Nondi v Kunukunu [2012] PGNC 13; N4623 (4 April 2012)

N4623

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 40 OF 2012

BETWEEN

WAMBI NONDI,
PRESIDENT ELECT OF SOUTH WIRU LOCAL-LEVEL GOVERNMENT
Plaintiff

AND

JOSEPH KUNUKUNU
First Defendant

AND

KAPA DILINI
Second Defendant

AND

JOE PERE TILINI (TIKILI)
Third Defendant

Mount Hagen: Makail, J
2012: 28th March & 04th April

ELECTIONS - Local-level Government elections - Election of president - Court ordered re-election of president - Whether re-election of president need to be held at inaugural meeting or ordinary meeting - Inaugural meeting - Meaning of - Purpose of - Organic Law on Provincial Governments and Local-level Governments - Section 29 - Local-level Governments Administration Act, 1997 - Sections 12 & 18 - Standing Orders 8, 9 & 10.

Facts

On 12th January 2012, the National Court found that there was a Standing Order for South Wiru Local-level Government and based on it, declined to declare the plaintiff Mr Wambi Nondi or the first defendant Mr Joseph Kunukunu as president of South Wiru Local-level Government and ordered a re-election of president on a date, time and place to be fixed and in accordance with the Local-level Governments Administration Act, 1997 and the Standing Orders. Instead of parties convening one meeting to elect the president, they held two separate meetings. In one meeting, the third defendant in his capacity as acting president called and presided over it. From it, the plaintiff was re-elected as president. In the other meeting, the District Administrator called and presided over it. From it, the plaintiff was re-elected as president.

The plaintiff contended as the National Court had declared the first election of the first defendant void and ordered a re-election of president in accordance with the Local-level Governments Administration Act, 1997 and the Standing Orders, there must be another "inaugural meeting" presided over by the District Administrator in his capacity as the chief executive officer of the Local-level Government for the purpose of electing the president. The defendants contended otherwise, arguing the re-election of president need not be held at an "inaugural meeting" but at an "ordinary meeting" of the Local-level Government.

Held:

1. An inaugural meeting is held following General Elections and is purposely held to enable the elected councilors to assemble in the chamber at the appointed time, each councilor to be sworn in or make an affirmation before a judge, magistrate or Commissioner of Oaths and more importantly, to elect a head (president) of a Local-level Government: see Standing Orders 8, 9 & 10.

2. As the Court had declined to declare the plaintiff or the first defendant as president in the earlier proceedings and ordered a re-election of president on a date and time to be fixed and in accordance with the Local-level Governments Administration Act, 1997 and the Standing Orders, it was intended the re-election of president was to be conducted at another inaugural meeting.

3. The re-election of the plaintiff as president was conducted at another inaugural meeting called and presided over by the District Administrator in his capacity as chief executive officer of South Wiru Local-level Government, and was proper and valid.

4. The plaintiff was declared the duly elected president of South Wiru Local-level Government.

5. The defendants were ordered to pay the plaintiff's costs of the proceedings to be taxed if not agreed.

Cases cited:

Joseph Kunukunu & Ors -v- Wambi Nondi & Ors (2012) N4511

Counsel:

Mr D Gonol, for Plaintiff
Mr M Tamutai, for Defendants

JUDGMENT

04th April, 2012

1. MAKAIL, J: This is the second time the dispute in relation to the election of president of South Wiru Local-level Government (SWLLG) has come to Court for resolution. By law, a Local-level Government must have a head and he shall be elected, in a case where a determination has been made, in accordance with the Organic Law on National and Local-level Governments Elections and in the case where no such determination has been made, in accordance with the Standing Orders of the Local-level Government: see section 29 of the Organic Law on Provincial Governments and Local-level Governments and section 12 of the Local-level Governments Administration Act, 1997.

