Sorum v Kamo [2013] PGNC 162; N5359 (30 September 2013)

N5359

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 158 OF 2013

LAU SORUM
Plaintiff

V

MIKE KAMO, MAYOR OF MADANG
First Defendant

MADANG URBAN LOCAL-LEVEL GOVERNMENT
Second Defendant

Madang: Cannings J
2013: 16 August, 6, 30 September

LOCAL-LEVEL GOVERNMENTS – appointing authority for staff of local-level governments – position of Town Manager – whether a local-level government can reject appointment of person selected by Provincial Administrator.

The plaintiff was the successful applicant for the position of town manager of an urban local-level government. The Provincial Administrator gave written notice to him of his appointment and he accepted the appointment. However, his appointment was opposed and resisted by the Mayor and other members of the local-level government. Unable to overcome that resistance the plaintiff applied to the National Court by originating summons seeking a declaration amongst other things that he was the duly appointed town manager.

Held:

(1) The appointing authority is the Provincial Administrator and there was no evidence to suggest that the required procedures for appointment had not been followed.

(2) Accordingly the Court: (a) declared that the plaintiff had been duly appointed by the appointing authority and that the Mayor and the Local-level Government had no authority to revoke or refuse to accept his appointment and (b) ordered that the person currently acting in the position vacate it with effect from the time and date nominated by the Court and co-operate with the plaintiff and conduct a formal handover-takeover at the time and place set by the Court.

Cases cited

The following cases are cited in the judgment:

Mudge v Secretary for Lands [1985] PNGLR 387
Zachary Gelu v Francis Damem (2004) N2762

ORIGINATING SUMMONS

This was an application for declarations and orders regarding a public office.

Counsel

B W Meten, for the plaintiff
T M Ilaisa, for the defendants

30th September, 2013

1. CANNINGS J: The plaintiff Lau Sorum applies for declarations and orders concerning the position of Town Manager in the Madang Urban Local-level Government.

2. Mr Sorum was on 12 August 2012 notified in writing by the Madang Provincial Administrator, Mr Bernard Lange, that he was the successful applicant for the position of Town Manager, which had been advertised in the media in 2011. Mr Sorum accepted the appointment on 22 August 2012. On 26 September 2012 Mr Lange wrote to the person who had been acting in the position of Town Manager, Mr Titus Futrepa, and notified him that his acting appointment was revoked and that he was required to officially hand-over all responsibilities of the position to Mr Sorum by 1 October 2012.

3. There was no hand-over by that date, however, as Mr Sorum's appointment was strongly opposed and resisted by the Mayor of Madang, Mr Mike Kamo (the first defendant) and other members of Madang Urban Local-level Government (the second defendant). They took the view that Mr Sorum was an unsuitable appointee due to unresolved allegations of abuse of office against him arising from a period when he was Acting Town Manager in 2009. Mr Sorum says that those allegations were found to be unsubstantiated; and he says that in any event the allegations only arose because of the hard stand he took on corruption within Madang Urban Local-level Government, including putting a stop to an attempt by its members, including Mr Kamo, to pay themselves extra unlawful sitting allowances.

4. On 12 November 2012 Mr Lange rescinded the revocation of Mr Futrepa's acting appointment and reappointed him as Acting Town Manager, until further notice. Mr Lange apparently did so in an attempt to resolve, at least on an interim basis, the impasse that had developed, and the inevitable confusion in the running of Madang Urban Local-level Government. Mr Futrepa remains to this day as Acting Town Manager, and Mr Sorum is yet to start work.

5. On 27 March 2013 Mr Sorum commenced the present Court proceedings. The trial was conducted on 16 August and 6 September 2013. Mr Sorum applies for declarations that he is the duly appointed Town Manager, that the appointing authority is the Provincial Government and that the Mayor of Madang and the Madang Local-level Government have no power or authority to revoke or refuse to accept his appointment. He also applies for an order that he be permitted to take up the position of Town Manager forthwith.

6. I will address the issues in this order:

1. Who is the appointing authority for the position of Town Manager?
   
2. Was Mr Sorum lawfully appointed?
   
3. Can the Mayor or the LLG revoke or refuse the appointment?
   
4. Should Mr Sorum's application be granted?
   

1 WHO IS THE APPOINTING AUTHORITY?

7. Mr Meten for the plaintiff submitted that it is the Madang Provincial Government. Mr Ilaisa for the defendants did not provide an alternative answer, preferring to take the position that it is up to the plaintiff to prove his case. He asserted that Mr Meten had been unable to point to the laws and instruments showing that the Provincial Government is authorised to appoint the Town Manager.

8. The reason that this simple question does not admit of a simple answer is that there is no single law that clearly and precisely states the procedure for appointment of a Town Manager. There are, however, three laws that, read together, provide the answer and appear to authorise the practice that has developed in making such appointments.

9. First, the Organic Law on Provincial Governments and Local-level Governments gives the Provincial Administrator powers of control over the staff of Local-level Governments. Section 74 (functions of the Provincial and District Administrator) relevantly provides:

(1) The Provincial Administrator of a province—

(a) shall be the chief executive officer of the Provincial Government; and

(b) shall be the administrative head of the staff in the province; and

(c) is responsible for the efficient management of administrative services in the province; and

(d) shall maintain overall supervision and direction, in accordance with an Act of Parliament, over all officers and employees assigned or otherwise employed to carry out the functions of the National Government (other than the law enforcement agencies unless by special arrangement with these agencies) and the Provincial Governments and Local-level Governments; ...

