Lu v Tipale [2010] PGNC 45; N4006 (7 May 2010)

N4006

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 599 OF 2008

BETWEEN

TOM LU
Plaintiff

AND

AUGUSTINE TIPALE
First Defendant

AND

STONEY KUMALO - Deputy Provincial Administrator
Second Defendant

AND

ANTON TIPALE - Assistant Returning Officer - Erave LLG
Third Defendant

AND

PAPUA NEW GUINEA ELECTORAL COMMISSION
Fourth Defendant

Mount Hagen: Makail, J
2010: 31st March & 7th May

INJUNCTIONS - Interlocutory injunctions - Setting aside of - Principles of - National Court Rules - Order 12, rule 8.

ELECTIONS - Local Level Government elections - Election of president - Validity of - Local-level Governments Administration Act, 1997 - Sections 12(1)(b) & 18 - Standing Orders - Rules 1 & 10.

WORDS & PHRASES - Chief executive officer - Meaning of - Standing Orders - Rules 1 & 10.

PRACTICE & PROCEDURE - Application to dismiss proceeding - Grounds of - Failure to disclose reasonable cause of action - Frivolous and vexatious - Abuse of process - National Court Rules - Order 12, rule 40(1)(a)-(c).

Cases cited:

Taza Kembo -v- Kevin Tulara (1997) N1668
David Kuna -v- Vincent Eralia, Presiding Magistrate & The State (2004) N2771

Counsel:

Mr B Lakakit, for Plaintiff
Mr T Dalid, for First Defendant
No appearance, for Second and Third Defendants

INTERLOCUTORY RULING

7th May, 2010

1. MAKAIL, J: The first defendant applies for the dismissal of the proceeding or in the alternative, the setting aside of an ex-parte interim injunction of 23rd October 2009 pursuant to Order 12, rule 40(1)(a)-(c) and Order 12, rule 8 of the National Court Rules respectively. The ex-parte interim injunction obtained by the plaintiff inter-alia restrains him from holding himself out as president elect of Erave Local Level Government. The application arose from a dispute in relation to the validity of the election of the first defendant as president of Erave Local Level Government on 14th August 2008 following the Local Level Government elections. The first defendant was elected unopposed following the plaintiff and seven other members’ abstinence from voting at the meeting when they walked out before the voting took place. The main reason for their abstinence was that, the elections of seven members of the Erave Local Level Government were questionable and required resolution prior to the election of the president. Although the concern was raised with the chairman of the meeting, he declined to entertain it, resulting in the plaintiff and the seven members abstaining from voting.

2. The grounds for the application for dismissal of proceeding are:

1. The plaintiff did not serve the originating process and supporting documents in this proceeding on the defendants;

2. The plaintiff should have commenced an election petition in the District Court to challenge the election of the first defendant as president of Erave Local Level Government and not in the present form. This Court lacked jurisdiction to determine election related issues in relation to Local Level Governments;

3. Proper procedures were followed to elect the first defendant as president in that, there was quorum (half of total 28 members) were present and voted the first defendant as president while the plaintiff and seven members abstained. They cannot now complain about the results of the election as the first defendant was elected unopposed;

4. The election of the first defendant was also disputed in two separate proceedings at Waigani National Court and this proceeding is a duplication of the same dispute; and

5. The judge who granted the ex-parte interim injunction was biased in that, he and the plaintiff are relatives as they are from Simberigi.

3. In relation to the first ground of the application for dismissal, counsel for the first defendant correctly concedes that service of the originating process is no longer an issue between the parties as the first defendant is represented by his firm, namely Jerry Kiwai Lawyers. This means that, the first defendant was not denied his right to be heard. Counsel also concedes that the interim injunction was granted on an urgent basis in the absence of the first defendant. Hence, there was nothing wrong or sinister in the grant of the interim injunction in the first defendant’s absence. Counsel for the plaintiff also correctly re-affirms this position in relation to service of the originating process and supporting court documents. In the circumstances, I accept that non service of the originating process and supporting documents is not a sufficient ground to dismiss the proceeding and I reject it.

