Ikubu v Morata [2012] PGNC 93; N4731 (17 July 2012)

N4731

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 406 OF 2012

BETWEEN

MIRIA IKUPU
First Plaintiff

AND

MOTU KOITA ASSEMBLY
Second Plaintiff

AND

BOIO MORATA
First Defendant

AND

TOUA PAUL TOUA
Second Defendant

AND

MOREA LAHUI SERE
Third Defendant

AND

NOU MATAIO
Fourth Defendant

AND

CATHY RAKA
Fifth Defendant

AND

KEKE LOA REVA
Sixth Defendant

AND

IAVA GEITA
Seventh Defendant

AND

OS NO 416 OF 2012

BETWEEN

BOIO MORATA, in his capacity as Deputy Chairman of Motu Koita Assembly
First Plaintiff

AND

TOUA PAUL TOUA, IAVA GEITA, CATHY RAKA, KEKE REVA, NOU MATAIO, AND MOREA LAHUI SERE, in their capacity as councillors of Motu Koita Assembly
Second Plaintiffs

AND

MIRIA NAIME IKUPU
First Defendant

AND

MOTU KOITA ASSEMBLY
Second Defendant

Waigani: Makail, J
2012: 13th & 17th July

PRACTICE & PROCEDURE - Application to set aside ex-parte interim order - Ex-parte interim order restraining removal from office as Chairman of Assembly - Dismissal of proceedings - Whether there are serious issues raised - Grant of leave of absence to contest National-General elections - Resignation - Balance of convenience - Chairman resuming duties after leave of absence - National-General elections in progress - Preservation of status quo - Application dismissed - Interim injunction extended.

No cases cited:

Counsel:

Mr R Diveni, for Plaintiffs in OS No 406 of 2012 proceedings
Mr R Koaru, for Defendants in OS No 406 of 2012 proceedings
Mr R Koaru, for Plaintiffs in OS No 416 of 2012 proceedings
Mr R Diveni, for Defendants in OS No 416 of 2012 proceedings

RULING ON APPLICATION TO SET ASIDE EX-PARTE INTERIM INJUNCTION AND DISMISSAL OF PROCEEDINGS

17th July, 2012

1. MAKAIL, J: These proceedings are related and the applications that are filed in each proceeding were heard together. The proceedings relate to a dispute over the chairmanship of the Motu Koita Assembly. In proceedings OS No 406 of 2012, on 09th July 2012, Mr Miria Ikupu and the Motu Koita Assembly obtained an ex parte interim injunction restraining Mr Boio Morata and others from passing any resolutions to remove Mr Ikupu as Chairman of the Assembly while Mr Ikupu is on leave of absence to contest the 2012 National-General elections for the Moresby North West open electorate. In the substantive matter, they do not seek declarations in relation to the authority of Mr Morata and others to call meetings. They only seek to have the interim injunction made permanent.

2. The interim injunction was returnable on 12th July and further adjourned to 13th July for hearing inter parties. On 13th July, they asked the Court to extend it until the determination of the substantive matter. Mr Morata and other members of the Assembly applied to dismiss the proceedings and in the alternative, set aside the ex-parte interim injunction.

3. In proceedings OS No 416 of 2012, Mr Morata and others apply for an interim injunction to among other orders, restrain Mr Ikupu, his servants and agents including Misi Samuel from using the staff, motor vehicles and funds of the Assembly to campaign for the Moresby North West seat in the 2012 National-General elections and restrain Mr Ikupu from holding himself out as Chairman of the Assembly while contesting the Moresby North West seat in the 2012 National-General elections. If these interim orders are granted, in the substantive matter, they seek to have them made permanent.

4. According to the affidavit of Mr Ikupu filed on 06th July 2012, affidavit of Igua Ako filed on 06th July 2012, affidavit of Reisino Peni filed on 12th July 2012, affidavit of Lohia Vanuawaru filed on 06th July 2012, affidavit of Boio Morata filed on 10th July 2012, affidavit of Cathy Raka filed on 10th July 2012 and affidavit of Keke Reva filed on 10th July 2012, it is not disputed that Mr Ikupu is the Chairman of the Assembly and his deputy was Mr Morata. On 18th May 2012, the Assembly granted leave of absence to Mr Ikupu. The leave was to allow Mr Ikupu time off work to go and contest the Moresby North West seat in the 2012 National-General elections.

