Mulung v Mellombo [2014] PGNC 9; N5505 (21 February 2014)

N5505

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO 601 OF 2013

LIMA MULUNG
Plaintiff

V

SAMA M MELLOMBO
First Defendant

TONGAU IGU
Second Defendant

WALON SEBMAN
Third Defendant

YAMBEL UDI
Fourth Defendant

Madang: Cannings J
2014: 31 January, 7, 21 February

INCORPORATED ASSOCIATION – interpretation of provisions of constitution of incorporated association regarding office-bearers of executive committee – election and removal from office of office-bearers – whether procedures for removal and replacement of office-bearers followed

PRACTICE AND PROCEDURE – proceedings commenced by originating summons – determination of issues for trial – whether defendant can obtain relief without making cross-claim – National Court Rules, Order 4, Rule 34 (cross-claim)

The plaintiff was aggrieved by the defendants holding themselves out as office-bearers of an incorporated association. The plaintiff claimed that he was the chairman of the association and that he and other members of the executive committee of the association were duly elected in February 2013. He claimed that the purported election of the defendants in October 2013 breached the constitution (the rules) of the association. He commenced proceedings by originating summons, seeking a declaration that the defendants' election was null and void, that the defendants were not duly elected and that he and his colleagues were the lawfully elected office-bearers and an order restraining the defendants from holding themselves out to be office-bearers and from threatening, harassing or intimidating him. The defendants responded by arguing that the plaintiff and his colleagues were not qualified to be office-bearers, that the plaintiff was relying on a fraudulent version of the constitution, that the defendants were qualified to be office-bearers and that they had been duly elected in accordance with the proper constitution. A trial of the originating summons was conducted.

Held:

(1) The only issues for trial were those directly related to the relief sought in the originating summons. The question of whether the plaintiff and his colleagues were qualified to be office-bearers and the related question of whether they were duly elected in February 2013 were not directly related to the relief sought, and there was insufficient evidence on which the court could determine such issues and the defendants had not made a cross-claim (a course of action available under Order 4, Rule 34 of the National Court Rules) seeking a declaration or any relief impugning the legality of the election of the plaintiff and his colleagues. The questions regarding the plaintiff and his colleagues were not properly before the court and the court declined to determine them.

(2) The presumption of regularity applied: it was presumed that the plaintiff and his colleagues were in February 2013 lawfully elected as office-bearers for a period of three years.

(3) The question of whether the plaintiff was relying on the correct version of the constitution was a proper issue for determination. In the absence of a copy of the rules certified by the Registrar of Companies under Section 29(2) of the Associations Incorporation Act, the court preferred the version of the constitution put into evidence by the defendants and regarded it as the proper document against which to test the plaintiff's claim for relief.

(4) The constitution of the association required that there be an executive committee consisting of 12 members, three being appointed by each of the four landowning areas; and that it was the executive committee that elected the four office-bearers: chairman, deputy chairman, secretary and treasurer.

(5) To be elected an office-bearer a person first has to be appointed a member of the executive committee, and to be appointed a member of the executive committee, there first has to be a vacancy. For there to be a vacancy a member of the executive committee must: have completed his term, die, resign, be involved in a serious accident, commit misconduct in office or otherwise be lawfully removed from office in accordance with the constitution.

(6) The constitution is silent on the procedure for removal from office of a member of the executive committee, but it is to be reasonably inferred that a member may be removed if he loses the confidence of the executive committee or the landowning clans he represents (who are responsible for his appointment) or the members of the association (expressed at a properly convened general meeting) and the principles of natural justice are adhered to.

(7) The procedure that resulted in the purported election of the defendants as office-bearers was not compliant with the constitution, in that there were no vacancies in those offices, the plaintiff and the office-bearers elected in February were never removed from office, the defendants were not appointed as members of the executive committee (a member of the association can only be elected an office-bearer if he is first appointed to the executive committee) and the meeting at which certain members of the association purported to elect the defendants was not a properly convened general meeting; the procedure also offended against the principles of natural justice in that the plaintiff and his colleagues were not given a fair opportunity to be heard on the question of whether they should be removed from office.

(8) The plaintiff was granted the primary relief he sought. It was declared that the defendants' election was null and void, that the defendants were not duly elected and that the plaintiff and his colleagues were the lawfully elected officer-bearers; and the defendants were restrained from holding themselves out as office-bearers.

