Dispute Tribunal gives its reasons

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Fesola’i Vaaiga Tuigamala.

Fesola’i Vaaiga Tuigamala. (Photo: Samoa Observer)

“ There was also the issue of the “casting vote”. The Applicant say there was a “tie” and he as President should have had the casting vote according to Article 14. The Respondent say there was no tie and the votes were 6-4 to Papalii Pasi Poloa…


Compiled by Joyetter Luamanu 

 

The Samoa Sports Dispute Tribunal has recommended dissolving the current Samoa Amateur Boxing Association (S.A.B.A.) Executive. 

The Tribunal was chaired by Justice Mata Keli Tuatagaloa with members including Tuisugaletaua Aveau Sofara and Rev. Dr. Siaosi Salesulu.

Cabinet had ordered the Tribunal to look into the removal of rugby legend, Fesola’i Va’aiga Tu’igamala, as President of the Samoa Amateur Boxing Association (S.A.B.A.).

The Tribunal had also been asked to investigate:

• Whether the Annual General Meeting of S.A.B.A. on 10 November 2017 and whether correct and proper procedures were followed at this meeting;

• The current Executive membership of S.A.B.A. and whether such positions held were obtained appropriately;

• The removal of Fesola’i Va’aiga Tuigamala as President of S.A.B.A. whether such removal followed proper procedure and the Constitution of S.A.B.A.; and

• The Constitution of S.A.B.A. and if there are inconsistencies so as to cause confusion.

The following is the Tribunal’s ruling:

 

RULING BY THE SPORTS TRIBUNAL 

This is the decision by the Samoa Sports Disputes Tribunal (“the Tribunal”) appointed pursuant to the Sports Disputes Resolution Act 2008 (“the Act”) concerning a dispute within the Samoa Amateur Boxing Association (S.A.B.A.). This matter was referred to the Tribunal by warrant under the hand of His Highness, the Head of State dated the 28 February 2018 which warrant also appointed the two Tribunal members. The Presiding member was appointed by the Chief Justice by warrant dated 22 February 2018. The Tribunal consisted of Justice Niava Mata Tuatagaloa (Presiding Member), Tuisugaletaua Aveau Sofara (Member) and Rev. Dr. Siaosi Salesulu (Member). 

 

Introduction 

[1] The Samoa Amateur Boxing Association was incorporated and registered under the Incorporated Societies Ordinance 1952 in 1979. 

[2] The Applicant is a well known former All Blacks and Manu Samoa rugby player who since 2013 moved to Samoa to live permanently. In 2015 the Applicant set up the Plantation Boxing Ring which trains amateur boxers and became a member of S.A.B.A. in 2016. 

[3] The Applicant was elected as President at a Special General Meeting (“S.G.M.”) of S.A.B.A. held on 19 January 2017 ousting Aualiitia Faafouina Milford. 

[4] The Respondents are the current executive members of S.A.B.A. elected at its Annual General Meeting (“A.G.M.”) held on 10 November 2017. Papalii Poloa was elected as President, Aualiitia Faafouina as one of two Vice Presidents; Faletolu Su’a as Secretary and Tavui Mike Lemisio as Treasurer while Luamanuvae Gaugau Mateo is an executive member. 

[5] The Applicant was represented by Mr Luatutu Andre Volentras whereas the Respondents were self represented. 

[6] The current S.A.B.A. Constitution registered with the Registrar of Incorporated Societies is the Constitution of 1984. 

 

The Terms of Reference of the Tribunal 

[7] The Tribunal shall investigate:

(i) The A.G.M. of 10 November 2017 and whether correct and proper procedures were followed;

(ii) The current S.A.B.A. Executive and whether such positions held were obtained appropriately; 

 (iii) The removal of the Applicant, Fesola’i Vaaiga Tuigamala as President followed proper procedure according to the Constitution of S.A.B.A.; 

(iv) The Constitution of S.A.B.A. and if there are inconsistencies so as to cause confusion; 

[8] The Tribunal shall provide directions on: 

(i)  The Constitution of S.A.B.A. and possible changes that make the Constitution clear,
promotes accountability and responsibility.