2. From the number of affidavits filed by the parties, much of the facts are not disputed. On 12th January 2012, the National Court declined to declare the plaintiff Mr Wambi Nondi or the first defendant Mr Joseph Kunukunu as president of SWLLG and ordered a re-election of president on a date, time and place to be fixed and in accordance with the Local-level Government Administration Act, 1997 and the Standing Orders. Among other reasons, the Court found that the SWLLG had a Standing Order and based on it, the Court was not satisfied in each case, the person who chaired the meeting was the chief executive officer and authorised to call and preside over the meeting for the election of president in accordance with the Standing Orders: see Joseph Kunukunu & Ors -v- Wambi Nondi & Ors (2012) N4511.

3. Instead of parties convening one meeting to elect the president, they held two separate meetings. In one meeting held on 25th January 2012, the third defendant in his capacity as acting president called and presided over it. From that meeting, the first defendant was re-elected as president. In the other held on 26th January 2012, the District Administrator called and presided over it. From this meeting, the plaintiff was re-elected as president.

4. The plaintiff contended his election is valid and he should be declared the duly elected president. This is because as the National Court had declared the first election of the first defendant void and ordered a re-election of president in accordance with the Local-level Governments Administration Act, 1997 and the Standing Orders, there must be another "inaugural meeting" presided over by the District Administrator in his capacity as the chief executive officer of the Local-level Government for the purpose of electing a new president. The defendants contended otherwise, arguing the re-election of president need not be held at an "inaugural meeting" but at an "ordinary meeting" of the Local-level Government. This is because an "inaugural meeting" can only be held following a General Election and following the inaugural meeting in August 2008, many subsequent meetings were held, such that when the Court ordered a re-election of president, it was improper and unrealistic to reconvene another inaugural meeting.

5. It is common ground the main issue is whether the Court ordered re-election of the president should be held at an inaugural meeting. It is true when the Court ordered the re-election of president, it did not specify the type of meeting. Is the re-election of president supposed to be held at an inaugural meeting or an ordinary meeting? An inaugural meeting is held following General Elections and is purposely held to enable the elected councilors to assemble in the chamber at the appointed time, each councilor to be sworn in or make an affirmation before a judge, magistrate or Commissioner of Oaths and more importantly, to elect a head (president) of a Local-level Government: see Standing Orders 8, 9 & 10.

6. The purpose of holding an inaugural meeting of a Local-level Government following General Elections is consistent with the definition of the word "inaugural". According to the Pocket Oxford English Dictionary, Indian 26th ed, (2010), New York, Oxford University Press at 458 "inaugural" is defined as "marking the beginning of an organization or period of office." Applying the definition in the context of a Local-level Government, it means, the marking of the beginning of a term of a Local-level Government following a General Election.

7. Looking back at the history of this dispute, two separate inaugural meetings were held in August 2008 following the General Elections. From these two meetings, two presidents were elected and each instituted separate proceedings to validate each election. When the Court declined to declare either of them as president, it meant each inaugural meeting was not lawfully held and conducted in so far as the election of president is concerned. One of the reasons was that the Court found that there was a Standing Order for SWLLG and based on it, it was not satisfied the person who chaired the inaugural meeting in each case, was the chief executive officer and authorised to call and preside over the meeting to elect the president: see section 18 of the Local-level Governments Administration Act, 1997 and Standing Order 1 (Interpretation).

8. It follows in order to re-elect a new president, another inaugural meeting must be held. That was what the Court had intended when it ordered a re-election of a new president. This meeting must be called by the chief executive officer and he shall preside over it as chairman for the purpose of electing a new president and it is irrelevant whether SWLLG has held many meetings following the two separate inaugural meetings of August 2008. What is significant and relevant is that, the Court has neither recognised the plaintiff nor the first defendant as president in the earlier proceedings and the only way either of them can lawfully assert his right as president is through the same process - an inaugural meeting.

9. Furthermore, it does not matter if the Minister for Provincial and Local-level Government Affairs has published a notice in the National Gazette for the calling of the new inaugural meeting because it is not disputed he has published one in 2008 following the General Elections and in my view, it is sufficient for the purposes of Standing Order 8(1) (Calling of first meeting after a General Election). Similarly, the requirement to call the inaugural meeting not more than 15 days after the date fixed for the return of the writs under section 23(1) of the Local-level Governments Administration Act, 1997 and Standing Order 8(2) had been complied with when parties held two separate inaugural meetings in August 2008 following the return of the writs. Therefore, it is not necessary for parties to comply with this requirement again.

