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Cullwick v Lini [2005] VUCA 9; Civil Appeal Case 02 of 2005 (3 May 2005)

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

CIVIL APPEAL CASE No. 02 of 2005

BETWEEN:

LEIASMANU CULLWICK
Appellant

AND:

Mrs. MARY LINI
First Respondent

AND:

JENNY LIGO
Second Respondent

AND:

ANNET MIAL, MARYANNE BANI, ROSALYN GARAE, NAOMI MALAU, ELIZABETH HOSEA, SUPIE FRANK, LILLY AMOS, YELO RUTH, MORRIS, KALORAN
Third Respondents

Coram: Chief Justice Vincent Lunabek
Justice Bruce Robertson
Justice John von Doussa
Justice Oliver Saksak

Mrs Cullwick in person assisted by Mrs Temakon as Mackenzie friend
Mrs Ligo one of the Respondents in person

Date of Hearing: 25th April 2005
Date of Judgment: 3rd May 2005

JUDGMENT

The Vanuatu National Council of Women [VNCW] is a Non-Governmental and non profit organization established in 1980. For more than 3 years there has been litigation about who should be in control of it. Every Judge who has been involved has made reference to the fact that all this seems to be contrary to the very reasons why the organization exists and what it should be doing to serve the women of the Republic.

In October 2002, the present Claimant was elected President for a term of two years. On 14 March 2003, ⅔ (two third) of the Board Members passed a motion to remove her and the treasurer from the Board.

Court proceedings were commenced. There were problems about the conduct of that initial case but eventually on 25 June 2003, Justice Coventry answered a series of questions which were intended to assist the parties to reach some resolution.

There were further problems about participation in a hearing because of unpaid fees. But in a judgment of 21 October 2003, Justice Coventry concluded that the resolution of the Board in removing Mrs Cullwick and the treasurer from office was unconstitutional. He directed a course of action to be adopted with regard to the future conduct of matters to allow people to go forward.

A Conference of VNCW was held on 16 to 18 December 2003 in Port-Vila. The Claimant was again elected President.

On 26 April 2004, the Board of the VNCW again terminated Mrs Cullwick’s position as President. Further proceedings were initiated seeking interim restraining Orders:-

• preventing a Conference being held in November 2004;
• maintaining Mrs Cullwick as President until further Order of the Court;
• ordering that the Claimant be responsible for the running of the VNCW until further Order of the Court; and
• restraining the Defendants from disturbing Mrs Cullwick in her position as President.
  

The proposed November Conference was postponed until the 9 and 10 of December 2004. The court proceedings came on for hearing before Justice Treston on 23 November 2004. In a reserved judgment on 26 November, the Judge concluded that in the term of Article 5.2(3) of the Constitution of the VNCW Mrs Cullwick was prevented from being a member of the Board from 2002 onwards and therefore could not be elected as President.

The Judge refused relief on that ground. He also discussed a number of other matters which had been raised and found against Mrs Cullwick on those as well.

An appeal was filed against that decision which was expressed as seeking:-

1. An Order to say that the election processes which resulted in the election of the Appellant to the position of VNCW President on the 18^th of December, 2003 was valid therefore validating the Appellant’s position to the National President.
   
2. An Order to state that the Appellant has the right under the National Constitution to take any matter to Court if she believes that her rights have been infringed.
   
3. An Order that the VNCW National Conference is the highest decision making body and it is for the Board to carry out resolutions passed during the national Conference.
   
4. An Order that the mediation process stated out in Article 8.3(4) was not followed by the first, second and third Defendants.
   
5. An Order that the voting by telephone is not valid to remove the Appellant from the position of the VNCW President.
   
6. An order invalidating the VNCW Conference and decisions taken on the 9^th and 10^th December 2004.
   
7. An Order to remove the CEO Jenny Ligo from the VNCW office immediately.
   
8. An Order to remove the first, second and third Defendants from the VNCW Board and for the Appellant to hold fresh Conferences and to elect new Presidents for the Provinces and municipalities.
   
9. An Order to reinstate the Appellant to the position of the VNCW President until fresh elections are held.
   

It is to be noted that a number of these proposed Orders relate to matters which had never been before the Supreme Court. In respect of Order 6 it sought relief in respect of something which had occurred after the Supreme Court Judgment. On the most basic principles it included issues which an appellate court could not consider or entertain in any way.