4. In relation to the second ground of the application for dismissal of proceeding, it can also be disposed off quickly. The case of Taza Kembo -v- Kevin Tulara (1997) N1668, by Injia, J (as he then was), which counsel for the plaintiff cites in his submission resolves the issue of competency of the proceeding and the jurisdictional issue raised by the first defendant. That case stands for the proposition that under Part XIX, Division 14 (Disputed Elections and Return) of the Organic Law on National and Local-level Government Elections, the procedures set out in Division 14 only relates to election and return of members or councilors by wards of Local Level Governments. It makes no provision for dispute 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. The procedure to challenge the election of presidents should be under ordinary law and civil procedure by commencing proceeding by an originating summons seeking declaratory orders under Order 4, rule 3 of the National Court Rules.

5. That decision was followed by Cannings, J in David Kuna -v- Vincent Eralia, Presiding Magistrate & The State (2004) N2771 in an application for judicial review challenging the decision of the District Court which nullified the election of the plaintiff as president of Kagua Local Level Government. His Honour held that the District Court exceeded its jurisdiction when it declared the election of the plaintiff void because the elections of presidents of Local Level Governments were distinct from elections of ordinary members or councilors. The distinction was, ordinary members or councilors of whom the president was one were elected by the people and where there were disputes in relation to the results of the election, the District Court had jurisdiction to deal with the dispute by way of an election petition. In the case of an election of presidents, they were not elected by the people but by the elected members or councilors and as such, it could not be treated as election disputes.

6. In my view, those two Court decisions sum up the position in law in relation to the mode of commencing proceedings to dispute elections of president of Local Level Governments and need no further elaboration. They also settle the jurisdictional issue, that being, the National Court has jurisdiction to determine such disputes. In the present case, I consider that the plaintiff has correctly commenced this proceeding to dispute the election of the first defendant as president of Erave Local Level Government. The proceeding is competent and this Court, therefore, has the jurisdiction to determine the validity of the election of the first defendant as president. This ground of the first defendant’s application is misconceived and is dismissed.

7. I turn to the third ground of the application to dismiss the proceeding. This ground raises the issue of whether the proceeding discloses a reasonable cause of action. The proceeding appears to question the election of the first defendant as president of Erave Local Level Government. There are two competing arguments in relation to whether the person who chaired the meeting that resulted in the election of the first defendant as president was authorized to conduct (chair) the meeting. This person was identified as the second defendant, who happens to be the Deputy Provincial Administrator of the Southern Highlands Province. It was argued that the District Administrator of Erave District is the authorized officer to conduct (chair) the meeting and reference was made to sections 12 and 18 of the Local-level Governments Administration Act, 1997. Section 12 provided for the election of president of a Local Level Government and section 18 provided for the promulgation of standing orders for the calling and conduct of meetings by Local Level Governments. It was argued that by virtue of the standing orders, the District Administrator is the authorized officer to call and conduct the meetings to elect the president.

8. Counsel for the first defendant concedes that the second defendant chaired the meeting but went on to argue that as the second defendant is the Deputy Administrator of the province, he has the overriding authority to chair the meeting to ensure that the election is conducted properly. He further argues that, there was quorum, that is, half of the total 28 members were present and voted in favour of the first defendant as president while the plaintiff and seven members abstained. They cannot now complain about the results of the election as the first defendant was elected unopposed.

9. Section 12(1)(b) provides for the election of a president of a Local Level Government from amongst the elected members of the Local Level Government. The procedure for conducting the election shall be in accordance with the standing orders. Section 18 authorizes a Local Level Government to make standing orders. In this case, the Erave Local Level Government may make standing orders in relation to the conduct of meetings for the election of a president. A copy of a standing order of Erave Local Level Government was produced to the Court and no objection was raised in relation to its existence and validity, hence I take it on face value that it is the standing order of Erave Local Level Government. From my reading of it, it is noted that rule 10(1) of the standing order is pertinent and states:

"(1) The Local-level Government shall then elect one of its Councilors to be the head of the Local-level Government, and the chief executive officer shall act as the chairman for the purposes of the election.

