IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

SAMOA RED CROSS SOCIETY INCORPORATED a duly incorporated society under the Incorporated Societies Ordinance 1952 having its registered office at Motootua.
Plaintiff / Applicants

AND:

MAKA SAPOLU of Vaivase, Retired, VAASILIFITI MOELAGI JACKSON of Safua, Savaii, Businesswoman, JERRY BRUNT of Tanumapua, Solicitor and NAMULAUULU TAUTALA MAUALA of Nofoalii, General Secretary and MAILO SIO of Vaiusu, Self-Employed.
Defendants / Respondents

Counsel: P Meredith and S Wulf for the plaintiff
J Brunt and M Tuatagaloa for the defendants

Hearing: 13-15 December 2010

Judgment: 18 January 2011

JUDGMENT OF SLICER J

1.	The Red Cross Society ("The Society") has operated in Samoa for over fifty years. During that period it has been structured and governed in a number of different forms. In November 1982, it adopted and registered a Constitution ("The Former Constitution") by which it became an incorporated society in accordance with the Incorporated Societies Ordinance 1952 ("The Ordinance"). That Constitution remains registered with the Registrar of Incorporated Societies. In order to become affiliated with the International Red Cross, National Societies and International Organisations of the Red Cross it was required to adopt a constitution based on a central model, subject to necessary local adaptions, approved by the League Constitution in accordance with resolutions adopted by the International Conferences of the Red Cross at Teheran and Manila in 1973 and 1981 respectively. A constitution ("The Constitution") in that form was adopted by a meeting of nineteen members in 1983. That Constitution was neither lodged nor registered with the Registrar. On 19 July 1983 a special meeting accepted amendments suggested by the Secretary General of the International League of the Red Cross ("ICRC"). The Society and its Constitution were recognised by the ICRC on 30 August 1984.

2.	One of the persons involved in the 1983-84 processes and reconstitution of the Society, Maka Sapolu is a defendant to these proceedings. The present Secretary General of the Samoan Society, Vaasilifiti Moelagi Jackson ("Vaasilifiti"), is also a defendant to these proceedings.

3.	On 3 November 1983, the Society signed a Memorandum of Understanding with the Government of Western Samoa. That memorandum provided for undertakings which included:

-	adherence to the statutes of the Red Cross; and
-	honouring 'the fundamental principles of…humanity, impartiality, neutrality, independence, volunteer service, unity and universality'. 

4.	It is the intersection of these differing Constitutions which has led to these sorry and avoidable proceedings and their consequences. Hubris overcame reason, and passion defeated deliberation.

5.	At the commencement of these two hearings, Counsel for the Society indicated that it was prepared to withdraw its contempt proceedings and its application in a 'spirit of goodwill and reconciliation'. The Defendants had defended the Statement of Claim and lodged a Counterclaim filed and served on the Plaintiff on 25 October 2010. Counsel ought to have been aware of the Counterclaim.

6.	When Counsel became aware of the existence of that claim the Society, to the detriment of itself, office bearers and members decided to pursue its contempt and punishment proceedings against the named Defendants and Respondents. Two hearings were conducted sequentially by the Court with the evidence of the first (contempt application) being admitted, with other evidence, on the second and substantive actions or applications.

History of Proceedings

7.	Following ratification the Society continued its operations in Samoa. The Court was told that in most years an annual meeting of members was conducted but, as not uncommon, inertia or lack of volunteers, led to lapses for periods of time. Although a club or incorporated association has not been active for a number of years, it does not cease to exist and if some members remain, those members can make arrangements for rejuvenation, continuance or winding up (Halsbury's Laws of England 4th Ed. Vol. 6, paragraph 267).

8.	On 27 March 2009 the Society conducted an 'Annual General Meeting, well attended by 70 members'. The members were welcomed by the Secretary General, the second named defendant. The meeting dealt with, among other businesses, the election of the officers of the Society. The meeting returned the following persons to their respective positions:

President:

Muagututagata Pita Ah Him

Vice President and Treasurer:

Matataualiitia Afa Lesa

Executives:

Fuimaono Taala Malcolm Johnston, Apineru Peniamina Wright, Lealiifano Topu Tanielu, Fuimaono Poloma Eteuati, Falefata Tuaniu Petaia, Suela Jewell Cook and Miriama Fiu Alenepi.

9.	There was no appointment of the Secretary General by the assembled members.

10.	The status of the persons elected is disputed by the parties. The President contends that the members had elected a Central Committee which the Constitution provides for a three year term of office subject to rotation. The Defendants contend that the members had elected a Managing Committee in accordance with the Constitution, Article 19 which provides for a twelve month term of office.

11.	In September 2009 Samoa suffered the disaster of a tsunami, which engaged the Society in an intense effort, human and resource, to aid the victims in both immediate and long term processes.
12.	In 2010, some members believed that there was a need to review the response of the Society and to consider and enhance its methods of allocation of resources. They considered that resources could have been more effectively allocated and the response system or protocols improved. They anticipated the holding of an annual meeting to be held in or about March 2010.

13.	There was a further date which guided their subsequent actions. The Society was required to submit budget proposals for international funding from the ICRC on or before 31 August 2010.

14.	A group who had shared the above and other concerns sought to raise matters of grievance and reform with the Committee. They had met in early August as an informal committee. On Thursday 5 August they met and composed a letter addressed to:

"Hon. Muagututagata Pita Ah Him,
Sui Auai o e sa i le Komiti Tutonu 2009-2010,
Kolose Mumu a Samoa."

15.	The letter, copies of which were forwarded to the Prime Minister and the General Secretary of the ICRC, was in polite and respectful terms. But it concluded with the words in English:

"Above is a Letter from some of the founding Members and Registered (sic) Members of the Samoa Red Cross Assembly requesting a Special Meeting with the Ex President and Members of the previous Executive Committee."