(ii)  Policies that may foster an environment of honesty, good governance and beneficial
to the development of amateur boxing.

 

The Dispute 

[9] The issues raised by the Applicant are specific to the elections held at the A.G.M. on 10 November 2017. 

[10] The Applicant in his opening statement says that the elections at the A.G.M. of 10 November 2017 by which he was ousted was not in accordance with S.A.B.A.’s Constitution and was therefore unconstitutional. 

[11] The Respondents on the other hand say otherwise that the elections at the A.G.M. of 10 November 2017 was in accordance with the Constitution. That Fesola‟i Vaaiga was only elected as President from the S.G.M. of 19 January 2017 for a period of 12 months. 

[12] The central issue therefore is, whether the elections held at the A.G.M. of 10 November 2017 by which the Applicant, Fesola’i Vaaiga was ousted was in accordance with the registered S.A.B.A. Constitution of 1984. 

[13] To look at the legality of the AGM of 10 November 2017, the Tribunal has had to consider the A.G.M. of 30 October 2016. This is because, it was a resolution from that A.G.M. that lead to the S.G.M. of 19 January 2017 being held and by which the Applicant, Fesola‟i Vaaiga was elected as President. 

 

The General Meetings 

[14] The Applicant, Fesola’i Vaaiga gave evidence. Tupa’i Klaus Stunzner and Lorenzo Fepulea’i were called to give evidence by the Applicant. 

[15] The named Respondents gave evidence and were each given the opportunity to ask questions of the Applicant, and the witnesses he called Tupa’i Klaus and Lorenzo Fepulea’i. 

(a) Annual General Meeting, 30 October 2016
[16] According to Article 17(1) of S.A.B.A. Constitution the A.G.M. must be held no later than 1st November each year as the Executive shall decide. The A.G.M. of 30 October 2016 was held prior to 1st November of that year. The Applicant was present together with nine (9) of fourteen (14) financial members. The required quorum at any A.G.M. is 25% of financial members. There was a quorum. 

[17] At this meeting, the audited financial statement for 2015 was not ready. A Resolution was therefore passed that a Special General Meeting be called on 19 January 2017 for the audited financial statement to be passed. The dispute which arises was whether there was election of officers at this A.G.M. Aualiitia Faafouina who has been a member of S.A.B.A. for nearly 30 years said that AGMs are held every year but the election of officers are only held every three years. According to Aualiitia who was President, elections were due at the A.G.M. of 30 October 2016 as the office bearers three year term was up. 

(b) Special General Meeting, 19 January 2017
[18] At this meeting, the audited financial statement for 2015 was passed and the elections were held. A new Executive was elected with the Applicant, Fesola’i Vaaiga elected as President ousting Aualiitia Faafouina. There was a dispute from this meeting as to a motion put forward by Tupa’i Klaus Stunzer of a 12 month period for the President and his Executive. In the Minutes it says that Tupa’i Klaus after the elections put forward the issue when the floor was open for discussions – “Sa maea loa lea (filifiliga tofi) ona tuuina mai lea o le avanoa e le taitaifono mo nisi finagalo, o lea na faatuina ai loa se lafo e le Susuga ia Tupa’i Klaus Stunzner ina ia lava le 12 masina mo le nofoaiga ua filifilia sei maitaituina ai pe o le a se tulaga o le a oo I ai, sa faaluaina ma pasia ai loa le lafo, e 12 masina e seei ai Vaaiga ma lana pulega ona toe iloilo lea mo leisi suiga i le A.G.M. ia Oketopa ile tausaga lava lenei”. 

 [19] The Applicant and the Respondents have a different understanding of the 12 months motion put forward by Tupa’i Klaus. The Applicant’s understanding was that the 12 months was for him and his Executive to make changes or amendments to the Constitution. The Respondents understanding was that the Applicant’s tenure as President would be limited to 12 months only. 