(2) .............................

(3) ............................." (Emphasis added).

According to rule 1 of the standing orders (Interpretation), "chief executive officer" means either "(a) the District Administrator appointed under section 73 of the Organic Law, or (b) a person or officer appointed by the District Administrator to perform duties as chief executive officer under these Standing Orders in relation to the Local-level Government."

10. To my mind, according to the definition of chief executive officer in rule 1, a chief executive officer may be a District Administrator or a person or officer appointed by the District Administrator to act as chief executive officer. In other words, reading rules 1 and 10(1) together, a District Administrator or his delegate may chair the meeting called to elect the president of the Local Level Government. In the present case, it is apparently clear that neither the second defendant as the Deputy Provincial Administrator of the province is a chief executive officer nor is there evidence of an instrument of appointment or delegation of authority to him by the District Administrator to act as chief executive officer for the purpose of calling and chairing the meeting for the election of the president on 14th August 2008. And I do not believe that the argument in relation to the quorum is an issue between the parties because the plaintiff is not taking issue with that. That being the case, I am satisfied that the plaintiff has demonstrated that, there is a serious issue raised in this proceeding which warrants proper determination at the substantive trial. This means, this proceeding discloses a reasonable cause of action and must remain.

11. The fourth ground of dismissal is that, the present proceeding is a duplication of two previous existing proceedings. It is frivolous, vexatious and an abuse of process. For this ground, it is noted that there is, first, proceeding in OS No 797 of 2009 which was commended by the first defendant at Waigani National Court on 17th December 2009. In that proceeding, the first defendant was the plaintiff and sought orders to declare him as the duly elected president of Erave Local Level Government. This proceeding was dismissed by the National Court on 05th February 2010. The second proceeding is OS No 484 of 2008 which was also commenced at Waigani National Court on 22nd August 2008. It is noted, in that proceeding, the first defendant was the plaintiff and sought orders, inter-alia, to declare the appointments of the first defendants as members of Erave Local Level Government Special Purpose Authority void. It is further noted, apparently, on 18th December 2009, the National Court ordered inter-alia that "this proceeding and OS 599/09 (sic) Mt Hagen proceeding are consolidated and are to be dealt with together."

12. In this respect the order of the National Court at Waigani by Kandakasi, J of 18th December 2009 in OS No 484 of 2008 between the first defendant and Paul Pawa & Ors for the consolidation of proceedings may be found in the endorsement of the Court file marked as annexure "C" to the affidavit in reply of the plaintiff sworn on 16th March 2010 and filed on 18th March 2010. None of the counsel had brought this order to my attention during the hearing of the application and I hope that this was not a deliberate act on their part to advance their respective clients’ cases at the expense of each other. If such conduct is repeated in future and found to be deliberate, I will not hesitate to deal with counsel accordingly. The relevance and importance of the order of 18th December 2009 is that, this proceeding was consolidated with OS No 484 of 2008 proceeding and should have been dealt with together. Unfortunately, the parties whether deliberately or by default have not taken heed of the order and have proceeded separately. As a result, I am being led to decide this case without the benefit of the other proceeding. Following this ruling, I urge counsel for both parties to consider bringing an application for transfer of the proceeding to either Waigani or vise versa so that both proceedings may be dealt with together. As the proceedings were consolidated, I am not satisfied that the duplication of the proceedings is a sufficient ground to dismiss the present proceeding.

13. The final ground of the application to dismiss the proceeding is based on an allegation of bias against the judge who granted the ex-parte interim injunction. The allegation is that, the judge and the plaintiff are relatives as they hail from Simberigi. I dismiss this ground as it lacks merit, is spurious and purely speculative. It is made without any evidentiary foundation. I consider that an allegation of bias against a judge is no light matter as it not only questions the impartiality of the judge but also questions the integrity and reputation of the judge. To my mind, it is no trivial matter for anyone to raise bias against a judge and have no evidence to back it up. The present case is a classic example of baseless attacks on members of the judiciary because it is alleged that the judge and the plaintiff are said to be relatives and yet there is no evidence to establish how the judge is related to the plaintiff and how the judge was influenced to rule in favour of the plaintiff. I dismiss this ground.