16.	The use of the words '2009-2010' and 'Ex President and Members of the previous Executive Committee' was unnecessary and the President took offence at their inclusion. His subsequent conduct reflected hubris rather than reason.

17.	The letter was delivered on the following day, 6 August. The letter referred to a proposed meeting on the following day which I interpret to mean the day following receipt of the letter, namely Saturday 7 August. On that day the informal committee, including the Secretary General assembled at the Society's office at approximately 8 a.m. The President and his Committee did not attend. In his evidence at trial the President claimed lack of notice and opportunity, a claim weakened by the rapidity of his calling the Committee to meet during the following week. An entry in the Minutes kept of the 7 August meeting record that at about 1:30 p.m.

"…a call was made to Muagututagata for his response by which were following were his exact words: In English 'I am not putting much value upon the letter as Vaasili has not right to just descend upon us and try to direct us. They should have seeked (sic) your assistance of in arranging for a meeting with me before I call a Board Meeting with them. Therefore I am not coming." 

18.	The President did not attend. The group discussed general, but genuine, matters concerning the Society's operations while waiting for confirmation of attendance or non attendance. After 1:30 p.m. they decided to call for a meeting of the General Assembly. They decided that the meeting be held at 4 p.m. on 13 August at the Nurses' Hall, Moto'otua and arranged for a public notice to be published in the Sunday Observer on 8 August. Monday was a public holiday.

19.	The President convened a meeting of the Committee on Tuesday 10 August. The Minutes of that meeting recorded that:

"The letter appeared unprofessional, illegal and disrespectful in that the elected President and members have been prematuredly (sic) "sacked, disregarded, discredited and deregistered both in the eyes of the National Red Cross and also overseas' Federation, (illegally proven)."

20.	The meeting resolved to contact the Secretary General and the Minutes state 'that we need to meet on the following day, Wednesday 10th 8/2010 at 8.00 a.m., Red Cross Centre, meeting room.' Vaasilifiti was on Savaii and could not meet at the suggested time so the venue was changed to the Treasurer's Room at the National Bank and the time to 10 a.m. At that meeting the Committee resolved that the:

"…meeting is illegal, unconstitutional, unfounded and personal"

and to:

"contact a lawyer for a legal opinion and seek legitimate and appropriate avenues to stopping this meeting."

21.	On 12 August, the Committee resolved that:

•	"Interim Injunction be prepared
•	Law firm of Meredith represent the above Party Members
•	Interim Injunction be effective before the 13th February at 5pm to legally prevent and disfunction this extraordinary meeting from happening." 

22.	Proceedings were commenced by Statement of Claim dated 12 August, accompanied by an ex-parte application for an injunction. No attempt was made to serve the application.

23.	The application came before a judge of this Court late in the afternoon of 13 August. The Judge required an amendment to the orders sought. The notes of the learned Judge state:

"1.	Until further order of the Court, an interim injunction is to be issued forthwith against the Defendants their agents, supporters or any other officers of the Samoa Red Cross from conducting and holding an extraordinary session of the General Assembly or Central Committee of the Samoa Red Cross;

2.	This order together with the Ex-parte Motion and Affidavit in support and Statement of Claim are to be served on the Defendants;

3.	Motion and Statement of Claim to be listed for mention on the 30th August 2010."

24.	The terms of the formal order issued shortly before 4 p.m. 13 August state:

"1.	Calling and holding an extraordinary session or meeting of the General Assembly of the Samoa Red Cross Society Incorporated on Friday 13th of August 2010.

2.	And for such further or other order as in the circumstances may appear just;

3.	The costs of this Motion be reserved."

25.	The order was signed by a Deputy Registrar of this Court. There were in fact two orders differently worded. The order actually served did not reflect the amendments made by the Judge. Nor was an attempt made to serve the ex-parte motion or Statement of Claim as directed by the Judge.

26.	The order sought, referred to in paragraph 24, was delivered to the meeting between 4:05 p.m. and 4:07 p.m. on 13 August. The questions of whether the meeting had already commenced and the order properly served on Vaasilifiti are in issue.

27.	The meeting concluded at approximately 5:30 p.m. 

28.	The Plaintiff commenced contempt proceedings on 4 October 2010. On 26 October the Court set aside the interim injunction and the matter proceeded to trial.

The Meeting

29.	The meeting was attended by between 150-200 members of the Society. Vaasilifiti welcomed the attendees, and the meeting commenced. The meeting was chaired by a person elected by the members attending. The meeting passed resolutions including ones which expressed no confidence in the President and Management Committee. The meeting purported to remove them from office and appoint eight interim office bearers.

30.	The Court is satisfied that it had been called following the petition of at least one-fifth of the members of the General Assembly and attended by at least one-third of the membership. The Court is satisfied that the decisions taken were 'by a majority of those present and voting.'

Contempt Proceedings

31.	The application dated 4 October 2010 sought the imprisonment of Vaasilifiti and Maka Sapolu. The Plaintiff commenced contempt proceedings against five persons who had been involved in the calling and conduct of the meeting. On the return date of the Motion to Set Aside the Interim Injunction, the Plaintiff's counsel withdrew from the continuation of the proceedings on instructions from the Plaintiff. There was no evidence whether the instructions came personally from the President or by the Society through its Committee. The same Counsel reappeared at the hearing.

32.	The Plaintiff called additional evidence in support of its contempt application. The Court dismissed the application on 14 December, giving ex-tempore reasons and indicating that it would later publish its reasons for dismissal. These are those reasons.

33.	Contempt of Court is a serious matter. Here the Plaintiff had made inquiry of the Ministry of Justice on 18 September whether it would initiate criminal proceedings. That inquiry shows the intensity of the feelings of the President and his Committee. The Society commenced proceedings against five persons, two of whom had not been named in the original Statement of Claim. Four of the Defendants were unaware of the court order until after the meeting. There was no basis on which the Court could find knowledge or wilful disobedience of a court order on their part.

