Daniel v Port Vila City Council

DECISION AS TO THE 
URGENT EX PARTE STAY APPLICATION

Introduction

1.    On 15 September 2026, a Stay application was filed by the applicants. The applicants are the councillors of the Port Vila City Council, duly elected on 29 August 2026. 
2.    There is no reference as to which rule of the Civil Procedure Rules No. 49 of 2002 (“the CPR”) this application is made under. As the title states Ex Parte Stay Application, it suggests that the application is made pursuant to Rule 7.5 of the CPR. The application is treated as so.

3.    The main ground for this application is that the First Sitting of the Port Vila City Council was not lawfully constituted to conduct the business of election of the new Lord Mayor, Deputy Lord Mayor and other office bearers of the Port Vila City Council (“the first defendant”).  As a result, the applicants filed a petition with the Elections Dispute Committee (“EDC”) and the Stay application is made to restrain the defendants from holding any meetings until the petition has been determined.

4.    The matter was listed for hearing of this application on 17 September 2026. Counsel for the defendants attended the hearing and sought an adjournment as they had not been served with the Stay application. The adjournment was granted and the hearing was adjourned to today.

5.    The applicants’ counsel was not present as he had to attend his mother’s funeral in New Caledonia. The applicants elected Mr Albert Sandy Daniel as their spokesman in the hearing. He was granted leave to speak and before the hearing proceeded, the spokesman informed the court, in preliminary matters, that their counsel is still in New Caledonia, and sought the following:

a.    An adjournment so counsel for the defendants to serve him with their responses;
b.    The matter be determined on papers; and
c.    An interim stay order be granted, as they have been served with a notice for meeting for Friday 25 September 2026.

6.    A submission was filed by the first respondent, on 23 September 2026. Supporting evidence by the Acting Town Clerk, was filed on 22 September 2026. The submission was served on the applicants, which he confirmed receipt.

7.    Mr Ngwele filed an application to dismiss the Stay Application with supporting evidence, on 23 September 2026. This was served on the applicants, to which the spokesman confirmed receipt.

8.    Mr Nalyal informed the court that he has yet to file a notice of beginning to act so has not been served with the Stay application. However, he has received the sworn statement of the Acting Town Clerk. He informed the court that when he is served with the Stay application, he will need time to respond to the Stay application.

9.    I dismiss 5(a) and (c) above, on the ground that the urgent Stay application is brought by applicants and it is in their best interest to seek another legal counsel to advance their application, if their lawyer is unavailable. While the court understands Mr Willie Daniel’s situation, the matter has been scheduled on an urgent basis, and the defendants have made the effort to attend the hearing today.

10.    Given that the applicants have been served with the first respondent’s submission, and the second respondent’s application to dismiss the Stay application, the court is satisfied that there is enough evidence before it to determine the Stay application on the papers. The application filed by Mr Ngwele to dismiss the ex parte Stay application is taken as response of the second respondents (J. Surao, L. Takuru Yakeula and Marie Joseph) to the application. Mr Nalyal did not oppose Mr Blake and Mr Ngwele’s oral responses in court.

Legal framework

11.    Rule 7.5 of the CPR is as follows,

7.5    Application for interlocutory order before a proceeding is started
(1)    A person may apply for an interlocutory order before a proceeding has started if:
(a)    The applicant has a serious question to be tried; and
(b)    The applicant would be seriously disadvantaged if the order is not granted.
(2)    …
(3)    The court may make the order if it is satisfied that:
(a)    The applicant has a serious question to be tried and, if the evidence brought by the applicant remains as it is, the applicant is likely to succeed; and
(b)    The applicant would be seriously disadvantaged if the order is not made.
(4)    When making the order, the court may also order that the applicant file a claim by the time stated in the order.

Is there a serious question to be tried?

12.    There are two requirements that must be satisfied by the applicants, under Rule 7.5. The first requirement is whether there is a serious question to be tried. To determine this, I turn to the purpose of the Stay application. On 10 September 2026, the applicants filed a petition with the Elections Dispute Committee (“the EDC”). They claim that the First sitting of the new Port Vila, conducted on 9 September 2026, by the first and second respondents is null and void and of no effect. The ground for the petition is that the First sitting was not lawfully constituted to conduct the business of election of the new Lord Mayor, the Deputy Lord Mayor and other office bearers. No determination has been made by the EDC at this point. 

13.    The Stay application seeks orders to injunct and restrain the defendants from 

a.    Calling meetings of the Port Vila City Council; and
b.    Taking hold and occupying the Office of Mayor and Deputy Mayor.

A Stay application is made to pause the execution of a decision. For instance, if the EDC had made a determination on the petition, in favor of the respondents, the applicants can apply to stay that decision if they elect to challenge the decision. There is no decision made on the petition filed before the EDC ^[1] yet, therefore, the Stay application is premature and misconceived.