Cases cited

Jimmy Malai v PNG Teachers Association [1991] PNGLR 116
Pasisi v Bururu (2010) N3890)
Vitolo v Mautu (2010) N4104

ORIGINATING SUMMONS

This was an application for declarations and orders regarding election of officer-bearers in an incorporated association.

Counsel

B W Meten, for the plaintiff
S M Mellombo, in person, with the leave of the Court, for the defendants

21st February, 2014

1. CANNINGS J: The plaintiff, Lima Mulung, claims to be the duly elected chairman of the Basamuk Landowners Association. The first defendant, Sama Mellombo, also claims to be the chairman of the Basamuk Landowners Association. The plaintiff says that he was elected as chairman in February 2013. The first defendant says that his election as chairman, in October 2013, supersedes that of the plaintiff. The ultimate issue in this case is who is the duly elected chairman, the plaintiff or the first defendant?

2. Before answering that question, some backgrounding is necessary. The plaintiff commenced these proceedings on 12 November 2013 soon after the first defendant made it generally known that he was the new chairman of the Association, and that the other new office-bearers were:

• Vice-Chairman, Tongau Igu (the second defendant);
• Secretary, Walon Sebman (the third defendant);
• Treasurer, Yambel Udi (the fourth defendant).
  

3. The first defendant wrote to the Madang Director of Mines, John Bivi, on 4 October 2013, stating that following the recent identification by the Special Land Titles Commission of legitimate landowners in the area of the Basamuk refinery (which forms an integral part of the Ramu Nickel-Cobalt Project) the "proper executives" of the Basamuk Landowners Association had been appointed, replacing the plaintiff and his colleague office-bearers, Woe Gori, Chris Daug and Kuai Dup.

4. The plaintiff was aggrieved by the defendants holding themselves out as office-bearers. He claims he is the only chairman and that he and his colleagues were duly elected in February 2013. He claims that the purported election of the defendants in October 2013 breached the constitution (the rules) of the association. So he commenced these proceedings, seeking a declaration that the defendants' election was null and void, that the defendants were not duly elected and that he and his colleagues are the lawfully elected officer-bearers. He also seeks an order restraining the defendants from holding themselves out to be office-bearers and from threatening, harassing or intimidating him.

5. The defendants have responded by arguing that:

• the plaintiff and his colleagues are not qualified to be office-bearers,
• the plaintiff is relying on a fraudulent version of the constitution (the defendants have presented an alternative version),
• the defendants are qualified to be office-bearers,
• the defendants have been duly elected in accordance with the proper constitution.
  

ISSUES

6. These are the main issues to be addressed:

1. Should the Court determine the eligibility of the plaintiff and his colleagues?
   
2. Which is the correct version of the constitution?
   
3. What procedures have to be followed for election of office-bearers?
   
4. Were the procedures followed in this case?
   
5. What declarations or orders should the court make?
   

1 SHOULD THE COURT DETERMINE THE ELIGIBILITY OF THE PLAINTIFF AND HIS COLLEAGUES?

7. This is as an important preliminary issue. The defendants claim that the plaintiff is not a genuine Basamuk landowner as he comes from a village 20 km to the north of the refinery site. So he cannot be chairman of the Basamuk Landowners Association. This is an interesting and intriguing issue, however the only issues for trial are those directly related to the relief sought in the originating summons.

8. The question of whether the plaintiff and his colleagues are qualified to be office-bearers and the related question of whether they were duly elected in February 2013 are not directly related to the relief sought. Furthermore there is insufficient evidence on which the court could determine such issues. The defendants could have made a cross-claim under Order 4, Rule 34 of the National Court Rules, seeking a declaration or any relief impugning the legality of the election of the plaintiff and his colleagues. But they did not do that, so the issue of the eligibility of the plaintiff and his colleagues is not properly before the court, and I decline to consider it any further.

9. In any event the presumption of regularity applies in this situation. The plaintiff has adduced evidence of his election as chairman, so it is presumed – in the absence of the issue being properly raised and in the absence of evidence to the contrary – that he was lawfully appointed (Jimmy Malai v PNG Teachers Association [1991] PNGLR 116). The court presumes for the purposes of these proceedings that the plaintiff and his colleagues were in February 2013 lawfully elected as office-bearers in accordance with the constitution of the association for a period of three years.

