N4018

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 147 OF 2010

BETWEEN

COUNCILOR REX KUNE
Plaintiff

AND

COUNCILOR MICHAEL KAPAK
First Defendant

AND

MR GOKUMI KIMEN
District Administrator for South Waghi District
Second Defendant

AND

MR BENNY LAKI
Principal Advisor for Provincial & Local Level Government Affairs - WHP
Third Defendant

AND

MR MALCOLM CULLIGAN, OBE
Provincial Administrator- Dept of Western Highlands
Fourth Defendant

AND

MR MANASUPE ZURENUOC, OBE
The Secretary for Department of Provincial & Local Level Government Affairs
Fifth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Minj: Makail, J
2010: 15th & 20th April

INJUNCTIONS - Interlocutory injunctions - Equitable relief - Prohibitory injunctions - Mandatory injunctions - Grant of - Principles of

ELECTIONS - Local Level Government elections - Election of president - Validity of - Dispute of - Motion of no confidence - Sufficiency of votes - Two thirds absolute majority - Local-level Governments Administration Act, 1997 - Section 12(3)(c).

PRACTICE & PROCEDURE - Pleading of reliefs - Failure of - Effect of - Request to amend by seeking additional reliefs - Grounds of - National Court Rules - Order 12, rule 1 - Order 8, rule 50. 

Cases cited:

Thaddeus Kambanei -v- The National Executive Council & 5 Ors (2006) N3064
Yama Group of Companies Ltd -v- PNG Power Ltd (2005) N2831
Paul Marika -v- Clement Silari (2004) N2729
Hagai Joshua & Gimson Sauno -v- Eron Meya & Ors [1988-89] PNGLR 188

Counsel:

Mr R Otto, for Plaintiff
Mr P Pagne, for First, Second & Third Defendants
No appearance, for Fourth, Fifth & Sixth Defendants

INTERLOCUTORY RULING

20th April, 2010

1. MAKAIL, J: In this interlocutory ruling, the plaintiff is an elected council member of Ngunba Tsens council ward in South Waghi Local Level Government and seeks by notice of motion filed on 06th April 2010, inter-alia, an interlocutory injunction to restrain the first defendant from holding himself out as president of South Waghi Local Level Government, the second, third, fourth, fifth and sixth defendants from recognizing the first defendant as president of South Waghi Local Level Government and a mandatory injunction compelling the defendants to allow him to carry out his duties and functions as president of South Waghi Local Level Government.

2. The interlocutory application arose from a dispute in relation to the validity of the election of the plaintiff as president of South Waghi Local Level Government. From the affidavit of the plaintiff sworn and filed on 06th April 2010, affidavit of Maria Gele sworn and filed on 6th April 2010, affidavit of Peter Hai sworn and filed on 6th April 2010, a further affidavit of the plaintiff sworn and filed on 14th April 2010, and affidavit in reply of the second defendant sworn and filed on 12th April 2010, much of the facts surrounding the election of the plaintiff as president are not in dispute. 

3. There are a total of 45 council members of the South Waghi Local Level Government. The election of the councilor for Kudjip Hospital ward was declared a failure following the Local-level Government elections in 2008, hence no councilor was elected to represent that ward on the South Waghi Local Level Government assembly at this point in time. This left only 44 sitting councilors on the South Waghi Local Level Government assembly. Also, following the Local-level Government elections in 2008, the first defendant was elected by the council members as president of South Waghi Local Level Government.

4. After the 18 months grace period lapsed on 18th August 2009, the plaintiff gave notice to call a meeting to move a motion of no confidence against the first defendant as president. According to the notice dated 2nd February 2010, a number of reasons were put forward as grounds for the motion of no confidence in the first defendant as president. One of them was that, the first defendant "abused his tenure by squandering public funds and has miserably failed to administer the prescribed duties of this LLG according to law." An example of a case of abuse of public funds was that, the first and second quarter grants allocation to South Waghi Local Level Government in June 2009 were not expended according to its 2009 budget. It was alleged that these funds were paid by the first defendant to settle his debts incurred during the period of the election of president. As a result, there are no funds to pay Peace Committees allowances, ancillary staff wages and implementation of identified projects in the District.