34.	The Plaintiff employed the use of a process server, Luatua Faafetai Vaeau ("Luatua") who claimed to have served the order on Vaasilifiti. Vaasilifiti agrees that she was approached by Luatua and told of the nature of service. She said that she refused to accept the service of the order which she later found left on the table used by the organising group. The Plaintiff has not proved, to the requisite degree, that there had been personal service on the Secretary General. It was for the Plaintiff's officers or legal representatives, one of whom was present outside, to inform the meeting of some 150 persons that the continuance of the meeting was prohibited by a justice of this Court.

35.	Vaasilifiti also stated in evidence that the attempted service had taken place after she had welcomed the attending members and opened the meeting. The Court accepts her version of events. It accepts that there was confusion caused by a large group of people still queuing to sign the attendance register. That confusion may have led Luatua to believe that the meeting had not commenced. Witnesses for the Plaintiff, including its legal representative concede that the attempted service was not effected until at least 4:05 p.m. The meeting had been advertised as commencing at 4 p.m. The Court accepts that the meeting had commenced by the welcome statement of the Secretary General who had then moved to a different area to personally greet waiting attendees or at least that the Plaintiff has not proved the contrary. Continuation of the meeting remained the province of the chairperson of the meeting elected by the meeting. No attempt was made by the Plaintiff's representative to advise the chairperson of the injunction.

36.	The order sought was the restraint of the Defendants 'together with their agents, servants, workmen and any other person acting under or by their authority' which was amended by this Court to read:

"To restrain the Defendants together with their agents, servants, workmen and any other persons."

acting under or by their authority from:

"against 'their agents, supporters or any other officers of the Samoa Red Cross from conducting and holding an extraordinary meeting…"

37.	The order of the primary Judge included the condition that:

"this order together with the Ex-parte Motion and Affidavit in support and Statement of Claim are to be served on the defendants."

38.	The order actually served reads:

"BEFORE AN HONOURABLE JUSTICE OF THE SUPREME COURT OF SAMOA – FRIDAY THE 13TH DAY OF AUGUST 2010

UPON READING the Ex-Parte Motion and Affidavit in Support of MUAGUTUTAGATA PETER AH HIM dated the 12th day of August 2010 filed therein this Court being satisfied that the case of the Plaintiff has been made out HEREBY ORDERS that until further Order of this Honourable Court an interim injunction is hereby issued to restrain the Defendants together with their agents, servants, workmen and any other person acting under or by their authority from:

1.	Calling and holding an extraordinary session or meeting of the General Assembly of the Samoa Red Cross Society Incorporated on Friday 13th of August 2010.

2.	And for such further or other order as in the circumstances may appear just;

3.	The costs of this Motion be reserved."

39.	It was incorrect. A subsequent order, unserved, reads:

"BEFORE THE HONOURABLE JUSTICE LESATELE RAPI VAAI – FRIDAY THE 13TH DAY OF AUGUST 2010

UPON READING the Ex-Parte Motion and Affidavit in Support of Muagututagata Peter Ah Him dated the 12th day of August 2010 filed therein this Court being satisfied that the case of the Plaintiff has been made out HEREBY ORDERS that until further Order of this Honourable Court an interim injunction is hereby issued to restrain the Defendants together with their agents, servants, workmen and any other person acting under or by their authority from:

1.	Until further order of the Court, an interim injunction is to be issued forthwith against the Defendants their agents, supporters or any other officers of the Samoa Red Cross from conducting and holding an extraordinary session of the General Assembly or Central Committee of the Samoa Red Cross;

2.	This order together with the Ex-parte Motion and Affidavit in support and Statement of Claim are to be served on the Defendants;

3.	Motion and Statement of Claim to be listed for mention on the 30th August 2010."

40.	The two orders were signed by different Deputy Registrars. The Plaintiff did not serve or deliver an order in terms required by the learned Judge.

41.	The affidavit of Luatua Faafetai Vaeau dated 10 September 2010, states that he served only the order, not its terms and requirements on Vaasilifiti.

42.	The order served by the Plaintiff did not comply with the terms of the order made by a judge of this Court, verifiable by notation. It sought to enjoin the 'whole world' including supporters of the Society from involvement in the meeting of 13 August 2010.

43.	On its own case, the claim of the Plaintiff ought fail in the grant of a contempt order.

44.	It was for those reasons that the Court dismissed the contempt proceedings.

45.	The question of costs has been considered after the receipt of final submissions on these proceedings.

Costs of Contempt Proceedings

46.	The members attending the Committee meetings on 10 and 12 August authorised the commencement of injunctive proceedings.

47.	There is a difference between that decision and a later one deciding to initiate contempt proceedings. On 11 August six members of the 2009 decided:

•	After careful consultation and lengthy well delivered exchanges and deliberations, the forum resolved and unanimously agreed as follows:-

-	This meeting is illegal, unconstituational, unfounded and personal.
-	Contact a lawyer for a legal opinion and seek legitimate and appropriate avenues to stopping this meeting.

•	The meeting all agreed to contact solicitor Fonotoe Meredith and his law company to take legal action on our behalf.

•	We met at 4 p.m. and related to him our issue and concern." 

48.	On 12 August four members gave formal instructions for the initiation of legal action.

49.	No other Minutes specific to the initiation and maintenance of contempt proceedings were tendered in evidence. An inquiry was made of the Ministry of Justice as to whether it would initiate criminal proceedings. Following that inquiry the civil contempt proceedings were commenced against five persons, four of whom were unaware of the court order and three of whom were not parties to the original action.