[20] Tupa’i Klaus was called by the Applicant as a witness and said that the 12 months he put forward was not the “term of office” for the newly elected Executive as he understood the term of office to be for 3 or 5 years but the 12 months was the timeframe for the new Executive to make changes and/or amendments to the Constitution. He thought that the Constitution was unclear and the procedures of SABA were inconsistent with the Constitution. Furthermore, he believed that S.A.B.A. needed to prioritize making changes to its Constitution thus the motion he put forward. 

[21] The Respondents understanding was that the 12 months was the term of office for the Applicant and his Executive. The Respondents confirm their understanding with the Applicant as President endorsed the Agenda which included the elections for the A.G.M. of 10 November 2017. 

[22] The Respondents also say that the elections held during the S.G.M. was unconstitutional because the Applicant was a promoter of professional boxing in breach of Articles 15 and 33 of the Constitution and that the S.G.M. allowed non-financial members to vote breaching Articles 8 and 14 of the Constitution. 

(c) Annual General Meeting, 10 November 2017
[23] According to Article 17(1) of the Constitution the A.G.M. must be held no later than 1st November each year as decided by the Executive. At a monthly Executive Meeting held on 6 October 2017 (at which the Applicant was not present) it was decided that the AGM be held on 10 November 2017 rather than before 1st November. 

[24] The Notice of A.G.M. and Agenda was prepared by the Secretary, Faletolu Su’a and emailed to the Applicant, the President who endorsed it and he then sent it to the Samoa Observer. We noted that the “elections‟ was part of the Agenda for the A.G.M. 

[25] The evidence is that S.A.B.A. hold their A.G.M.’s annually and usually in the month of October each year but the election of officers is every three years. 

 [26] The Respondents were of the understanding that the elections were due at this A.G.M. and the Applicant and his Executive’s term was only for 12 months as agreed upon from the S.G.M. The Applicant at the A.G.M. advised the meeting that legal advice from the S.A.B.A. solicitor, Aumua Ming Leung Wai was needed to clarify the term of office but this fell on deaf ears and the meeting proceeded to holding an election. 

[27] Counsel for the Applicant told the Tribunal in their opening statement that any resolution made at the S.G.M. of 19 January 2017 that the term of office for the office bearers would only be for 12 months was in breach of Article 13. Furthermore, for such resolution to have legal validity, an amendment to the Constitution was required following the procedure in Article 37. 

[28] There was also the issue of the “casting vote”. The Applicant say there was a “tie” and he as President should have had the casting vote according to Article 14. The Respondent say there was no tie and the votes were 6-4 to Papalii Pasi Poloa. 

[29] The Applicant said the A.G.M. was in breach of the Constitution as follows: 

(i)  The meeting or elections only focused on the election of President. There was no election of a Patron or Vice Patron, three (3) Vice Presidents, Secretary, Treasurer,
Auditor, Solicitor and Medical Officer.

(ii)  The elections were held prematurely only 11 months into Fesola’i Vaaiga’s three (3)
year term. (Article 13)

(iii)  The Applicant as President was denied his right as Chairman to have a casting vote
when the voting for the position of President ended up in a tie.

Justice Mata Tuatagaloa. Photo/Samoa Observer
Justice Mata Tuatagaloa. Photo/Samoa Observer

(iv)  The procedure of the office bearers retiring from office before seeking re-election was
not followed.

(v)  The meeting failed to consider the Chairman’s decision that S.A.B.A. solicitor be
consulted first on the construction and interpretation of whether the term of President was for one year or more. (Article 24)

Findings of the Tribunal:
(a) Annual General Meeting, 30 October 2016 

[30] The Tribunal after hearing the Applicant and the Respondents finds as follows: 

(i)  That no elections were held at the A.G.M. of 30 October 2016. The three men that became Vice Presidents from this A.G.M. were not elected but were agreed upon by the members who were present. Two of the Vice Presidents were not even present at the A.G.M. while the other was not even a financial member then.