5. On 23rd March 2010, 43 councilors of South Waghi Local Level Government including the plaintiff and the first defendant convened a meeting at the South Waghi Local Level Government Chambers in Minj town. Also present were the second, third and fourth defendants. This meeting was convened to debate the motion of no confidence in the first defendant as president. The meeting was chaired by the second defendant while the third and fourth defendants attended to oversee and ensure that the meeting proceeded smoothly. The first defendant was nominated again to contest the presidency post and the plaintiff was nominated as an alternate candidate for president and votes were taken. The votes were taken by secret ballot and after they were taken, the results were counted. The results were:

1. One councilor (Councilor Robert Mun) abstained from voting;

2. The first defendant scored 15 votes; and

3. The plaintiff scored 28 votes.

6. As the plaintiff scored the highest vote, the fourth defendant declared him as new president. On the next day, the 24th March 2010, the fourth defendant wrote to the fifth defendant to seek clarification in relation to the election of the plaintiff, in particular on the issue of two thirds absolute majority rule. On 25th March 2010, the fifth defendant replied to the fourth defendant advising that in a case of a vote of no confidence in a president of a Local Level Government, the two thirds absolute majority rule is counted from the total number of seats in a Local Level Government. In this case, as South Waghi Local Level Government has 44 sitting councilors, two thirds absolute majority of 44 is 29 or more. Based on that advice, the second defendant wrote to the plaintiff advising him that his election as president on 23rd March 2010 was void because the results had not met the two thirds absolute majority rule. As a result, the first defendant remained president and continued to perform his duties and functions as president. This led to the plaintiff commencing this proceeding on 6th April 2010 to assert his claim as president elect.

7. I have heard submissions from counsel representing the plaintiff and counsel for the first, second and third defendants in relation to the application for interim orders. I have not heard any from the fourth, fifth and sixth defendants although it is noted that they had been respectively served the court process on 09th April 2010. In essence, the plaintiff seeks an interlocutory prohibitory injunction and a mandatory injunction. An interlocutory injunction is an equitable relief. It is granted at the discretion of the Court. The Court's power to grant injunctions, interlocutory or permanent is derived from the principles of common law and equity as applied in England prior to Papua New Guinea's independence on 16th September 1975 and adopted as part of the Underlying law: see schedule 2.2 of the Constitution.

8. The principles applicable for grant of injunctions are settled in this jurisdiction. An applicant must first, satisfy the Court that there are serious issues raised in the proceeding. Secondly, that, the balance of convenience favour the grant of the injunction and finally, that damages would not be an adequate remedy. In respect of mandatory injunctions, an applicant must show that there is a strong case or real prospect of success at trial in relation to the issue or issues raised in the proceeding and that, there will be less damage or less injustice to the defendant in the event that the applicant is unsuccessful at trial. As to the question of damage or injustice to the defendant, the Court would normally refuse the relief unless it is shown that the prejudice and hardship to the applicant is disproportionate to the prejudice and hardship to be caused to the defendant in performing the order.

9. In Thaddeus Kambanei -v- The National Executive Council & 5 Ors (2006) N3064, Injia, DCJ (as he then was) quoted with approval the principles listed by Lay, J in Yama Group of Companies Ltd -v- PNG Power Ltd (2005) N2831 following his comprehensive consideration of the English, Australian and Papua New Guinean authorities as follows: 

"A mandatory injunction should normally only be granted where a strong case that serious damage will occur to the applicant is made out.

The general principles for negative injunctions apply, that is that there is a serious case to be tried, damages are not an adequate remedy and the balance of convenience favours the applicant, but the case should normally be one giving an unusually strong and clear view that the applicant will be successful at trial.

The more likely it appears that the plaintiff will succeed at trial the less reluctant the court will be to interfere on an interim basis.

But if it is necessary to make some interim order the Court will do so whether or not the high standard of probability of success is made out.