50.	The exercise of discretion in an award of indemnity costs has been considered by this Court in cases such as Polynesian Limited v Samoa Observer Company Limited [1999] WSSC 35; Wilcox; Ex Parte Venture Industries Pty Limited & Ors (1996) 41 ALR 727; OF Nelson Properties Ltd v Feti [2010] WSSC 43; Wilex Cocoa & Coconut Products Ltd v Electric Power Corporation [2010] WSSC 107.

51.	The Court has jurisdiction to order costs against a non party (Dymocks Franchise Systems (NSW) Pty Limited v Todd (No.2) [2004] UK PC 39; Asset Building M Pritchard Limited v Hambeg Limited (2008) HC NZ).

52.	Matters relevant to a third party costs order include:

(1)	whether the persons who exercised power or direction of a body corporate controlled the litigation for reasons other than the wider interests of that body;

(2)	the exercise of power or control is directed against the other members of the organisation;

(3)	the conduct of the respective parties;

(4)	compliance with the internal rules or procedures of the organisation; and

(5)	 whether the assets of the body corporate ought to be used for the purpose of the controller.

53.	Here there were between four and six persons who attended the meetings of 11 and 12 August.

54.	It is not appropriate that a costs order be made against the Society as an institution. The March 2009 election resulted in:

(1)	the election of a Central Committee of fewer than the minimum required;

(2)	a belief on the part of the President and other officers, as shown in their pleadings and affidavits that the Committee had been elected as a National Executive rather than a Central Committee;

(3)	a similar misunderstanding on the part of those persons calling for an extraordinary meeting;

(4)	failure by the officers elected in 2009 to convene a meeting of the General Meeting as required by the Constitution, Articles 12 and 13;

(5)	the conduct of meetings in the absence of the Secretary General of the Society; and

(6)	withdrawal of instructions to its legal counsel by letter dated 18 October 2010, the date on which the matter was listed before me for hearing, and the announcement of that decision to this Court only at the commencement of the hearing. In doing so the President of the Society failed to take into account the statement made by the Chief Justice on 28 September 2010 that:

"I will set this case tentatively for hearing the week commencing 18.10.2010. This is an indulgence – counsel to consider putting aside cases they are involved in during that week to make way for this case."

55.	On 14 October, legal counsel wrote to the Registrar advising that other court commitments prevented his attendance. At least one of those matters cited was listed before me. Opposing counsel were not advised of this anticipated adjournment until my associate advised Mr. Wulf, who was a witness on the eventual hearing (with a copy to his opponent, Mr. Brunt) that an adjournment would not be automatically granted. It is with this background that the letter of Monday 18 October referring to 'the benefit of the weekend to reflect' withdrawing instructions can be understood. The same firm of counsel was engaged for the hearing.

56.	There are no Minutes of the meeting which decided to continue with the contempt proceedings. Nine persons attended the committee meeting of 10 August. Six persons attended the meeting of 11 August which decided that the requisitioned meeting was 'illegal, unconstitutional, unfounded and personal.' That number was less than one-half of the minimum number required for the valid composition of the Central Committee. Four members only attended on 12 August.

57.	An incorporated association in breach of its own rules remains liable to third parties in tort and contract. In some instances members of a committee may become personally liable for the remuneration involved in that employment. The normal principles of agency govern the question of liability, either by reason of the form or terms of the contract, or because in making the contract they are acting in breach of their authority. 

58.	The Court determines that those who attended the meeting on 11 August be personally, jointly and severally, liable to pay the costs of the Respondents to the application to be assessed on an indemnity basis. The costs are to be paid by:

Muagututagata Pita Ah Him, Fuimaono Taala Malcolm Johnston, Lealiifano Topu Tanielu, Fuimaono Poloma Eteuati, Falefata Tuaniu Petaia and Miriama Fiu Alenepi.

Preliminary Legal Status

59.	There are two legal bases for an objection to the respective cases of the parties. The parties had initially acted on the assumption that the 2009 election had resulted in the appointment of office bearers in accordance with the 1982 Constitution as registered with the Registrar of Incorporated Societies under the 1952 Ordinance. That Constitution provided for governance by a National Executive of sixteen members to be elected annually by the general members. The Minutes of that meeting use the words 'Annual General Meeting' and state:

"The appointment of officers was approved by Members of the AGM through their unanimous affirmative vote."

and reflect that belief shared by the parties. It was, for that reason that the Defendants and their supporters believed that the 'management committee' had served beyond its permitted term.

60.	At the time of the hearing the parties accepted that the 1984 Constitution ratified by the ICRC governed the procedures of management.

61.	The officers elected in 2009 then claimed that they held office for three years as members of the Central Committee appointed in accordance with the Constitution Chapter V. The Defendants contended that the office bearers had been appointed as a Managing Committee with three of their number entitled to a twelve month term. Both parties relied on Article 13 as providing the basis for the validity or invalidity of the extraordinary meeting.

62.	The respective positions result in contradictions which are fatal to their causes. They include:

(1)	If the office bearers were elected as a Central Committee, the 2009 meeting failed to validly elect sufficient members to comply with the prescribed minimum number of fifteen required by Article 15;

(2)	There had been no retirement of one-third of the members of the Central Committee and their replacement by the General Committee at its yearly session as required by Article 13;

(3)	If the office bearers were elected as a Managing Committee the appointments were invalid since that form of committee could only be composed of designated officer bearers and three other members elected by the Central Committee as required by Article 19; and

(4)	The members of a Managing Committee were limited to eight persons, including the Secretary General who in turn could only be appointed by the Central Committee in accordance with Article 23.

63.	 These contradictions do not assist either party.

64.	There is a further fundamental flow overlooked by the parties. The Society was incorporated in accordance with the Incorporated Societies Ordinance 1952. The Ordinance, section 20 relevantly provides:

"Alteration of rules – (1) A society may from time to time alter its rules in manner provided by the said rules, but subject to the provisions of this Ordinance.