14.    In making this conclusion, I turn to the nature of the application. This application is seeking an interim injunction on the defendants, pending the outcome of their petition before the EDC. Such an application must show that the actions of the defendants will cause irreparable harm. To determine this, I must look at the process of the election of the Lord Mayor during the First sitting.

15.    The first defendant deposed that after the municipal election, a notice was served on all the elected councillors to attend the First sitting. ^[2] The notice was dated 1 September 2026, and served on all the councillors on 2 September 2026. It was a convocation notice for the election of the mayor of Port Vila and the date scheduled was 9 September 2026. Regulation 22 of the Regulations provide,

22.    Notice of election of mayor or deputy mayor
Notice of the election of a mayor or deputy mayor shall be given to members of the council not less than 3 days before the election is due to take place.

The convocation notice was made 8 days before the scheduled sitting. All councillors received it 7 days before the sitting. The convocation notice complied with Regulation 22. It is in order.

16.    On the date of the First sitting, the second respondents attended. The applicants did not. There was no reason given for not attending the First sitting. No leave of absence was granted to them. The applicants elected to boycott the sitting, on the notion that a 2/3 quorum will not be met. The meeting proceeded as scheduled and the Lord Mayor, his deputy and office bearers were elected. The applicants submit that the election is unlawful as quorum was not met. Regulation 19(1) provides,

19.    Election of mayors and deputy mayors and method of election
(1)    Each municipal council shall elect by secret ballot from among its members a mayor and a deputy major.
[My emphasis]

All 17 councillors were served with the convocation notice. The applicants submit that Regulation 19(1) means that all 17 councillors must be present, and that the election cannot be carried out with 11 councillors only. Moreover, they refer to Article 41 of the Constitution, which is in relation to the election of Prime Minister in parliament, and a custom practice of a quorum of 2/3. I will discuss these two points of argument later. Turning back to the meaning of Regulation 19(1), I refer to Section 15 of the Act which provides for the proceedings of a council. Section 15(1) provides for the quorum of any meeting of the council. It states,

15.    Proceedings of a council
(1)    The quorum for any meeting of a council shall be – 
(a)    In the case of a council composed of twelve members or less, one third of the total membership; and
(b)    In the case of a council composed of over twelve members, one half of the total membership:

Provided that vacancies in the membership of a council and the offices of councillors granted leave of absence by a council under section 10(a) shall for the purposes of paragraph (b) of this subsection, be excluded from the total membership.
[My emphasis]

The First sitting is a meeting convened for the purposes of electing a Mayor, the Deputy Mayor and office bearers. The council consists of 17 councillors, including the applicants. There were no vacant seats, nor were any of the applicants granted leave of absence. Although the applicants were absent, without a proper leave of absence, their seats must be counted. This means 17. Half of 17 is 8.5 which is rounded off to 9. That is the quorum. There were 11 councillors present at the First sitting on 9 September 2026, satisfying the quorum.

17.    I will now address the two points the applicants raised to support their argument. The first point is that Regulation 19 is a similar text to Article 41 of the Constitution and must be applied as Article 41. Article 41 provides for the election of the Prime Minister. The municipal is not the parliament. It is governed by the Municipalities Act, which provide that the quorum for a council composing of over 12 members is half of whatever number it is. The quorum in this case is 9. Although the wordings are similar, Section 15 of the Act cannot be taken to act as Article 41 of the Constitution. This point does not hold weight and is dismissed.

18.    The second point raised in their argument is that a quorum of 2/3 is a custom practice. There is no legal basis for this, as Section 15 of the Act is very clear on the quorum of a council meeting. This point is also dismissed.

19.    In deciphering the First sitting held on 9 September 2026, I find that the actions of the defendants have complied with the Act and the Regulations. Their actions will not cause irreparable harm on the applicants. On the contrary, their actions will advance the work of the first defendant.

20.    For the foregoing reasons, the first requirement in Rule 7.5 is not satisfied. There is no serious question to be tried.

Will the applicants be seriously disadvantaged if the order is not granted?

21.    Following from what I have deciphered, I now consider if the applicants will be seriously disadvantaged if the order is not granted. If the order is not granted, the applicants still remain councillors. However, the first defendant will be able to carry out work that needs to be done within the municipality. If the order is granted, there will be a delay in the election of a mayor, its deputy and its office bearers. This will disrupt the status quo of the municipality. 

22.    I do not find that the applicants will be seriously disadvantaged if the order is not granted. The second requirement of Rule 7.5 is not satisfied.
 
Outcome

23.    The Stay application is premature and misconceived.

24.    The application for interim injunction is dismissed.

25.    The applicants must pay costs of VT50,000 to the first and second defendants.

Dated at Port Vila, on this 24th day of September, 2026

BY THE COURT

……………………………..
Justice B. Kanas Joshua

[1][ Sworn Statement of Albert Sandy Daniel, Annexure C – filed on 15/9/26.
[2] Sworn Statement of Ettienne Ravo, Annexure B – filed on 22/9/26.