me that there are two main reasons why the claimant wants declarations. The first relates to actions they might take against the reasons given for the dissolution. I am not sure that a declaration of the type that I would make will make much difference to that because the Court is not being asked in this case to declare whether or not the reasons given in Chief Paul’s letter were correct or not. The Court is simply being asked to decide whether or not the Chiefs or the Council had the power that they purported to exercise.
    
16. However, there is some practical purpose in the second matter which Mr. Laumae advised me of. He tells me that as a result of the purported dissolution of the Port Vila Town Island Council the claimants have not received certain monies that they may otherwise have been entitled to. If that is the case then obviously there is some practical purpose in me making the declarations sought.
    
17. I will therefore exercise my discretion to make those declarations. I grant the following remedies:
    
    1. a declaration that neither the president of the Malvatumauri Council of Chiefs nor the Council itself had the power to dissolve the Port Vila Town Island Council of Chiefs in March 2007;
       
    2. an order quashing the decision of the Malvatumauri National Council of Chiefs communicated by Chief Paul Tahi in a letter dated 25th May 2007 purporting to dissolve the Port Vila Town Island Council of Chiefs.
       

I do not propose to make Order 3. That is a prospective order that is no longer relevant. In particular Chief Paul Tahi is no longer the president of the National Council apart from anything else.

18. As to costs I do not see any reason to grant costs on an indemnity basis. There is nothing out of the ordinary in this case. The claimants however have been successful and they are entitled to costs on the normal basis to be agreed or fixed by the Court on application made within 14 days.

Dated at Port Vila, this 28th day of May, 2008

BY THE COURT

C.N. TUOHY
Judge