(2) Every such alteration shall be in writing signed or sealed in duplicate by at least 3 members of the society, and the documents so signed or sealed shall be delivered to the Registrar accompanied by a statutory declaration made by a solicitor or at least one member to the effect that the said alteration has been made in accordance with the rules of the society.

(3) The Registrar, if satisfied that the alteration has been duly made, and that the rules as so altered conform in all respects to this Ordinance, shall register the alteration in like manner as in the case of the original rules, and the said alteration shall thereupon take effect according to the tenor thereof. Such registration shall be conclusive evidence that all conditions precedent to the making of the alteration, or the registration thereof, have been duly fulfilled."

65.	Any amendment to an existing Constitution or rules, as here, by replacement of part of the Society must be accepted by the Registrar and only upon registration 'shall thereupon take effect'. There is no suggestion that the Constitution ratified by the ICRC was delivered to the Registrar and thus, by statute, has not taken effect. The provision of section 20 is similar to that used in the Friendly Societies Act (UK) 1896, section 13. No amendment or alteration is valid until ratified (Halsbury's Laws of England 4th Ed. Vol. 6, paragraph 225).

66.	The dilemma facing the Court is that any decision upholding or denying the validity of the August meeting involves a logical outcome that the 2009 election was either invalid or if valid under the 1982 Constitution renders the Committee invalid by virtue of clauses 29 and 41 of the Constitution.

67.	The question of the validity of the Committee affects the validity of the proceedings. Had the parties given the potential outcomes more thought and engaged in dialogue the dilemma would not have been created.

Substantive Proceedings

68.	The Plaintiff had sought a permanent order of injunction from

"calling and holding…any meeting in contravention of the Plaintiff's constitution."

a remedy which would deny the Defendants from exercising their rights afforded by the Constitutions of Samoa and the Society.

69.	At trial Counsel agreed to an amendment to the pleading so as to state:

"A declaration that the meeting held on 13 August was contrary to the Constitution and thereby invalid."

70.	The Defendants had sought by Constitution an award of damages in the sum of ST$10,000 against the President (not a party to the proceedings) personally. That claim was struck out and replaced by:

"A declaration that the Extra Ordinary Meeting of the General Assembly held on 13 August 2010 was validly called and held in accordance with the Samoa Red Cross Constitution of 1983."

71.	The Court will examine the issues raised by the parties as if the second Constitution applies.

72.	This Court is involved in the interpretation of the Constitution and not a review of the merits or otherwise of the respective conduct of the parties.

73.	The competing arguments may be summarised as follows:

(1)	The Defendants had not acted in accordance with the Constitution Article 13 in that they did not notify the President of the request or requirement to convene an extraordinary meeting of the General Committee. The 2009 meeting had elected the President for a term of three years and the Defendants were not entitled to convene a meeting without prior referral to him.

(2)	The 2009 meeting elected a Managing Committee in accordance with the Constitution Article 19 which provided for a twelve month term of office. Given the default of a further meeting of the General Assembly within that period the Defendants claim:

(a)	they were entitled, subject to a petition of one-fifth of the membership, to continue a meeting to elect a new committee within the twelve month period;

(b)	independent of (a) to conduct a meeting of the Assembly without formal request to the President or the relevant office bearer of his Committee.

Onus of Proof

74.	The Plaintiff, through its Central Committee, originally sought a permanent injunction restraining at least five of its members by calling for a meeting of the General Assembly. It chose to take contempt proceedings against five of its members or their agents. It chose to maintain an application seeking a declaration that the conduct of the Defendants was unlawful. The President and members of the Central Committee did nothing to resolve a complex problem caused, in part, by mutual misunderstandings and reliance on the original Constitution. In its closing written submissions, it maintains that the President and members of the Committee bear no responsibility for the matters giving rise to these proceedings. Instead Counsel contends that the Defendants have not proved, by evidence, that the meeting was valid.

75.	The above observations concerning onus are not ones of academic interest. The Plaintiff bears the onus to show that the meeting of 13 August was invalid, not the converse. The question of onus is central to some of the contentions made by the Plaintiff. Those questions are a mixture of fact and law. Those contentions include:

(1)	that the notice or request for meeting on 7 August provided insufficient information and as such did not constitute notification and service. In addition the time allowed for the meeting was insufficient and enabled the President and Board to avoid any meeting;

(2)	notice published on 13 August was insufficient in that the Defendants were required, in fact and law to 'serve the President and the Board of their decision' which the Court assumed means personal service on each or at least a nominated person;

(3)	the Defendants have failed to prove to the requisite degree, as a matter of fact, that the petition or request for an extraordinary meeting was signed by at least one-fifth of the financial members;

(4)	the Defendants have failed to prove, to the requisite degree, as a matter of fact that the requisite number of petitioners had requested the holding of a meeting before the decision was taken to convene the meeting; and

(5)	the failure by the Defendants to plead that the Committee elected in March 2009 was invalid because of non compliance with the Constitution Article 15, constitutes an admission that the decisions taken by the Committee in August 2010 were unlawful.

76.	The Defendants face a similar difficulty in their Counterclaim seeking a declaration that the meeting held on 13 August 2010 was validly held in accordance with the Constitution.

77.	In dealing with disputed questions of fact the contending party, either on the Statement of Claim or Counterclaim, is subject to the onus and burden of proof.

The Constitution

78.	It was common ground as between the parties that these proceedings are governed by the Constitution, one recognised by the ICRC. The parties claim that any failure to register the Constitution in accordance with the Ordinance is irrelevant to the determination of this case. That agreement overlooks the import of the Ordinance, section 20.