10. For these reasons, with respect, I would reject the contention by the defendants that the re-election of the president should be conducted at an ordinary meeting of SWLLG. To accept this proposition would create more confusion in relation to the process by which a new president is elected following the Court decision. I can see that is exactly what has happened in this case. Parties went away following the Court decision and held two separate meetings based on differing opinions and as a result, two presidents were re-elected, not to mention, the same persons. Furthermore, to accept such a proposition would defeat the whole purpose of challenging the validity of each party's election in the earlier proceedings, which challenge, ultimately, resulted in the Court ordered re-election of president.

11. The concerns raised by the defendants in relation to the threat to the smooth running of the administration and who would head SWLLG during the period after the Court decision of 12th January 2012 and leading up to the meeting to re-elect the new president posed by the vacancy in the office of the president are, as correctly pointed out by counsel for the defendants in submissions, matters that the deputy president would assume in his capacity as acting president in the interim, having being appointed deputy president by the first defendant under section 13 of the Local-level Governments Administration Act, 1997.

12. In other words, when the Court declined to declare the first defendant as president and also declared his election as president null and void in the earlier proceedings, his right to hold office as president ceased on the date of the Court's decision. If he desires to continue to hold office as president, he must seek re-election. However, his cessation as president does not affect or invalidate decisions made by the SWLLG including appointments of officials during his term as president. They remain unaffected: see section 33 of the Interpretation Act.

13. It follows once a new president is elected at the subsequent inaugural meeting, he shall take over from the deputy president (acting president) and decide whether or not to retain the person occupying the position of deputy president. That is a matter for the new president to deal with and the Court need not be concern with. Thus, the next issue that arises is whether the inaugural meeting was held in compliance with the Standing Orders on holding of inaugural meetings. The plaintiff contended an inaugural meeting was called and presided over by the District Administrator in his capacity as the chief executive officer of the Local-level Government for the purpose of electing a new president. Notice of the date, time and venue of the meeting was sent out to the members as well as publicly displayed on the notice board outside Ialibu District office building.

14. The defendants do not deny receiving notice of the meeting but dispute the authority of the person who called and presided over the meeting. Without any evidence supporting their contention, they contended the person who called and chaired the meeting, Mr Pius Puk, was not the District Administrator of Ialibu/Pangia, hence could not lawfully hold himself out as the chief executive officer of SWLLG, and call and preside over the inaugural meeting.

15. It is trite law the party who asserts bears the onus of proving the assertion. In this case, the plaintiff has led evidence that Mr Puk is the District Administrator of Ialibu/Pangia. In that capacity, he is also the chief executive officer of SWLLG: see Affidavit of Pius Puk sworn and filed on 02nd February 2012 and Standing Order 1 (Interpretation).

16. In the absence of any evidence to the contrary, I am satisfied on the balance of probabilities Mr Puk is the District Administrator of Ialibu/Pangia and as such, is also the chief executive officer of SWLLG. On this authority he is an authorised person to call and preside over the inaugural meeting for the purpose of re-electing a new president for SWLLG. He called the meeting on 26th January 2012 and presided over it as chairman. From that meeting, the plaintiff was re-elected unopposed as president.

17. I am satisfied the plaintiff has established his case on the balance of probabilities that he is the duly elected president of SWLLG and grant the orders sought in the originating summons.

18. The formal orders of the Court are:

1. An order by way of declaration that Wambi Nondi is duly elected president of South Wiru Local-level Government as per election on 26th January 2012 at Ialibu District Office Conference Room pursuant to Order of the National Court dated 12th January 2012.
   
2. An order by way of declaration that the purported election of the first defendant as president of South Wiru Local-level Government on 25th January 2012 is null and void.
   

3. The defendants shall pay the plaintiff's costs of the proceedings to be taxed if not agreed.

____________________________________

Paulus Dowa Lawyers: Lawyers for Plaintiff

Tamutai Lawyers: Lawyers for Defendants