(2) Subject to Subsection (3), the District Administrator—

(a) shall be the chief executive officer of the Local-level Governments in a district; and

(b) shall be the administrative head of the staff in a district; ...

(3) In performing the functions under Subsection (2), a District Administrator shall comply with any ...

(b) administrative and functional directives from the Provincial Administrator; ... [Emphasis added]

10. Secondly, the Public Services (Management) Act 1995 gives the Provincial Administrator additional functions regarding the staff of the province. Section 63 (functions of the Provincial and District Administrator) relevantly provides:

In addition to the functions specified in Section 74(1) of the Organic Law on Provincial Governments and Local-level Governments, the Provincial Administrator of a province—

(a) is the chief adviser to the Provincial Governor and to the Provincial Executive Council; and

(b) subject to relevant National laws is responsible to the Provincial Executive Council for strategic planning and financial and human resource management. [Emphasis added]

11. Thirdly, the Local-level Governments Administration Act 1997 does not give a Local-level Government the power to appoint any officers or employees, instead it provides, impliedly, that such appointments should be made under the Public Services (Management) Act 1995. Section 40(1) (administrative arrangements) states:

(1) Except as provided in the Organic Law and in this Act, the administrative arrangements for a Local-level Government shall, in relation to—

(a) financial matters, be in accordance with the Public Finances (Management) Act 1995; and

(b) auditing matters, be in accordance with the Audit Act 1989; and

(c) personnel, support services and other staff matters, be in accordance with the Public Services (Management) Act 1995; and

(d) other matter, be in accordance with the appropriate law.

12. The combined effect of these laws is that the position of Town Manager, Madang Urban Local-level Government, forms part of "the staff" of Madang Province. The position therefore falls within the administrative purview of the Provincial Administrator. Appointments to the position are to be made in accordance with the procedures prescribed by the Public Services (Management) Act 1995. The appointing authority is the Provincial Administrator, acting in accordance with the recommendation of a selection committee appointed under the Public Services (Management) Act 1995.

2 WAS MR SORUM LAWFULLY APPOINTED?

13. Yes. Nothing in the evidence suggests that the procedures required by the Public Services (Management) Act 1995 were not followed. Indeed no challenge has been made to the lawfulness of the appointment.

3 CAN THE MAYOR OR THE LOCAL-LEVEL GOVERNMENT REVOKE OR REFUSE THE APPOINTMENT?

14. No. There is no law by which the Mayor or the LLG can revoke or refuse to accept the appointment of a person who has been lawfully appointed Town Manager by the Provincial Administrator.

4. SHOULD MR SORUM'S APPLICATION BE GRANTED?
   

15. Yes. A declaration is a discretionary remedy, in that the court needs to be convinced that it is just and appropriate to declare the law or the legal status of the parties. It might not, for example, grant a declaration on a purely academic point of law or if the declaration would serve no useful purpose or if a plaintiff seeks the relief for some improper motive or where there has been an unwarranted delay in seeking relief or where other relief such as an order for damages would be more appropriately granted (Mudge v Secretary for Lands [1985] PNGLR 387, Zachary Gelu v Francis Damem (2004) N2762). In this case, making a declaration of the law and the positions of the parties will serve a useful, practical purpose. I can detect no improper motive on the part of the plaintiff and he is not guilty of any unreasonable delay in commencing the proceedings. The plaintiff has shown that he was lawfully appointed and the defendants have provided no good reason for refusing the application for the various declarations and orders that have been sought. I will make declarations generally in terms of those sought. I will also order that the parties co-operate in holding a formal handover-takeover the day after this decision is handed down. Costs will follow the event.

ORDER

(1) It is declared that:

(a) the plaintiff was on 16 August 2012 duly appointed as Town Manager of Madang Urban Local-level Government;

(b) the appointing authority for the position of Town Manager of Madang Urban Local-level Government is the Madang Provincial Administrator acting pursuant to the powers and procedures for appointment prescribed under the Organic Law on Provincial Governments and Local-level Governments, the Public Services (Management) Act 1995 and the Local-level Governments Administration Act 1997;

(c) the Mayor of Madang and the Madang Local-level Government have no power or authority to revoke or refuse to accept the appointment as Town Manager of any person, including the plaintiff, who has been duly appointed as Town Manager.

(2) The person currently acting in the position of Town Manager shall vacate it with effect from 12 noon on 1 October 2013 and shall co-operate with the plaintiff in conducting a formal handover-takeover at 12 noon on 1 October 2013 at the offices of Madang Urban Local-level Government.

(3) The defendants shall pay the plaintiff's costs of these proceedings on a party-party basis which shall, if not agreed, be taxed.

(4) Time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Ordered accordingly.
_____________________________________________
Meten Lawyers: Lawyers for the Plaintiff
Thomas More Ilaisa Lawyers: Lawyers for the Defendant