The costs to the defendant of performing the mandatory acts should be weighed against the likely damage to the applicant.

If the relief sought is such as would normally only be granted after a trial, it should be refused on an interim application unless the prejudice or hardship to the applicant is disproportionate to the prejudice and hardship to be caused to the defendant in performing the order.

If the mandatory injunction is simply to restore some activity which has been previously performed by the defendant, rather than to embark upon some new activity, it will be more readily granted.

Ultimately, in deciding whether or not to grant a mandatory injunction the overriding consideration is an exercise in deciding which course will do the least damage, or, to put it another way, the lower risk of injustice, if it turns out that the court has made the "wrong" decision.

If an injunction is granted the order should specify exactly what it is the defendant has to do, leaving the defendant in no doubt as to what is required to comply with the order."

10. In relation to prohibitory injunctions, the first principle to consider is whether there are serious issues raised in this proceeding. For this, it is the plaintiff's contention that there is a serious issue raised in relation to the two thirds absolute majority rule under section 12(3)(c) of the Local-level Governments Administration Act, 1997. It contends that, as section 12(3)(c) of the Local-level Governments Administration Act, 1997, is silent on the determination of the two thirds absolute majority rule, it should be calculated on the number of councilors present at the meeting called for the motion of no confidence in the president. In this case, there were 43 councilors present at the meeting of 23rd March 2010 and voted. Two thirds absolute majority of 43 is 28. Out of 43 councilors, the plaintiff scored 28 votes. He should have been declared and was in fact declared president by the fourth defendant. 

11. He further contends that, the case of Paul Marika -v- Clement Silari (2004) N2729 which held that the two thirds absolute majority under section 12(3)(c) of the Local-level Governments Administration Act, 1997 is calculated on the total number of councilors in a Local Level Government at the meeting for the motion of no confidence of a president is wrong, and that, this Court should not follow it. As that decision was made by a National Court, it is not binding on this Court and this Court may depart from it. It is wrong because the Court relied on sch 1.2 of the Constitution to define two thirds absolute majority when sch 1.2 has no application to Local Level Governments. It only applies to National Parliament.

12. The first, second and third defendants contend otherwise. They contend that the two thirds absolute majority rule has been decided by the Court in Paul Marika's case (supra) which followed an earlier decision in the case of Hagai Joshua & Gimson Sauno -v- Eron Meya & Ors [1988-89] PNGLR 188, where it was held that, the two thirds absolute majority is calculated based on sch 1.2 of the Constitution. When it is interpreted in the context of sch 1.2 of the Constitution, the two thirds absolute majority in section 12(3)(c) of the Local-level Governments Administration Act, 1997 means that, two thirds of the total number of councilors in a Local Level Government. In this case, as there are 45 councilors, two thirds absolute majority is 29. This means that the plaintiff has failed to muster two thirds absolute majority to unseat the first defendant as president. On this basis, they content that the issue is frivolous and vexatious and the Court should reject it.

13. When I consider both sides' arguments, I am satisfied that there is a serious issue raised in this proceeding. It is in relation to the two thirds absolute majority rule in a motion of no confidence in a president of a Local Level Government. I consider that it is arguable either way that two thirds absolute majority could mean what either side is contending. Both contentions are valid. This may be seen from the wording of section 12(3)(c) of the Local-level Governments Administration Act, 1997 which reads:

"The head of a Local-level Government elected under Subsection (1)(b) vacates office where -

(a) ………

(b) ……….

(c) he is dismissed from office if the Local-level Government, by two thirds absolute majority (including the appointed members), pass a motion of no confidence in him in accordance with this section."

14. And also sch 1.2 of the Constitution, which reads:

"In this Constitution or an Organic Law -

'absolute majority vote' in relation to proceedings in the Parliament, means -

(a) if qualified by reference to a certain fraction or percentage, affirmative votes equal to not less than that fraction or percentage of the total number of seats in the Parliament; or

(b) if not so qualified, affirmative votes equal to more than one half of the total number of those seats;"

15. Given the two competing interpretations in relation to the two thirds absolute majority in the above provisions, I consider that it is not for me to decide whose contention is correct in law now. All I am required to decide is whether there is a serious issue raised in this proceeding and I am satisfied that there is one. As I said, it is in relation to the two thirds absolute majority rule under section 12(3)(c) of the Local-level Governments Administration Act, 1997.

