Kau v Omle [2016] PGNC 303; N6504 (13 October 2016)

N6504

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS No. 308 OF 2016

BETWEEN:

Komane Kau in His Capacity as President
of Tabare Local Level Government
Plaintiff/Applicant

AND:

Joseph Omle, Tom Winol, Nime Maue, Kora Taul,
Ago Dom, Alford Wimi, David Kama, Bensin Mapil,
Japan Kama, Nari Miopa, Apa Dama, Dewo White, Maria Bal,
Mary George As Members of Tabare Local Level Government

Defendants/Respondents

Kundiawa: Liosi, AJ
2016: 30^th May, 22^nd June, 9^th October & 13^th October

ELECTIONS - Local Level Government elections - Attempted Vote of No-confidence - Validity of - Attempting to move vote of no-confidence in contravention of Section 234(2)(a) & (b) of the Organic Law on Provincial & Local Level Government - Section 12(1)(a) of the Local Level Government Administration Act 1977 - Declaratory Orders to invalidate proposed No-confidence motion granted - Permanent injunctions granted.

Cases cited
Namah v Poole (2016) PGNC 2013 N6397

Counsel:
Ms. R. Kot, for the Plaintiff
Mr. J, Tonge, for the Defendants

Ruling

13 October, 2016
1. LIOSI AJ: Before me are three proceedings for determination. The first is a motion to set aside the exparte restraining orders obtained by the plaintiff on 30^th May 2016. The second is the respondent’s motion to dismiss the entire proceedings filed on 27^th May 2016. The third is a ruling on the substantive hearing as to whether the substantive declaratory orders in the form of permanent injunctions been sought should be granted or not.

Background

2. The plaintiff Mr. Komane Kau is the President of Tabare Local Level Government in Sinasina Yongomugl District, Simbu. He was served with a notice of motion of no- confidence dated 13^th March 2016 to be heard on Tuesday 31^st March 2016. He was elected by the people in the 2013 Local Level Government general elections together with Ward councillors under the new regime. Consequently, he says he cannot be voted out in this manner. The notice of motion of no-confidence is in breach of the Organic Law pursuant to Section 234(2) (a) & (b) of Organic Law on Local Level Government & the Local Level Government Administration Act 1997.
On the 30^th May 2016, I issued exparte interim restraining orders which were made returnable on 22^nd June, 2016 at 9:30 am for interparty hearing on the substantive matter.
3. I propose to deal with the two interlocutory applications by the respondents first.

1. The two interlocutory applications are sought in the one notice of motion filed on 7^th June 2016. The first application seeks orders to set aside the exparte interim orders of 30^th May 2016 pursuant to Order 12 Rule 98(3) of the National Court Rules. The second order seeks that the entire proceedings filed by way of originating summons on 27^th May 2016 be dismissed.
   
2. The Respondents argue that the granting of the interim orders and the filing of the substantive proceedings are misconceived as the purported vote of no-confidence in the plaintiff never proceeded as scheduled. The respondents do not say why. I can only presume that was because of the interim orders that were granted and served on them.
   

100. As to the second order seeking dismissal of the proceedings, the respondents argue that order five (5) of the interim orders was not complied with in that service of the process was never effected on the respondents. Secondly, that votes of no-confidence were allowed and provided for under Section 12 of the Local-level Government Administration Act 1997. Hence, there is no cause of action for a substantive hearing.

4. In response, the plaintiff raises preliminary objections. Firstly, on the issue of standing the plaintiff submits, the respondents have not filed a Notice of Intention to Defend. Pursuant to Order 4 Rule 9(3) (b) of the National Court Rules, a defendant in an Originating Summons must file a Notice of Intention to Defend. Pursuant to Order 7 Rule 2 of the National Court Rules, a person shall not take any step in any proceedings unless he has filed a Notice of Intention to Defend. In its absence the notice of motion is not properly before this Court and should not be entertained.
   
5. The plaintiff submits, the ground relating to service of documents must fail as documents have all been served. Affidavits of service confirming service of all the documents are documents numbered 10 - 22 on the Court file.
   
6. The orders sought relating to dismissal of proceedings is incompetent for failure to invoke the jurisdictional basis of the Court to grant the order.
   

4. Ruling

1. The respondent has filed one notice of motion on the 7^th June, 2016 seeking orders to set aside the exparte interim orders of 30^th May 2016, and to dismiss the entire proceedings. The respondents say the substantive proceedings and the interim orders are misconceived as the purported vote of no-confidence motion was never entertained. In any event, it says there is no basis to proceed to substantive hearing as there was no service of the process on all the respondents. Further there is power under Section 12 of the Local Level Government Administration Act to file a motion of no-confidence in the President of a Local-level Government. He did not elaborate nor explain the powers.
   
