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Cullwick v Ligo [2003] VUSC 60; Civil Case 051 of 2003 (21 October 2003)

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

Civil Case No. 51 of 2003

BETWEEN:

LEIAS CULLWICK, EASTUARY DEAMER and EILEEN BOE
Plaintiffs

AND:

JENNY LIGO
First Defendant

AND:

ELIZABETH HOSEA, LILY AMOS, ELIZABETH FAY ARU, SUPIE FRANK, NAOMI MALAU, WENDY TOM, MARIANE BANI, EILEEN BOE, ELDAD WARD and PAULA ARUHURI
Second Defendants

AND:

ANZ BANK (VANUATU) LTD.
Third Defendant

AND:

WESTPAC BANK (VANUATU) LTD.
Fourth Defendant

JUDGMENT

CLAIM

The three Claimants Leias Cullwick, Eastuary Deamer and Eileen Boe were President, Treasurer and Secretary respectively of the Vanuatu National Council of Women VNCW which is a non-governmental, non-profit organization established in 1980. Its main objectives and functions are to unify women, to promote family unity, peace and prosperity, to improve the quality of women's lives and to assist and promote women in all economic, social, political and cultural activities as equal partners with men in the development of Vanuatu. The three Claimants were elected to their positions during the last week of October 2002 at the National Conference of the VNCW held at the Chiefs' Nakamal Port Vila. Their term of office was to be for two years but on Friday 14 March 2003 at Port Vila, a vote of two thirds of the Board members passed a motion to remove the President and the Treasurer from the Board.

The three Claimants seek orders from the Court in relation to Bank accounts belonging to the VNCW and for a declaration by the Court that the meeting on 14 March 2003 removing the President and the Treasurer from their positions was in breach of the VNCW Constitution and therefore void and of no effect and an order directing that the Claimants return to their respective offices and carry out their normal duties.

Orders in relation to Bank accounts protecting the assets of the VNCW have been made by the Court from time to time and the issues for determination at the hearing were in relation to the declaration as to the removal and the order directing the Claimants to return to their offices.

As part of the way the case has developed the Court, in an endeavour to have the matter resolved amicably between the parties, made a ruling on questions addressed to it. That ruling was made on 25 June 2003 but despite being armed with the ruling the parties have been unable to resolve the matter and a decision is required.

When the matter was set down for hearing initially, the first and second Defendants were ordered not to participate in the trial because they had failed to pay the appropriate hearing fee. Accordingly the trial was conducted by hearing submissions from the Claimants on the VNCW Constitution and on the various sworn statements which had been filed.

SUBMISSIONS

The Claimants submitted that there were two main reasons why the orders made at the Board meeting on 14 March 2003 ought to be null and void as being in breach of the Constitution.

The first issue related to whether or not a reconciliation meeting carried out on 25 January 2003 at the Nakamal was a proper mediation process under part 3 of the Constitution. The second point was whether the Board meeting on 14 March 2003 had been properly convened in accordance with the specific provisions relating to Board meetings under the Constitution.

EVIDENCE

I have read and considered all the sworn statements filed both on behalf of the Claimants and the Defendants. Clearly there are major disputes over the running of the VNCW which, as Justice Coventry said in his ruling of 25 June 2003, have:

"Split the organization is hampering it's activities and is jeopardising it's funding"

His Honour confirmed the temporary orders that he made to ensure that the VNCW continued to operate. Clearly from the sworn statements the organization is presently riddled with personal vendettas, conflicts of personality and personal agendas. All of this, in my view, is contrary to the first paragraph of the preamble to the Constitution of VNCW, where it is stated: -

"Unity, peace and prosperity are the foundation and hope of the women of Vanuatu and of the Vanuatu National Council of Women.

Personal dignity, integrity, peace and unity for Vanuatu women and everyone working together is very important in women's lives and for the well-being of the Vanuatu National Council of Women"

Even in part 8 of the Constitution it is stated: -

"It is the aim of this Constitution that members of VNCW conduct themselves in a spirit of harmony, co-operation and friendliness, to further and uphold the aims of VNCW".

FINDINGS

Clearly towards the end of 2002 a dispute arose. It is clear under the Constitution that disputes are to be resolve in accordance with part 8 of the Constitution. No resolution of the dispute between President and Chief Executive Officer and other Board members was able to be resolved by co-operative discussion at meetings of the Board and, in terms of Justice Coventry's rulings, the dispute had to go to mediation. Effectively that was set up by Mrs. Boe at the full day meeting on Saturday 25 January 2003. Clearly she acted as mediator. Clearly she could not do so under Article 8.3 (5) as she is a member of the VNCW. Under Article 8.3 (6) as the dispute was not resolved after mediation a board member (including the President and the Treasurer) could be removed from the office by a vote of two thirds of the Board of Directors. However, clearly on the evidence the Board meeting of 14 March 2003 was not convened in accordance with the Constitution because, in accordance with the rulings on questions already given and in particular question 2, it was for the Board to organize it's own meeting (see Article 5.3).

The Chief Executive Officer (CEO) cannot organize a meeting of her own volition. If the board asked her to organise a meeting she could do so, but only in terms of a request by the Board. Clearly in this case the CEO prepared the agenda for the meeting of the Board which is contrary to Rule 5.9 (2) (b). That was already answered in the response to question 2 of the ruling. Thus the resolution of the Board on 14 March 2003 removing the President and the Treasurer from office was unconstitutional as it failed to follow the procedure of the Constitution as neither the President nor the Secretary were involve in preparation for that Board meeting.

RULING

However, it remains to determine what the Court should do as a consequence of the removal of the President and the Treasurer being deemed unconstitutional. I am aware that the elected term of those officers was for two years but the Constitution provides that there must be a National Conference held once a year, which is the Annual General Meeting. The Board is to be elected at the Annual General Meeting. The last Annual General Meeting was during the last week of October 2002 and another National Conference is now due. The Court must adopt a general supervisory role in matters which are placed before it for consideration and must ensure the best interests of the organisation involved, here the VNCW. The Court must adopt a pragmatic and common sense approach. I am of the view that the orders sought by the Claimants that they be directed to return to their offices and return to their duties is not in the best interests of VNCW in the circumstances of internal discontent, disagreement and dissent which are common threads in most of the sworn statements. Accordingly, the Court declines to make that order but directs that a National Conference be held as soon as possible and that at that conference a fresh Board of Directors be elected at that Annual General Meeting in accordance with Part 5 of the Constitution.

In the meantime, it is directed that no Board Meetings or purported Board Meetings be called or held. It is further ordered that the CEO continue the day to day running of the VNCW until a new Board is elected and up and running and that the existing orders in relation the to the bank accounts continue until that time.

COSTS

As to the question of costs, some of which have been reserved from time to time during the course of the hearing, I note that on one occasion the Court considered whether the action should be struck out for want of prosecution by the Claimants. I note that the members of VNCW, apart from the CEO and other staff, are largely voluntary workers giving generously of their time and support for furtherance of the aims of VNCW. I also add that, although the Claimants have required the Court to make a decision in relation to their claim, I am of the view that the rulings earlier made by the Court on 25 June 2003 largely answered their concerns and that with even a small amount of cooperation and working together with goodwill the issues could have been resolved internally months ago. I remind the parties that it is incumbent upon members of VNCW to remember and operate under the stated aims of their organisation.

Having said all that, I consider that costs should lie where they fall and I make no order for costs one way or the other.

Dated AT PORT VILA, this 21st day of October 2003

BY THE COURT

P. I. TRESTON
Judge