16. If the principle of a serious case is the only consideration for the grant of interlocutory prohibitory injunctions, I would have no hesitation to grant it now. However, there are at least two more important considerations to consider as well. The second is the balance of convenience. Does the balance of convenience favour the grant of an interlocutory prohibitory injunction? This requires the Court to look at the inconvenience, hardship and prejudice the injunction would cause if it is granted. As the plaintiff is applying for an interlocutory prohibitory injunction, the onus is on him to show that there is no or will not be any inconvenience, hardship and prejudice caused to the defendants, in particular, the first defendant if it is granted. 

17. In relation to this issue, it is noted that there is no evidence before the Court from the plaintiff that the defendants will not be inconvenienced, prejudiced or suffer hardship should an interlocutory prohibitory injunction is granted. He has simply not put evidence to demonstrate how the defendants, in particular, the first defendant will not be inconvenienced or prejudiced if the Court restrains the first from being the president. This means, I do not know if the proposed orders will not cause inconvenience, prejudice and hardship to the first defendant, and I do not agree that I should assume or speculate for that matter, that the first defendant will not be inconvenienced, prejudiced or suffer any hardship if he is restrained as suggested by counsel for the plaintiff in submissions.

18. On the other hand, as noted above, following the motion of no confidence on 23rd March 2010 and subsequent clarification of the two thirds absolute majority rule by the fifth defendant, the first defendant has remained in office. This means that he continues to lead South Waghi Local Level Government as its head. I am of the view that, if an interlocutory prohibitory injunction is granted to restrain him from carrying out his duties and functions as president, he would be inconvenienced and prejudiced because first, he would have to vacate the office to allow the plaintiff to take over. This will require time and money to see the hand over/take over. Secondly, it may result in the rearrangement of Local Level Government's policies and goals by the new president. Such would impact on or run counter to the previous president's policies and goals. In my view, it is the first defendant and more importantly, the ordinary people who will be inconvenienced, prejudiced or suffer injustice when there is a constant change of leadership in the Local Level Government.

19. And I do not believe that allegations of misuse of funds of the Local Level Government by the first defendant is sufficient reason to restrain the first defendant from performing his duties and functions as president during the intervening period. Whilst I consider the allegations against him grave and serious, as he is the head of a Local Level Government where he is entrusted with the duty to manage and control public funds and disburse them in accordance with the budget of the Local Level Government so that services are delivered to the ordinary people in his district, they remain mere allegations and I will treat them so, until such time where proper investigations by appropriate authorities reveal otherwise.

20. For these reasons, I am not satisfied that the balance of convenience favour the grant of an interlocutory prohibitory injunction.

21. The final consideration is damages. Would damages be an adequate remedy for the plaintiff? I have not received submissions from counsel for either party on this issue. Nonetheless, it is my view that it will not be considered for the simple reason that there is no evidence from the plaintiff that he has suffered loss and damages whilst the first defendant is in office as president. In my view, the centre of dispute is in relation to who gets the top post and that is the issue between the plaintiff and the first defendant at the moment. Hence, I make no further comments in relation to the question of damages.

22. As the plaintiff seeks a mandatory injunction to compel the defendants, in particular the second, third, fourth, fifth and sixth defendants to recognize him as president elect of South Waghi Local Level Government, he must also meet the tests for grant of mandatory injunctions which I have set out above. Has he met the tests?

23. The first test is whether he has established a strong case or that there is real prospect of success at the trial. As I observed above in relation to the issue of serious case to be tried, it is arguable either way that the two thirds absolute majority rule in section 12(3)(c) of the Local-level Governments Administration Act, 1997 could mean what either party is contending. In my view, this presents a case where I am not satisfied or convinced that the plaintiff has a strong case that will be successful at trial.