5. However, it is unclear from the evidence who was appointed acting Chairman while he was on leave. What is clear though is that councillor Reisino Peni from Vabukori village was appointed Deputy Chairman of the Assembly in a special meeting of the Assembly on 05th July 2012. He replaced Mr Morata who was allegedly suspended and eventually terminated from the Assembly along with other members for failing to attend three consecutive Assembly meetings. Mr Morata alleges that he and other members were not informed of the meeting that approved Mr Ikupu's leave and as a result did not attend. He disputes his termination because the Assembly has no power to terminate him and others. It is the Minister for Provincial and Local-level Government Affairs.

6. Further, he was not handed the Chairmanship after Mr Ikupu left to go and contest the 2012 National-General elections. Mr Ikupu has prevented him and others access to the office, motor vehicles and funds of the Assembly. He has used the staff, motor vehicles and funds of the Assembly to campaign during the election. Mr Morata further alleges that he raised these matters with the Secretary of Provincial and Local-level Governments Affairs. On 07th June 2012, the Secretary wrote to Mr Ikupu and raised these concerns and urged him to resign in order to avoid being referred to the Ombudsman Commission for leadership breaches and challenge to the validity of his election if he wins the Moresby North West seat. Yet, Mr Ikupu refused to resign and continues to pursue his interest to be elected to public elective office.

7. Counsel for Mr Morata submits that the proceedings commenced by Mr Ikupu and the Assembly should be dismissed in its entirety because it fails to disclose a reasonable cause of action and is also an abuse of process. He submits that Mr Ikupu has failed to resign to contest the election. He is obliged to resign because Motu Koita Assembly is a public office established under section 10(2) of the Motu Koita Assembly Act, 2007. As it is a public office, it also means that the office of Chairman is also a public office. As the person occupying that position, Mr Ikupu is subject to sections 26 and 27 of the Constitution. As a leader, he must not place himself in a conflict of interest situation or demean the office. He submits that Mr Ikupu has placed himself in a conflict of interest situation and has also demeaned the office of Chairman when he failed to resigned to contest the election. This is evident in the way he has used staff, motor vehicles and funds of the Assembly to campaign during the election.

8. Mr Ikupu and the Assembly oppose the application. Their counsel submits that the enabling Act, the Motu Koita Assembly Act, 2007 is silent on the question of resignation of Chairman in a case where the Chairman seeks to contest the National-General Elections. In addition, there is no provision in the Organic Law on Provincial and Local-level Governments or the Organic Law on National and Local-Level Government Elections requiring the Chairman to resign from office to contest the National-General Elections. It was deliberately left out because the Chairman is not elected by the members of the Assembly but directly by the people in an election conducted by the Electoral Commission under section 11(1)(a) of the Motu Koita Assembly Act, 2007. The Chairman holds office for a term of 5 years under section 11(2) of the Motu Koita Assembly Act, 2007. As such, it is the people of Motu Koita who decides his tenure in office at an election.

9. As the office is an elective one, counsel further submits that there is no need for Mr Ikupu to resign to contest the election. He only needs to obtain approval from the Assembly to take leave of absence to go and contest the election and this he did on 18th May 2012. In his absence, the Deputy Chairman took charge of the affairs of the Assembly. Furthermore, he submits the allegations in relation to Mr Ikupu using staff, motor vehicles and funds of the Assembly to campaign during the election are not supported by any concrete evidence and should be dismissed by the Court.

10. On 09th July 2012, Mr Ikupu and the Assembly were granted ex parte interim injunction. Mr Morata and others now ask that it be set aside. To grant or refuse such an application is an exercise of discretion by the Court. One of the considerations in an application of this nature is that, the applicant must show that there are no serious issues to be tried to warrant further consideration by the Court at trial.

11. Section 22 of the Motu Koita Assembly Act, 2007 states that there shall be a Chairman for the Assembly. Section 11(1)(a) of the same Act states that the Chairman is elected by the Motu Koita people in an election conducted by the Electoral Commission. For this reason, it is arguable that Mr Ikupu is not obliged to resign from the position of Chairman to contest the election because he is directly elected by the people. Similarly, there is no express provision in the Motu Koita Assembly Act, 2007, Organic Law on Provincial and Local-level Governments or Organic Law on National and Local-Level Government Elections requiring him to resign to contest the election. In any case, he has sought and obtained leave from the Assembly to take time off work to contest the election. In his absence, the deputy Chairman is in charge of the operations of the Assembly.