(ii)  The elections were deferred as the auditing of the financial statement for 2015 has not been completed.

(iii)  A Resolution was passed for a Special General Meeting to be held on 19 January 2017 to present and passed the audited financial statement and to hold elections.

[31] The A.G.M. of 30 October 2016 was constitutional. 

(b) Special General Meeting, 19 January 2017 [32] The Tribunal finds as follows: 

(i)  The 12 months as the “term of office” for the newly elected President and his Executive is inconsistent with Article 13 of the Constitution which says the term of office to be 3 years. There is nothing in the Constitution giving the members at an A.G.M. the discretion to pass such motion on the term of office as they choose.

(ii)  The Applicant, Fesolo’i Vaaiga was a financial member going into the S.G.M. The Applicant is a member of the Plantation Boxing Ring which Ring is amateur and not professional and had also paid its registration/affiliation fee with S.A.B.A. The Applicant had not only paid his boxing ring’s fee with S.A.B.A. but had also paid his subscription.

(iii)  The Applicant was accepted by S.A.B.A. as a member not as a promoter of professional boxing (as they now alleged) but as an amateur through the Plantation Boxing Ring.

[33] The S.G.M. of 19 January 2017 was a resolution of the A.G.M. of 30 October 2016. The elections at the S.G.M. was validly held and in accordance with the Constitution. 

(c) Annual General Meeting, 10 November 2017 [34] The Tribunal finds as follows: 

(i) The 12 months as the “term of office” for the Applicant as President and his Executive is unconstitutional and cannot stand. The term of office in Article 13 of the Constitution is 3 years. There is nothing in the Constitution giving the members at an A.G.M. or S.G.M. the discretion to pass such motion on the term of office as they choose. 

(ii)  If the understanding was for a 12 months term, the election held on 10 November
2017 where the Applicant, Fesola’i Vaaiga was ousted was short of 12 months.

(iii)  The practice of S.A.B.A. at A.G.M. or S.G.M. is that the meeting is chaired by the President but when it gets to the election part of the meeting the President chooses a person to chair the elections. The Constitution simply refers to the “Chairman” but nowhere in the Constitution does it state that the President is to be the Chairman of the elections or the A.G.M. Article 24 says that “the decision of the presiding Chairman on the construction or interpretation of any rule shall be final unless and until the same be over ruled by a general meeting”. In this case Article 14 then is simply that whoever chairs will have the casting vote. The question is, can an office bearer be the Chairman when according to Article 17(1) all office bearers shall retire from office
prior to election?

(iv)  The election did not elect all the office bearers it should be according to Article 12
but only elected the President, two (2) Vice Presidents (instead of three) the Secretary and Treasurer. The positions of Patron, Vice Patrons, solicitor and auditor and medical officer were not elected.

(v)  The election should have been deferred when there was confusion as to the term of office for the President. The views of the S.A.B.A. solicitor as to the Constitution regarding this issue should have been sought and obtained before proceeding to elections.

[35] In summary, the elections held at the A.G.M. of 10 November 2017 was unconstitutional on the following grounds: 

(i)  The term of office is 3 years and not 12 months. The President and Executive elected at S.G.M. of 19 January 2017 have only been in office for almost 10 months.

(ii)  The S.A.B.A. Executive does not have the authority under Article 17(1) of the Constitution to postpone or defer an A.G.M. later than 1st November each year. The Executive according to Article 17(1) can decide on whatever month to have the A.G.M. which month must be prior to 1st November each year.

 

The Constitution 

[36] It was clear to the Tribunal that the S.A.B.A. Executive does not always follow their Constitution. They also do not fully understand their Constitution. They should always defer to their solicitor for clarification whenever there is an issue at the A.G.M. or S.G.M. and not use the “ava fatafata and va fealoa’i” that some of the Respondents refer to in order to justify their decisions made and to resolve any issues. 