24. As to the second test, that is the prejudice and in justice that will occur if a mandatory injunction is granted, as I observed above in relation to the balance of convenience test, I consider that there will be more injustice than good if I grant the mandatory injunction to compel the defendants to recognize the plaintiff as president elect while the dispute as to the validity of his election is being questioned. In my view, the constant changes to the head of the Local Level Government would not be in the best interest of the people. It would prejudice the smooth flow of business of the Local Level Government in terms of stability and continuity. I am, therefore, not persuaded that there will not be injustice caused to the defendants if a mandatory injunction is granted to compel them to give effect to the motion of no confidence results of 23rd March 2010 and recognize the plaintiff as president elect.

25. The final reason for me to decline a grant of a mandatory injunction is that, the plaintiff did not seek an additional order in the notice of motion to compel the first defendant to vacate the office of the president. Since it is not disputed that the first defendant continues to hold office as president, I consider that the plaintiff must also seek a specific order to compel the first defendant to vacate the office. As the present state of pleadings reveal, there is no relief of that nature being pleaded and sought in the notice of motion. This is a fatal defect because it goes to the substance of the dispute. 

26. The plaintiff sought to overcome this defect by citing Order 12, rule 1 and Order 8, rule 50 of the National Court Rules to seek the Court's indulgence to amend the notice of motion by adding a further order in the nature of a mandatory injunction to compel the first defendant to vacate the office of president. The reasons advanced for the omission are, first, it was an oversight on the part of counsel and secondly, the propose amendment is proper and necessary to resolve the issues between the parties to the dispute. 

27. It is accepted that the Court has discretion under Order 8, rule 50 of the National Court Rules to grant amendments to pleadings. It may do so at any stage of the proceeding either before or after pleadings are closed. The Court has in the past held that for an exercise of discretion, it must be satisfied that first, there is a reasonable explanation for the default, secondly, the application must be filed promptly, thirdly, the proposed amendment is meritorious and finally, the opposing party will not be prejudiced by the amendment.

28. In the present case, the action is commenced by Originating Summons. The plaintiff seeks to amend the notice of motion to add a further relief which should have been sought but had not been. First, I consider that the reason advanced for default is unsatisfactory and in excusable. It was upon the plaintiff and his counsel to consider all aspects of the case before running to Court. And I do not believe that because it was a matter of urgent importance that such an order was overlooked. On the contrary, if it was a matter of urgent importance, great care and time should have been devoted to preparing the case than a "rushed job" so to speak. If great care and time had been spent on the preparation of the case, this important relief would not have been overlooked. I reject the explanation offered by the plaintiff for the default.

29. In respect of the time in which the application for amendment is being sought, it is clear that it was sought during the hearing of the interlocutory application. To my mind, it was a belated application, and more so, a reaction to the Court's alertness and raising of the omission during the hearing. This consideration is against the plaintiff. In relation to the merit of the proposed amendment, I accept that it has merits as it seeks to add a further order in the nature of a mandatory injunction to compel the first defendant to vacate the office of the president. But it must be weighed against the other considerations mentioned above. Finally, as to the consideration of prejudice, I am satisfied that the proposed amendment has come as a surprise to the defendants as they have not been given prior notice of it and that if it is granted, and the Court considers it, such an order would not be granted because of the injustice it would pose to the defendants.

30. For the foregoing reasons, I am not persuaded that the plaintiff has made out a case for the application to amend the notice of motion, and it is declined. Having decided against the application for amendment, it leads me to conclude that, the plaintiff has not persuaded me to change the status quo of the present situation and I also decline his application for interlocutory injunction. This means, the first defendant shall remain as president until the substantive proceeding is determined on a date to be fixed or an amicable solution is reached between the parties. 

Ruling accordingly.

____________________________________
Paul Mawa Lawyers: Lawyers for the Plaintiff
Palme Pagne Lawyers: Lawyers for the 1st, 2nd, 3rd Defendants