Kembo v Tulara [1997] PGNC 161; N1668 (15 December 1997)

Unreported National Court Decisions

N1668

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 561 OF 1997
BETWEEN: TAZA KEMBO
PLAINTIFF
AND: KEVIN TULARA
DEFENDANT

Mount Hagen

Injia J
15 December 1997

ELECTIONS - Election of Local Government Council President by Local Government Council - Disputed election - Proper procedure for challenging election – Exclusive Jurisdiction of National Court under ordinary civil procedure – Organic Law on Provincial and Local Level Government S. 29, Organic Law on National and Local-Level Government Elections. Part XIX, Div. 14; National Court Rules, O4r3.

Counsel

Mr. Peri for the Plaintiff

No appearance for the Defendant

15 December 1997

INJIA J: In election petition No. EP 534/97 filed at the District court at Mendi on 06/11/97, the defendant in this present matter disputed the validity of the election of the plaintiff as the member for Tapi-Tapi ward in the Hulia Local Government area. In the same petition, the defendant disputed the election of the Plaintiff as the President of the Hulia Local Government Council in it’s assembly meeting held on 20th October 1997. On 06/11/97, the defendant’s lawyer obtained an exparte interim order from the District Court at Port Moresby, which restrained the Plaintiff from participating in the Southern Highlands Provincial Assembly meeting to elect the Deputy Governor and restrained the Provincial Assembly Clerk of Southern Highlands Provincial Assembly from taking steps to swear in the plaintiff until the election petition EP 534/97 was heard and determined. The swearing in ceremony is scheduled for tomorrow, the 16th of December 1997. The plaintiff is now seeking orders to set aside that interim order and allow himself to be sworn in tomorrow. Due to the urgency of this application, I dispensed with the requirements for service of the notice of motion on the defendant and dealt with the matter exparte. After hearing Mr. Peri for the plaintiff, I granted the orders sought and indicated I would publish my full reasons later, which I now do.

I granted the orders sought for two (2) main reasons. First, assuming the mode of disputing the election of the plaintiff was proper, the restraining order was inappropriate because if the defendant were to be successful in his election petition, then the election would be declared void. Therefore, removing the restraining orders would not deprive the defendant of a remedy altogether. To allow the restraining orders to remain indefinitely would leave a vacuum in the Provincial and Local - Level Government system whereby the people of the Hulia Local Government area would have no representation in the Southern Highlands Provincial Assembly during the period the election petition is in the process of being heard and determined. The balance of convenience favours the removal of the exparte interim injunction.

Secondly, election petition No. EP 534/97 filed in the District Court at Mendi only insofar as it disputes the election of the plaintiff as the President of Hulia Local Government Council, is misconceived. Under Part XIX, Division 14 (Disputed Elections and Return) of the Organic Law on National and Local-Level Government Elections, the procedure set out in this Division only relates to the election and return of members or Councillors by wards of Local Level Governments. It makes no provision for disputes over election of Presidents of Local-Level Governments by members of the Local Level Government Assembly, to be challenged by election petition to be filed and heard in the District Court in that area. Therefore, such elections should be challenged under the ordinary law and civil procedure. The procedure for appointment and removal of Presidents of Local-Level Government is governed by the Organic Law on National and Local-Level Government: see S. 29. If there is any breach of the procedure prescribed by this law for election of the President, then the matter should be taken up in the National Court by the aggrieved person under the National Court Rules: Proceedings should be more appropriately commenced by Originating Summons seeking declaratory orders: see National Court Rules O4r3. As the restraining orders are primarily aimed at restraining the plaintiff from assuming his responsibilities as the President of Hulia Local Government Council, I think the restraining order issued by the Port Moresby District Court pursuant to EP No. 354/97 has no proper basis in law and should be set aside.

Lawyer for the Plaintiff: Warner Shand

Lawyer for the Defendant: Leslie Kari