79.	The Constitution can only be amended after 'examination by the Central Committee and by a decision of the General Assembly taken by two-thirds (2/3) of those present and voting' (Article 38). Any proposed amendments must be first communicated to the ICRC. The substitution of 'months' for 'years' shown in the Court's exhibit of the Constitution Article 17 is regarded as a notation only, and not an amendment. However its presence raises the question of whether there had been a typographical error or attempted rectification of an original error. Read literally the Central Committee need only meet once in every three years. The General Assembly, which elects the Central Committee, is required to meet annually with a rotating term of office requiring a percentage of members to retire at each annual meeting. Any Managing Committee is composed of five ex-officers and three members of the Central Committee elected for a twelve month term of office, a provision incompatible with the requirement that the Central Committee need only meet once in each three years. Commonsense and the principles of efficacious interpretation suggest that the amended wording 3 months reflects a necessary amendment.

80.	Examination of the telexes dated 17 February 1984, the Society's Minutes of 23 February of the same year, the earlier exchanges received 18 July 1983 and Samoan Minutes dated 19 July 1983 do not resolve the issue. The Minutes of a meeting held on 24 June 1983 which might resolve the tension were neither tendered nor referred to during the hearing.

81.	What is clear from examination of the evidence of the formation of the Constitution, the amendments required by the ICRC, the Memorandum of Understanding with Government is that the attempts in 1984 were to apply rules in accordance with the principles of an integral organisation accepted by the world irrespective of faith, colour or creed, sought to enhance the lives of others beset by war, cruelty and disaster. What is clear from the above and any interpretative tension between Articles 13, 15 and 17 (three year term) is that the Committee elected in March 2009 was not entitled to ignore or refuse to approve or recognise an extraordinary meeting called at the request of one-fifth of the members of the General Assembly. Article 13 is disjunctive. It had three components:

(1)	it meets 'each year in ordinary session' fixing its own time and place or in default at a time or place within that period, by the Central Committee;

(2)	as an extraordinary session on the initiative of the Central Committee; or

(3)	at the request of one-fifth of the members of the General Assembly.

82.	The third component does not require the consent or approval of the Central Committee. It is, indeed, a protective provision designed to meet a situation where the Central Committee fails or refuses to respond to its membership or is moribund and requires removal. The question of whether the meeting was at the request of 'one fifth of the members of the General Assembly' is one of fact not the acknowledgment by the President or a Committee. Hence the importance of the question of 'onus', as previously stated.

83.	The Constitution Article 12 provides that:

"The General Assembly is the highest authority of the Western Samoa Red Cross Society (Inc)."

84.	It is empowered to elect the members of the Central Committee. Article 13 provides:

"The General Assembly meets each year in ordinary session, the time and place laid down by the previous General Assembly, or by the Central Committee acting under the authority delegated to it by the General Assembly. It meets in extraordinary session on the initiative of the Central Committee, or at the request of one fifth of the members of the General Assembly."

85.	No time had been given by the 2009 meeting or the Central Committee for the holding of a meeting of the General Assembly in 2010.

86.	The request of one-fifth of the members is mandatory; the consent of the Central Committee is not required. Article 14 provides:

"The General Assembly is presided over by the President of the Western Samoa Red Cross Society (Inc.).

Except where otherwise provided for in these Statutes the General Assembly takes all its decision with a quorum of one third (1/3) its members and by a majority of those present and voting.

Each of its members has a single vote.

Proxy voting is not permitted." 

87.	Article 15 provides for the Society to be controlled and administered by the Central Committee composed of:

(1)	"…no less than fifteen (15) and no more than twenty one (21) members elected by the General Assembly, one third (1/3) of these shall retire and be replaced at each General Assembly";

(2)	the Chairman of Regional Committees;

(3)	a maximum of five members appointed by government departments;

(4)	a maximum number of five persons chosen by the Central Committee.

88.	The term of office of members of the Central Committee, subject to (1) supra is that of three years.

89.	The Central Committee is empowered to appoint the Secretary General (Article 16) and three members of the Managing Committee (Article 19).

90.	The Defendants are wrong in contending that the March 2009 General Assembly elected a Managing Committee for a term of twelve months. Article 19 provides:

"The Managing Committee is composed of the President, the Vice-Presidents, the Treasurer, the Secretary and the Secretary General of the Western Samoa Red Cross Society (Inc.) and of three (3) members elected by the Central Committee for a period of one year.

All the members of the Managing Committee are eligible for re-election."

91.	The President, Vice President, Treasurer, Secretary (no provision made in the Constitution) and Secretary General are ex-officio members and it is only the three elected members whose term is limited to twelve months.

92.	Had the 1984 Constitution been registered in accordance with the Ordinance the March 2009 Assembly would have elected a Central Committee for a term of three years. However, the Assembly was required to elect a minimum of fifteen. The Central Committee failed to ensure that one-third of the members elected retired and be replaced by every General Assembly. The Central Committee failed to comply with the requirements of Article 13 which requires an annual meeting of the Assembly which in turn activates the rotation requirement of Article 15. There is no evidence that the Central Committee attempted to include any chairperson of each Regional Committee or make any approach to any government department.

93.	There is a tension within the terms of Article 15. One portion of the Article states:

"The term of office of members of the Central Committee is three (3) years. It may be renewed."

while earlier it provides:

"…one third (1/3) of these shall retire and be replaced at each General Assembly."

94.	That tension is readily resolved. One-third of the persons elected by the Assembly, irrespective of the office held, is required to stand down at the subsequent meeting of the General Assembly but would be eligible for re-election.

95.	The governance of the Society is:

(1)	the General Assembly is the supreme authority;

(2)	the Assembly elects a Central Committee which is invested with 'all the powers necessary for carrying out the aims of … (the) Society' which include, subject to Articles 12-13:

(a)	the appointment of the Secretary General;
(b)	the setting up and dissolution of regional committees;
(c)	the setting up of the Committee to give effect to the statutes;
(d)	voting on decisions taken by the Managing Committee or President between its sessions. The Central Committee is, absent any provision in Chapter IV, responsible for the election of officer bearers including the President.