2 WHICH IS THE CORRECT VERSION OF THE CONSTITUTION?

10. The question of whether the plaintiff is relying on the correct version of the constitution is a proper issue for determination. In the absence of a copy of the rules certified by the Registrar of Companies under Section 29(2) of the Associations Incorporation Act, I prefer the version of the constitution put into evidence by the defendants. The plaintiff's version has a number of references to landowning areas in the Usino area, which is well away from the Basamuk area. I do not find that it is a "fraudulent" document. But it cannot be regarded as a reliable piece of evidence. The defendants' version of the constitution (exhibit D2, annexure SM15) is the proper document against which the plaintiff's claim for relief must be tested.

3 WHAT PROCEDURES HAVE TO BE FOLLOWED FOR ELECTION OF OFFICE-BEARERS?

11. The constitution provides that there are four office-bearers: chairman, deputy chairman, secretary and treasurer. They are elected, not directly by the members of the association, but by the members of the executive committee (sections 9 and 12). To be elected an office-bearer a person must be a member of the executive committee and be a customary landowner (sections 9, 10).

12. There are 12 members of the executive committee. They are not elected by the membership of the association. Instead they are appointed by the clans that comprise each of the four landowning areas in the land lying within the leases within Ward 30 of the Rai Coast Local-level Government (section 2A(1)). There are four landowning areas:

• Biname;
• Plant Site;
• Limestone; and
• Town Site.
  

13. Each of those four areas is entitled to appoint three members (as their representatives) to the executive committee (sections 9(5), 12(2)(a)). To be appointed a member of the executive committee, a person must be a financial member of the association and "mature and well respected within the area" (section 10).

14. There is another important requirement: the number of members of the executive committee is 12 (section 9), so to be appointed as a member, there must be a vacancy. For there to be a vacancy, a member of the executive committee must: have completed his term (which is three years (section 9(3)), die, resign, be involved in a serious accident, commit misconduct in office or otherwise be lawfully removed from office in accordance with the constitution (sections 13, 14, 15).

15. The constitution is silent on the procedure for removal from office of a member of the executive committee, but it is to be reasonably inferred that a member may be removed if he loses the confidence of the executive committee or the landowning clans he represents (who are responsible for his appointment) or the members of the association (expressed at a properly convened general meeting) and the principles of natural justice are adhered to (Pasisi v Bururu (2010) N3890), Vitolo v Mautu (2010) N4104).

4 WERE THE PROCEDURES FOLLOWED IN THIS CASE?

16. The procedure that was actually adopted here was that the fourth defendant published a written notice entitled "TOK SAVE BILONG BLOA BUNG", dated 23 September 2013, announcing that in light of the recent decision of the Special Land Titles Commission there would be a meeting of all financial members of the association to elect new officer-bearers at 10.00 am on Friday 3 October 2013 at Asa Market Place (exhibit D1, annexure SM7).

17. That meeting evidently took place, according to the evidence of the first defendant, and he and the other defendants were elected as office-bearers in the absence of the plaintiff and his colleagues, with the support of 122 members of the association, drawn from 11 clans.

18. I uphold the submission of Mr Meten for the plaintiff that the procedure that resulted in the purported election of the defendants as office-bearers was not compliant with the constitution, in that:

• there were no vacancies in those offices;
  
• the plaintiff and the office-bearers elected in February were never removed from office, or if they were removed at the meeting at Asa on 3 October 2013, their removal was not effected at an extraordinary general meeting convened in accordance with the constitution (sections 17, 18, 19);
  
• the defendants were not appointed as members of the executive committee (a member of the association can only be elected an office-bearer if he is first appointed to the executive committee); and
  
• the procedure also offended against the principles of natural justice in that the plaintiff and his colleagues were not given a fair opportunity to be heard on the question of whether they should be removed from office.
  

5 WHAT DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?

19. The plaintiff has proven that proper procedures were not followed. He will be granted the primary relief he seeks. However, I don't think it is necessary to order that the defendants be restrained from threatening or intimidating him. There is no evidence or indication that the defendants will not comply with the court's orders. Costs will follow the event.

ORDER

(1) It is declared that the election of the defendants as office-bearers in Basamuk Landowners Association Inc is null and void and that they were not duly elected as office-bearers or members of the executive committee of Basamuk Landowners Association Inc.

(2) The plaintiff and others elected as office-bearers on or about 4 February 2013 are presumed unless and until the court orders otherwise to have been lawfully elected as officer-bearers of Basamuk Landowners Association Inc.

(3) The defendants are restrained unless and until the Court orders otherwise from holding themselves out as or representing themselves or acting as office-bearers of Basamuk Landowners Association Inc.

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

Ordered accordingly.
_________________________________
Meten Lawyers: Lawyers for the Plaintiff