2. I agree with the plaintiff’s counsel that in any proceedings a condition precedent is a Notice of Intention to Defend. This is clearly stated in mandatory terms of Order 4 Rule 9(3) (b) and Order 7 Rule 2 of the National Court Rules. The notice of motion therefore is clearly incompetent and is improperly before the Court. The notice of motion is dismissed in its entirety.
   

100. I now give my decision in respect of the substantive application in this matter. The plaintiff commenced proceedings by way of originating summons in his capacity as the President of the Tabare Local Level Government on 27^th May 2016 seeking following declaratory orders and injunctions:
     
     • A declaration that the members of the Tabare Local Level Government do not have any lawful authority or powers to move a vote of no-Confidence against the plaintiff as the President of the Tabare Local level Government pursuant to Section 234(2)(a) & (b) of the Organic Law on Provincial and Local Level Government Act 1997.
       
     • A declaration that a notice of notion of no-confidence dated 13^th April 2016, issued by the respondent, Joseph Omle as the mover and endorsed by all the other respondents as members of the Tabare Local Level Government against the plaintiff is null and void and of no legal effect pursuant to Section 234(2)(a) & (b) of the Organic Law on Provincial and Local Level Government and Section 12(1)(a) & (b) of the Local Level Government Administration Act 1997.
       
     • A permanent order restraining the respondent Joseph Omle and all other respondents, their family members, relatives, tribesman, agents or servants from issuing threats or intimidation to the plaintiff, and or verbally or physically assaulting the plaintiff.
       
     • A permanent order restraining all the respondents, their family members, relatives, tribesman, agents or servants from interfering in whatsoever way with the plaintiff from performing his role as the President of Tabare Local Level Government.
       
     • Costs of the proceedings.
       
     • Such other orders this court deems fit.
       

5. The brief background to the matter is set out at paragraph two (2) of my ruling (supra). Ward Council members of the Tabare Local Level Government had proposed a notice of motion of no-confidence against the plaintiff as the president. The motion was proposed by a Councillor Joseph Omle, seconded by Councillor Tom Winol and supported by 14 other ward council members of Tabare Local Level Government. The proceedings, therefore seeks declarations that members of Tabare Local Level Government do not have any powers to move a vote of no-confidence in the plaintiff as the President of Tabare Local Level Government.

6. On the 30^th May 2016, I granted exparte interim orders against the respondents and adjourned the matter to 22^nd June 2016, for the substantive hearing of the matter.

7. The applicable laws are:

1. Section 187C, sub section (8) of the Constitution:
   

“Elections to a Local level Government shall be conducted, in accordance with an Organic Law, by the Electoral Commission”.

2. Section 29(1) (a) & (b) of the Organic Law on Provincial Government & Local Level Government (OLPGLLG).
   
   • (1) Subject to this Organic Law, the members of the legislative arm of a Local level Government shall consist of -
     
     • (a) the head of the Local-level Government who shall be elected in accordance with an Organic Law on an Act of the Parliament; and
       
     • (b) Such number of local members, representing local wards, elected in accordance with an Organic Law or Act of the Parliament......
       

100. Section 234(2)(a) & (b) of the Organic Law on National Government and Local level Government Elections(OLNGLLG Elections):
     

8. Subject to Part XXII, this Part applies to and in relation to elections of members of Local-level Governments.

9. The Head of State, acting on advice, may determine that the heads of Local-level Governments be directed elected by electors, and where such a determination is made –

1. The election of heads of Local level Governments shall be in accordance with this Part subject to such modification as its prescribed or as is required in the circumstances; and
   
2. where an election for a member of a Local-level Government and an election for the head of that Local-level Government are held simultaneously an elector may vote in respect of each election.
   
4. Section 12(1) of the Local Level Government Administration Act
   

Election of Head of a Local Level Government.

(1) The election of the head of a Local Level Government–

• (a) in respect of which a determination has been made under Section 234(2) of the Organic Law on National and Local-level Government Elections– shall be in accordance with that Organic Laws; and
  
• (b) in respect of which no such determination has been made –shall, subject to this section, be in accordance with Standing Orders of the Local-level Government from amongst the elected members of the Local-level Government.
  

(2) A member appointed under Section 29(1) (c) or (d) of the Organic Law is not eligible to be elected as the head of the Local-level Government.

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

• (a) he cases to be an elected member; or
• (b) he is dismissed from office under Section 9 or 10; or
• (c) he is dismissed from office if the Local- level Government, by two thirds absolute majority (including the appointed members), passes a motion of no confidence in him in accordance with this section.