(3)	the Central Committee may appoint a Managing Committee. The President, Vice President, Treasurer, Secretary and Secretary General are ex-officio members. The Central Committee may elect three members each to hold tenure of one year. The Managing Committee is required to meet at least once a month and is vested with powers delegated by the General Committee;

(4)	The Constitution can only be amended by the General Assembly on a resolution passed by two-thirds of those present and voting. The amendments must first be examined by the Central Committee and communication with ICRC.

96.	The 2009 General Assembly elected a Central Committee. It is clear that the form of election and subsequent actions were contrary to the Constitution. But it does not follow that its conduct was unlawful. That matter was not originally put in issue by the parties and the Court will resolve that question in consideration of the status of an international organisation responsible for compliance and governance.

97.	The Court will attempt to resolve a number of secondary or subsidiary arguments raised by the parties.

Service

98.	Service of the notice of meeting ought be effected on the National Secretary (Article 24) yet none had been appointed or the Secretary General as the Chief Executive Officer (Article 23). The President is required to ensure supervision and implementation and is afforded some exceptional powers. There is no constitutional requirement that he must be served with each legal or constitutional document.

99.	Two questions arise:

(1)	Does the Constitution require that service of the petition be served on the President?

(2)	If not, is it a question of fact as to whether one-fifth or two-fifths of the membership requisitioned the meeting?

Time of Calling and Compliance

100.	The time for the calling of the meeting by the requisite number of members is before the commencement of the meeting. This is not a nation/state constitutional case. There may be cases where oppression or procedural unfairness requires procedural fairness and protection by the courts. This is not such a case. It concerns an international organisation and compliance or otherwise with its Constitution. The Defendants provided procedural fairness to the officers of the Society. The rules of an organisation ought be interpreted and applied in accordance with the principles of natural justice (John v Rees [1970] Ch. 345). This Court ought not to grant equitable relief on the basis of procedural unfairness.

101.	If rules do not stipulate a procedure to be adopted, a meeting ought be convened in a manner which will bring notice of that meeting to every member (Campbell v Higgins (1957) FLR 317; Labouchere v Earl of Wharncliffe (1879) 13 Ch D 346; Halsbury's Laws of England 4th Ed. Vol. 6 253). Drawing from an analogy with company law, a requisition ought be deposited at the registered office (see generally: Law and Procedure at Meetings, Joska, 5th edition, 110). Here the meeting of the organising committee was held at the office of the Society, the Secretary General had written notice, the President had been invited to attend and, as a matter of fact, notice was publicly given through the Observer newspaper one week before the meeting.

Competing Equities

102.	The Plaintiff, through its officers has sought the discretionary, equitable remedies of injunction and declaration. It ought to fail in its application. The evidence suggests that between 150-200 members of the Society attended the meeting and voted in favour of certain resolutions. Sufficient members of the body being present can agree to waive formalities with regard to notice and the business they execute will be valid notwithstanding the absence of notice (Machell v Newinson 1724 11 East 84, Joske (supra) at 21). The officers of the Society sought, not to meet the concerns of the meeting, but to defeat its decisions by appeal to equity. Default on the part of directors in proceedings to convene a meeting permits the holding of a valid requisitioned meeting (Aberfeldie Gold Mining Co. v Walters 1876 2 VLR 116). On that basis the claim ought to fail.

The Meeting

103.	The meeting was convened at the request of one-fifth of the members of the General Assembly. Article 13 permits the holding of an extraordinary session on the initiative of the Central Committee or by a request of the members. The Central Committee has no power to prevent its occurrence.

104.	The Central Committee had failed to convene an ordinary General Meeting of general session as required by Article 13, nor had it not initiated an extraordinary session. Had members of the Central Committee met with the organising committee or the Secretary General on 7 August, they might have controlled the date and venue of that meeting. Had they met with the organisers or the Secretary General after the publication of the date and venue they might have been able to fix a different date or venue. They did not. Had they met and resolved to hold a meeting initiated by the Board or as a response to the request of the members the meeting convened by them that meeting might have prevailed over that summoned for 13 August. They did neither. They might have inquired of the Secretary General as to the records establishing the validity of the claim that one-fifth of the membership, and if necessary, examine the supporting documentation, but failed to do so. What the Central Committee could not do was to prevent the holding of a meeting requested in accordance with Article 13. What the Committee could not do was ignore the request.

105.	The ex-parte application was not served on any of the Defendants, before the matter was placed before a judge.
106.	The Committee did not communicate the terms of the ex-parte interim injunction to the members assembled for the meeting nor was the accompanying documentation supplied to any of the Defendants as required by the Judge.

107.	Article 14 provides that a meeting of the General Assembly 'is presided over by the President' or in his absence by one of the Vice Presidents or the Secretary General (Article 22). Whether those provisions apply to any extraordinary meeting is not clear and not necessary for this Court to consider. The President elected not to attend. The members constituted as an extraordinary General Assembly had ultimate power to control its conduct.

108.	This was not a mere academic exercise. There was genuine concern by some members that failure to meet the 31 August deadline would imperil the Society.

109.	This Court is not concerned with the justification or otherwise of the policy or specific resolutions approved or adopted by the meeting of 13 August. It is not concerned with the correctness or otherwise of their terms. It is concerned solely with the validity of the meeting. The Court understands that the meeting passed resolutions concerning:

(1)	no confidence in the Central Committee because of abuse of power;

(2)	removal of office of 'the current President and his 'Management Committee';

(3)	the appointment by 'the General Assembly' as the 'Central Committee' of a new 'Interim Managing Committee';

(4)	the election of a new Managing Committee comprising seven members, named in the resolution;

(5)	the appointment of 'the General Assembly' as the 'Central Committee' and its appointment of 'Interim Officers' and signatures of bank accounts 'until its ordinary session (Annual General Meeting) when new officers are elected';

(6)	the Secretary General has power to maintain bank accounts and be authorised to co-sign with another interim officer of any cheques or promissory notes drawn on the Society.