14. I turn to the alternative application, which is the application to set aside the ex-parte interim injunction. It is not in doubt that the National Court has power to set aside its orders in Order 12, rule 8 of the National Court Rules. In respect of setting aside of interim injunctions, the principles are clear. An applicant must establish to the satisfaction of the Court that there are no serious issues to be tried in the proceeding, secondly, the balance of convenience do not favour the continuation of the interim injunction and finally, that damages is an adequate alternative remedy.

15. Turning to the present case, counsel for the first defendant contends that the ex-parte interim injunction should be set aside because first, there are no serious issues raised in the proceeding. He contends that the plaintiff had abstained from voting the president at the meeting of 14th August 2008. By abstaining, he has exercised his right accordingly and cannot hack back and complain about the results of the election before the Court. Secondly, there was bias on the part of the judge who granted the ex-parte interim injunction as he is from Simberigi and is a relative of the plaintiff. In relation to the second consideration, that is the balance of convenience, the counsel argues that the balance of convenience does not favour the continuation of the ex-parte interim injunction because the first, it restrains the first defendant as the president elect from holding office and performing duties as the president. Secondly and very importantly, it restrains the first defendant from sitting as a member and Chairman on the Erave Local Level Government Special Purpose Authority where decisions are being made in relation to allocation and disbursement of funds for provision of goods and services to the people of Erave District.

16. I have found above that there is a serious question raised in relation to the appointment of the second defendant as chairman of the meeting that resulted in the election of the first defendant as president on 14th August 2008, and I have also found that the argument that the abstinence of the plaintiff and seven members is neither an issue nor a sufficient ground to set aside the ex-parte interim injunction. Further, I have rejected the argument in relation to the question of bias against the judge who initially granted the ex-parte interim injunction. This leaves nothing before me to persuade me to find in favour of the first defendant.

In relation to the balance of convenience, there is some evidence in the Brief Meeting Minutes of Erave Local Level Government of 25th October 2009 which may be found at annexure "C" to the affidavit of the first defendant sworn on 26th January 2010 and filed on 27th January 2010 that the plaintiff is the acting president pending the determination of the substantive proceeding although it is noted, there is no express order to that effect in existence. There is also no evidence from the first defendant clearly stating if he (the first defendant) is still performing functions and duties of president. For example, there is no evidence of the first defendant chairing meetings of Erave Local Level Government subsequent to the grant of the ex-parte interim injunction on 23rd October 2009. He only complains of the plaintiff trying to stop him from negotiating with the Department of Petroleum and Energy and Department of National Planning and Monitoring for outstanding MOA funds to be paid to the Erave Local Level Government Special Purpose Authority. In the absence of such evidence from the first defendant, I must accept the evidence of the plaintiff that he (the plaintiff) was and is the president on an interim basis to date.

17. This means, in order to avoid any further inconvenience and more so, confusion amongst the members and ultimately the people of Erave District and maintain stability and continuity in the leadership of the Local Level Government, the status quo must not be disturbed until the determination of the substantive proceeding. The plaintiff must be allowed to perform the functions and duties of president until the dispute is finally resolved. As to the question of damages, neither the plaintiff nor the first defendant gave evidence or made submissions on it. That being the case, I will not consider it. In any case, the centre of the dispute is in relation to who gets the top post and damages is considered insignificant at this stage as far as parties are concern. Hence, I make no further comments. For the foregoing reasons, I am not satisfied that the first defendant has made out a case where the Court should exercise its discretion in his favour and set aside the ex-parte interim injunction.

18. In the end, I refuse the first defendant’s application by his notice of motion filed on 27th January 2010 and further order that the ex-parte interim injunction of 23rd October 2009 is extended until the determination of the substantive proceeding. The first defendant shall also pay the costs of the application to be taxed if not agreed.

Ruling accordingly.

____________________________________
Michael Thoke Lawyers: Lawyers for the Plaintiff
Jerry Kiwai Lawyers: Lawyers for the First Defendant