Particularly when parties are unrepresented by legal counsel (as has been the case throughout this unfortunate litigation), Judges will do all they can to facilitate those access to justice, but there are fundamental norms which must be observed. The role of an appellate court is to assess what occurred in the first hearing and determine whether an error is demonstrated in what happened.

We made clear at the commencement of the appeal hearing that the starting point for any reconsideration of the decision of Justice Treston was the core issue of the interpretation of the VNCW Constitution which was adopted on the October 29, 2002.

The thrust of Mrs Cullwick’s argument was that the National Conference was supreme and that the Board was not in a position to alter its decisions. That submission is not correct. The fundamental controlling factor is the Constitution. It may be amended by a ⅔ majority of all eligible voting members of the National Conference when proper notice has been given. But subject to that right, the Conference, the Board, the President and every member of the VNCW is bound by the terms of the Constitution.

Part 5 of the Constitution deals with the Board of Directors of VNCW. It is to be elected at the annual meeting under 5.1(1).

It consists of 12 persons identified in 5.1(2). Once those 12 persons have been determined the Conference elects from those Board members (excluding the ex-officio members) a President and then a Vice-President.

In determining the case before us, the critical issue is the proper interpretation of 5.2 which provides:-

“5.2 Term of office

(1) Each of the two Port-Vila members who are presidents hold office for two years from the date at which she is elected until the National Conference in two years’ time.

(2) These two Board members above are eligible for re-election.

(3) A member of the Board cannot serve for longer than two consecutive terms.”

5.2(3) is clear and unequivocal. A Board member cannot serve for more than two consecutive terms. There is no question that Mrs Cullwick became a member of the Board in 1998. She was there again in 2000. She was not eligible to be a member of the Board from 2002 onwards.

We have considered whether 5.2(3) could apply only to the two persons elected by the Conference (other than the six Provincial Council of Women Presidents and the two Municipal Council of Women Presidents). That interpretation is not available on the basis of 5.2(3) which is clear that it applies to the entire Board whereas 5.2(1) and 5.2(2) apply to those two extra members elected by the Conference.

If that is not what the VNCW want then they will need to amend the Constitution in 5.2(3) to provide that it is only these two Board members who cannot serve longer than two consecutive terms.

So long as the words of the Constitution are in their present form then the various Provincial and Municipal councils by electing people as their President who are ineligible to be Board members cannot subvert the Constitution.

The conclusion reached by Justice Treston was the correct position in law. His refusal to make the restraining Orders and to place Mrs Cullwick in the position as President was the right outcome. The relief was not available because Mrs Cullwick was not even eligible to be a member of the Board let alone to be elected as President.

For completeness we have referred to the 2000 form of the Constitution of the VNCW which in as far as it is relevant provided:

“5.8 Term of office

(1) A member of the Board holds office from the date of the National Conference at which she is elected until the next Annual General Meeting of the National Conference.

(2) A Board member is eligible for re-election.

(3) A member of the Board cannot hold the same office for longer than 2 consecutive years.

(4) A person cannot be a member of the Board for longer than 4 consecutive years, but is eligible to stand for election again 2 years after having previously been a member of the Board.

(5) If a vacancy occurs on the Board, the Board may appoint a full member of VNCW to fill the vacancy. The appointed member holds office until the next Annual General Meeting of the National Conference.”

If this Constitution had applied at the time of Mrs Cullwick’s election in 2002 she would have faced a similar problem. At that stage she had been a member of the Board for 4 consecutive years so was not eligible to stand.

It is unnecessary and unhelpful for us to go further and consider the other subsidiary issues. Everybody in this case must act with a degree of common sense and reality. VNCW now has elected a new President. Mrs Cullwick in her oral submissions and in her recent material made a number of assertions and allegations about a variety of issues. None of these are matters that can be considered by the Appeal Court and are not relevant to the determination which we have had to make.

The appeal is dismissed.

Dated at Port-Vila this 3^rd day of May 2005

BY THE COURT

VINCENT LUNABEK CJ
J BRUCE ROBERTSON J
JOHN von DOUSSA J
OLIVER A. SAKSAK J