110.	The Court has not been asked to determine whether any or all of the above resolutions come within the power afforded by the Constitution, Article 15. In failing to properly define the issues the parties have failed to properly bring an issue to the Court and have, each, sought to use the Court to resolve their dispute. In doing so each has failed to serve the interests of the Society. The Court recognises the difficulties faced by the parties but ought not to be seen as an advisory board. It directs that a copy of this judgment be sent to the ICRC for its consideration and resolution. The Samoan courts ought not be required to enter into the management and political outcomes of an organisation which has served the people of Samoa.

Determinations

111.	The parties have not fully determined the issues between them. Each has originally sought an injunction or damages. Each has proceeded on a misunderstanding of the relevant constitutional provisions. The real debate, not litigated or identified by the parties, concerns the resolutions passed on the August meetings.

112.	The Court is conscious of the harm which will follow if it simply declares that the 1982 Constitution prevails and the 2009 election void. It is not in the public interest to determine that all actions undertaken by the Society through its Committee, since that date, were beyond power. The Court cannot overlook the failure of the Committee to comply with the requirements of Article 13. It ought not, if possible, render futile the wishes of those members who, in 2009, attempted to provide a working structure to give effect to the aims and objectives of a humanitarian agency. There is no power in the 1982 Constitution for members to requisition a special meeting, that right being reserved to the National Executive (Clause 42). For the Court to declare that the 2009 meeting elected a National Committee would render the 2010 extraordinary meeting void. In doing so, the Court would likewise be obliged to declare the Committee invalid since it had stayed in office beyond the time permitted by the 1982 Constitution, Clause 28. To simply uphold the validity of the August 2010 meeting, without more, would involve the declaration that the election and the Committee was invalid.

113.	The parties have engaged in a lose/lose contest, using the Court as a vehicle to the detriment of the Society.

Resolution of Contradictions

114.	The 1984 Constitution has no effect in terms of the domestic law of Samoa. However, it has been ratified by an international society and a league of international organisations, established by compact (Articles 36, 38). To that extent members have agreed to the governance of the Society in accordance with the 1984 document. To that extent the Court accepts that the meeting in 2009 was validly held in accordance with that compact irrespective of the subjective beliefs of those attending. The Rules form part of the contract between the members (Halsbury (supra) at paragraph 220).

115.	There is one firm commencing point. Power had always remained with the members from the Society's inception, before and after incorporation and ratification. The 2009 meeting was within the power of the members. That meeting elected a Committee. Whether or not it was a 1982 National Executive or a 1984 Central Committee is irrelevant to this aspect of the case. The meeting was valid and a Committee was validly elected.
116.	It is not necessary to determine whether, if a Central Committee was elected, it remained invalid because of non compliance with Article 15. There was a Committee and it failed to call an annual meeting of members required by both the 1982 and 1984 Constitutions.

117.	The meeting held on 13 August was that of the General Assembly of members irrespective of whether or not it was convened in accordance with the 1982 Constitution, Clause 42 or the 1984 Constitution, Article 13.

118.	Both meetings were valid exercises of power by the members. The 1984 Constitution, Article 12 provides that:

"the General Assembly is the highest authority of the Western Samoa Red Cross Society (Inc.)."

119.	The 1982 Constitution, Article 29, requires annual election by an Annual General Meeting, with powers of election and, by implication, removal.

120.	In either case, it was the meeting of members which exercised power.

121.	The answer to the application is that the Plaintiff has not established that the August 2010 meeting was invalid.

Conclusion

122.	Domestic law requires a finding that the 2009 meeting elected a National Executive for a period of twelve months as provided for by the 1982 Constitution. There was no rule providing for a requisitioned meeting in August 2010. But once met, the meeting itself assumed power over the management of the Society. It follows that the Court declares the 2010 extraordinary meeting to have been validly held.

123.	International ratification permits a finding that the 2009 meeting elected a Central Committee for a period of three years subject to rotation. But the Committee failed to conduct a general meeting of members. The requisitioned meeting of 13 August 2010 was a valid meeting in accordance with Article 15.

124.	I accept that the above resolution is unsatisfactory. It is likely that resolution of secondary and future issues will not be resolved by the parties. It is for that reason that the Court directs that a copy of these reasons be forwarded to the Registrar and the ICRC. 

ORDERS

(1)	The Court dismisses the application by the Plaintiff for a declaration that the meeting of the Society held on 13 August 2010 be declared unlawful and invalid.

(2)	The Court accepts that the application made by the Defendants in their Counterclaim that the meeting of 13 August 2010 was validly held and determines accordingly.

(3)	The application to fine or punish the Defendants for Civil Contempt is dismissed. The application to imprison the first two Defendants is dismissed.

(4)	The persons named in the judgment namely, Muagututagata Pita Ah Him, Fuimaono Taala Malcolm Johnston, Lealiifano Topu Tanielu, Fuimaono Poloma Eteuati, Falefata Tuaniu Petaia and Miriama Fiu Alenepi pay the costs of the Respondents named in the contempt proceedings on an indemnity basis.

(5)	The parties have leave to make submissions on the question of costs in the action.

(6)	The parties have leave to make submissions in support of consequential matters.

The Court directs that the Registrar of this Court forwards a copy of this judgment to the Registrar of Incorporated Societies appointed under the Ordinance and the Secretary General of the ICRC within seven (7) days of its date of publication.

………………………………
(JUSTICE SLICER)