[37] The practice of using the culture of “ava fatafata and va fealoa’i” to justify non-compliance with the Constitution is detrimental to the administration to the sport of boxing or for any sport. There is always a time and place for the “ava fatafata and va fealoa’i” but we do not and should not abuse our culture to suit our own agendas and/or to the detriment of the sport. Any friction within a sporting body will always impact on the sport itself especially to the young boxing enthusiasts. 

[38] There are a lot of inconsistencies within the S.A.B.A. Constitution itself. 

[39] It would be difficult to amend one clause without directly impacting on reading a different, but related clause. For instance, the “term of office” as per Article 13 is for three (3) years, however at Article 17 it states that all officers shall retire from office at the end of the meeting. Another issue that neither the Applicant nor the Respondents could answer confidently to was that of a financial member. Different people had a different understanding, some thought that affiliation to a boxing ring made you a financial member, others said that an affiliation was not enough a subscription fee also had to be paid. The issue of who is the Chairman of the A.G.M. is also unclear. These are just some of the few issues and clauses that were raised, repeated and often unclear as to what each meant in the context of the entire Constitution. 

[40] S.A.B.A. by failing to comply with its Constitution and/or neglecting to make the amendments necessary to strengthen and guide the administration of the sport, has failed to honour one of its objectives “To encourage, foster, develop and assist in the advancement of amateur boxing in the country”. 

[41] The Tribunal recommends as follows: 

(i)  The Constitution needs a complete overhaul for clarity and should be a priority of S.A.B.A.

(ii)  That Samoa Amateur Sports and National Olympic Committee (“S.A.S.N.O.C.”) or the Ministry of Education, Sports and Culture (“M.E.S.C.”) have a monitoring role in the administration of sports making sure that they comply with their Constitution and have in place policies as guideline for all sports with the objective of good governance. Good governance is inductive to honesty and will positively impact on any sport.

 

Orders 

[42] Pursuant to section 21 of the Sports Dispute Resolution Act 2008 the Tribunal may make Orders for the purpose of resolving any dispute. The Tribunal is of the view that Orders are necessary for the way forward. 

[43] The Tribunal makes the following Orders with the national interest of Samoa and the sport of boxing of paramount concern (s.5): 

(i)  That the current S.A.B.A. Executive be dissolved.

(ii)  An Interim Executive to be appointed consisting of the following people:

• Papalii Pasi Poloa :

• Fesola‟i Vaaiga Tuigamala :

• President :

• President :

 

•A representative from the Ministry of Education, Sports and Culture (M.E.S.C.).

(iii)  The Interim Executive may appoint any other person(s) including a lawyer to assist them.

(iv)  The Interim Executive to carry out the following functions:
(a) To consider the Constitution whether to make amendments accordingly or
make a new Constitution within 8 weeks;
(b) To call an S.G.M. within 10 weeks and have the Constitution put through to the
members for discussion.

(v)  The Interim Executive to hold an AGM to (a) pass the Constitution and (b) for
election of officers.

Savaii/Upolu Boxing Plantation Boxing Marist Boxing
Tumua ma Pule Boxing.

 

Comments 

[44] It is sad to note that the dispute turned personal and it is evident in the conflicting views that have arisen due to different perspectives with regards to administration. The long standing members have developed an “ownership” mentality over the sport and not giving the “new comers” the opportunity to show what they can do to advance the sport forward. This is, in no way discounting the valuable insight and contribution the long standing members of boxing have done all these years but at some point they need to take an advisory role, take a step back and let new blood come in. 

[45] What is obvious despite the differences alluded to is that the parties to this dispute are all of the same heart, their love of the sport of boxing. 

[46] The parties to the dispute are urged to take positive steps to rectify the current unsatisfactory situation to protect the national and international interest of the sport of amateur boxing. This can only be achieved by the parties working together. The Orders made by the Tribunal are made with this belief. 

 

Justice Mata Keli Tuatagaloa 

(Presiding Member) 

Tuisugaletaua Aveau Sofara 

(Member) 

Rev. Dr Siaosi Salesulu 

(Member) 

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