10. Evidence

In this proceeding, the plaintiff replies on his own affidavit sworn and filed on 27^th May 2016 (court document #4.). The following findings of facts were made from the uncontested evidence of the plaintiff.

(1) The plaintiff was voted as the president of the Tabare Local Level Government, Sinasina Yongomugl District, Simbu by the voters during the general elections in 2013 (Paragraph 5(i)&(ii) of the Affidavit of Komane Kau). This evidence is not contested.

(2) The attempt by the respondents to move on a motion of no-confidence is illegal as the respondents as council members of Tabare Local-level Government do not have the powers under the law to hold such meeting to remove the plaintiff as the President of Tabare Local Level Government.

(3) There is evidence of verbal and physical harassment of the plaintiff by the respondents on several occasions that warrants the orders sought to restrain the respondents. This evidence is contained in paragraphs 14 to 20 of the Affidavit of Komane Kau filed herein.

11. The plaintiff has filed written submissions which was also orally presented at the substantive hearing. It relies on the affidavit of the plaintiff himself sworn and filed on 27^th May 2016. The contents of the affidavit particularly the fact that the plaintiff was elected by the voters at the 2013 National Local Level Government elections at the Tabare Local Level Government president is uncontested. The plaintiff was not elected by the ward council members of Tabare Local Level Government during the 2013 Local Level Government National elections. The above uncontested evidence in my view is pivotal to the outcome of this proceeding.

12. The second point is that the evidence of physical assault, harassment and intimidation of the plaintiff has also gone uncontested and has not been challenged by the respondents.

Decision
13. The law is clear, the plaintiff was elected in 2013 simultaneously under Section 234(2) (b) of the Organic Law on National Government & Local Level Government Elections.

14. Section 12(1) of the Local Level Government Administration Act (LLG Act) prescribes the process of the two modes of election of the head of the Local Level Government.

(a) Election in accordance with the Organic Law of National Government & Local Level Government elections.
(b) In the absence of (a) above, by the elected councillors after the general elections.

In this case the plaintiff as head of the Tabare Local Level Government was elected pursuant to Section 234(2) (a) & (b) of the Organic Law on National & Local Level Government Elections and Section 12(1) (a) of the Local Level Government Administration Act 1997. He therefore cannot be removed pursuant to Section 12(3) (c) of the Local Level Government Act as the respondents are attempting to do herein.

15. Section 12(3) of the Local Level Government Act says that if the Head of Local Level Government (President) is elected by the councillors under Section 12(1) (b), he vacates office or he is dismissed from office by two thirds absolute majority. This is not the case here as the plaintiff was elected under Section 12(1) (a) that is election in accordance with the Organic Law.

16. There is no provision in this section which confers powers to the Local Level Government or its councillors to pass and resolve from a vote of no confidence to remove the president as the head of the Local Level Government. This is where he is elected simultaneously under section 234(2)(b) of the Organic Law on National Government & Local - level Government and Section 12(1)(b) of the Local Level Government Administration Act 1977.

17. Therefore, clearly a Head of Local Level Government elected by an elector at the general elections cannot be removed by way of a notice of motion of no-confidence by the Local Level Government councillors.

18. Therefore, I find that the respondents are illegally attempting to convene a motion of no-confidence and are further unlawfully harassing and intimidating the plaintiff from performing his duties as the duly elected president of Tabare Local Level Government.

19. In the circumstances, I grant the orders in the substantive proceedings as follows:

1. A declaration that the members of the Tabare Local Level Government do not have any lawful authorities or powers to move a vote of No-Confidence against the Plaintiff as the President of the Tabare Local Level Government pursuant to Section 234(2)(a) & (b) of the Organic Law on Provincial and Local Level Government Act 1997.
   
2. A declaration that the Notice of Motion of No-confidence dated 13^th April 2016, issued by the Respondent, Joseph Omle as the mover and endorsed by all the other respondents as members of the Tabare Local Level Government against the Plaintiff is null and void and of no legal effect pursuant to Section 234(2)(a) & (b) of the Organic Law on Provincial and Local Level Government and Section 12(1)(a) & (b) of the Local Level Government Administration Act 1997.
   

100. A permanent order restraining the respondent Joseph Omle and all other respondents, their family members, relatives, tribesmen, agents or servants from issuing threats or intimidation to the plaintiff, and or verbally or physically assaulting the plaintiff.
     

4. A permanent order restraining all the respondents, their family members, relatives, tribesman, agents or servants from interfering in whatsoever way with Plaintiff from performing his role as the President of Tabare Local Level Government.
   
5. Costs of the proceedings.
   
6. Such other orders this court deems fit.
   

Ruling accordingly,
__________________________________________________

Avross & Co. Lawyers: Lawyers for the Plaintiff
Tonge Lawyers: Lawyers for the Defendants