12. Conversely, if the submissions of Mr Morata and others are considered in the context of transparency and accountability, it is arguable that Mr Ikupu is obliged to resign to contest the election. For, as the Assembly is a public office and as a holder of a public office, Mr Ikupu must not place himself in a conflict of interest situation or demean the office. To maintain and uphold the integrity of the office, he must resign. Already serious allegations have been levelled against him in relation to the use of staff, motor vehicles and funds of the Assembly to campaign during the election.

13. The proceedings commenced by Mr Morata and others challenges the validity of the decision of the Assembly of 18th May 2012 in granting leave of absence to Mr Ikupu. In the interim, they apply for interim orders among others to restrain Mr Ikupu from holding himself out as Chairman of the Assembly while contesting the Moresby North West seat.

14. The main issue raised in this proceedings is whether the meeting of the Assembly of 18th May 2012 which granted leave of absence to Mr Ikupu is valid. It is arguable that members of the Assembly had met and approved Mr Ikupu's request for leave of absence. Mr Morata and others were not informed of the meeting because they were suspended at that time. The Assembly has authority under sections 17 and 22(3) of the Motu Koita Assembly Act, 2007 to grant leave of absence to the Chairman. On the other hand, it is also arguable that the meeting is invalid because not all the members of the Assembly attended, in particular Mr Morata and others. This is because they were not informed of the meeting. Equally, it is arguable that if leave of absence is considered in the context of attendances at meetings of the Assembly, standing order 13 of the Motu Koita Assembly restricts the application of leave of absence to only meetings of the Assembly.

15. In my opinion, the different positions presented by counsel sufficiently demonstrate that there are serious issues raised in the proceedings commenced by Mr Ikupu and the Assembly. Similarly, the two opposing views in relation to the validity of the meeting of 18th May 2012 give rise to a serious issue in the proceedings commenced by Mr Morata and others. These issues call for further consideration by the Court at trial. The only issue I have with parties is that, they have not pleaded the reliefs in the originating summons in each case. Mr Ikupu and the Assembly must plead the type of relief they are seeking if they allege that Mr Morata and others have been terminated from the Assembly, hence have no standing to call meetings of the Assembly. Similarly, Mr Morata and others must plead the type of relief they seek if they allege that Mr Ikupu is not the Chairman of the Assembly. These defects may be cured by amendments rather than strike out of the proceedings and doing no justice to the parties.

16. Equally important is the balance of convenience consideration. In my view, it does not favour the setting aside of the interim injunction of 09th July 2012. Conversely, it does not favour the grant of interim orders sought by Mr Morata and others. Mr Ikupu is contesting the Moresby North West seat. Election is underway. There is no issue that he has not nominated to contest that seat nor is there an issue in relation to his residential status. The only issue is that he did not resign from the position of Chairman to contest the election. This concern arises from allegations that he has used his position to use staff, motor vehicles and funds to contest the election. It is the law that the onus of proof is on the party who alleges. In this case, the assertions in the affidavits of Mr Morata and others are hearsay and vague and I reject them. That being the case, there is no evidence to prove these assertions.

17. The minutes of the meeting of 18th May 2012 states that Mr Ikupu was granted leave for 5 weeks to contest the Moresby North West seat and will resume duties on 25th June 2012. There is no evidence that he has not resumed duties on 25th June. On the other hand, there is evidence in the minutes of meeting of 05th July 2012 that he presided as Chairman over a meeting of the Assembly on that date. On the evidence, I find Mr Ikupu has resumed duties and is overseeing the operations of the Assembly. In the circumstances, I am of the opinion that the status quo must be preserved. That means, until the Court determines the issues raised by the parties at trial, the interests of justice require that Mr Ikupu should remain Chairman.

18. For these reasons, I refuse to set aside the ex parte interim injunction of 09th July 2012. It will remain until the determination of the substantive proceedings or until further order. I also refuse the application by Mr Morata and others for interim injunction. Both proceedings are adjourned for directions hearings on a date to be agreed by counsel.

Ruling accordingly.
____________________________________
Stevens Lawyers: Lawyers for Plaintiffs in OS No 406 of 2012 proceedings
Warner Shand Lawyers: Lawyers for Defendants in OS No 406 of 2012 proceedings
Warner Shand Lawyers: Lawyers for Plaintiffs in OS No 416 of 2012 proceedings
Stevens Lawyers: Lawyers for Defendants in OS No 416 of 2012 proceedings