Undialu v Potape [2017] PGNC 111; N6751 (7 June 2017)

N6751
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (EP) NO. 8 OF 2016

BETWEEN

HON. PHILIP UNDIALU
OPEN MEMBER
First Plaintiff

AND

WATSON EBELA
CLERK OF HELA PROVINCIAL ASSEMBLY
Second Plaintiff

AND

HON. FRANCIS POTAPE
OPEN MEMBER FOR KOMO-MAGARIMA
First Defendant

AND

THOMAS POTAPE
DEPUTY GOVERNOR OF HELA PROVINCE
Second Defendant

AND

FILBERT TUYA
Third Defendant

Waigani: Makail, J

2017: 3^rd April & 7^th June

ELECTION – Vacancy in office of Provincial Governor – Election of Provincial Governor – Validity of election of Provincial Governor – Dispute of – Organic Law on Provincial Governments and Local-level Governments – Sections 19 & 21

ELECTION – Notice of meeting of Provincial Assembly – Service of – Mandatory – Breach of – Effect of – Meeting of Provincial Assembly null and void – Organic Law on Provincial Governments and Local-level Governments – Sections 10 (5) & 21

Cases cited:
Governor Anderson Pawa Agiru v. Hon. Francis Potape & Ors: OS No 821 of 2015 (Unnumbered & Unreported Judgment of 14^th June 2016)
Hon. Francis Potape & Ors v. Hon. Philip Undialu & Ors (2016) N6405

Counsel:

Mr. Goiye Gileng, for Plaintiffs
Mr. Philip Ame, for Defendants

JUDGMENT

7^th June, 2017

1. MAKAIL, J: This case is about an ongoing tussle between the First Plaintiff and First Defendant over the Governorship of Hela Province but hopefully by this decision, it will end. This is the third time the dispute over the Governorship has come to Court for determination and is indicative of the parties’ unwillingness to resolve it. They must be told in no uncertain terms that they do not have a free rein to do what they please but must be reminded to abide by the rule of law. And it will come to a point where the Court will consider declaring each of them a vexatious litigant if they persist.

2. On the first occasion, on 14^th June 2016 the National Court constituted by Kariko J held that the election of the First Defendant as Provincial Governor of Hela Province was illegal, null and void. His Honour found that the meeting of the Hela Provincial Assembly held on 29^th December 2015 and elected the First Defendant did not comply with the Standing Orders of the Hela Provincial Assembly (“SOs”).

3. This was because his Honour found that a letter purporting to be a notice to call a “special meeting” of the Assembly was not a notice of meeting and secondly, no notice of meeting was given to the Members of National Parliament who were also members of the Provincial Assembly. This decision was made in the proceedings commenced by Governor Anderson Agiru: see Governor Anderson Pawa Agiru v. Hon. Francis Potape & Ors: OS No 821 of 2015 (Unnumbered & Unreported Judgment of 14^th June 2016).

4. The second was on 6^th September 2016, where this Court, amongst other reasons, held that the election of the First Plaintiff or First Defendant as Governor of Hela Province in the meeting of the Provincial Assembly on 5^th July 2016 was illegal, null and void. Following that decision, it was necessary for the Provincial Assembly to convene a meeting to elect a Governor. The Provincial Assembly Clerk was to fix a date, time and place for the meeting: see Hon. Francis Potape & Ors v. Hon. Philip Undialu & Ors (2016) N6405.
5. It was anticipated that the decision would pave the way for the parties to resolve the dispute at the Provincial Assembly. It was not to be. After the meeting of the Provincial Assembly, the dispute took a different turn, this time by the parties swapping positions and the Plaintiffs who were Defendants in the earlier proceedings now disputing the election of the First Defendant as Governor.

6. From the various affidavits filed by the parties and marked exhibits “P1” to “P7” and “D1” to “D4”, following the Court decision on 6^th September 2016 and due to the Second Plaintiff “not in his office in Tari since the end of August 2016”, on the same day, the Second Defendant requested an urgent meeting of the Provincial Assembly to be held on 13^th September 2016 in Tari and that the Third Defendant in his capacity as the Deputy Clerk of the Provincial Assembly prepare a notice to all members of the Assembly to attend: see affidavit of the Third Defendant (exhibit “D2”).

7. The Third Defendant prepared a notice directed to all 12 members of the Assembly. A copy of the notice is placed before the Court as annexure “B” to the affidavit of the Third Defendant (exhibit “D2”).

8. But not all of the members were served the notice. Those not served were the First Plaintiff, Hon. James Marape, Rev. Olene Yawai and Charles Apalu. The reason was that they could not be located.

9. On 13^th September 2016 at about 10:15 am, the Provincial Assembly convened the meeting. According to the minutes of the meeting which may be found at annexure “C” to the affidavit of the Third Defendant (exhibit “D2”), 9 of the members attended the meeting. They included the First and Second Defendants.

10. Those absent were the First Plaintiff, Hon. James Marape, Rev. Olene Yawai and Charles Apalu even though the Third Defendant saw Charles Apalu in Tari that day and verbally informed him of the meeting.

11. The First Defendant was elected Governor unopposed at the meeting by those present. Those absent said that they were not informed of the meeting. The Second Plaintiff was absent from Tari because he was in Port Moresby pursuing an appeal in the Supreme Court against this Court’s decision of 6^th September 2016.

12. By the originating summons filed 14^th September 2016, the Plaintiffs brought up a number of issues for consideration. These may be deduced from the kind of orders they seek in the originating summons. Summarising them, they seek declarations that:

(a) there were only three meetings of the Provincial Assembly held in 2016, they being 19^th January, 28^th June and 5^th July.

(b) the next meeting of the Assembly was 4^th August 2016.

(c) an additional meeting of the Assembly within the meaning of Section 12 of the Provincial Government Administration Act was held on 4^th August 2016.

(d) any purported additional meetings including the one on 13^th September 2016 is null and void because:

(i) there was no written request made to the Chairman of the Provincial Assembly to call a meeting;

(ii) if there was, it did not have more than one-third of the total number of the members of the Provincial Assembly’s approval;

(iii) there was no notice given by the Chairman of the Assembly of the meeting.

(e) the meeting held on 13^th September 2016 is null and void.

(f) the First Plaintiff did not receive the notice for the meeting of 13^th September 2016.

(g) the Third Defendant was not authorised to call and conduct the meeting as there was no vacancy in the office of the Provincial Assembly Clerk, the office was occupied by the Second Plaintiff, and

(h) the election of the First Defendant as Governor is null and void.

13. One of the issues is the question of authorised person to call the meeting. The Plaintiffs contend it is the Second Plaintiff but he did not. Instead, it was the Third Defendant who called the meeting at the request of the Second Defendant. The Defendants contend that the Third Defendant was authorised to call the meeting.

14. The Plaintiffs placed great emphasis on the point that there was no vacancy in the office of the Clerk to warrant the Third Defendant as the Deputy Clerk to act or assume the powers and functions of the Clerk and call the meeting. They point to the fact that at the material time, the Second Plaintiff was aggrieved by the Court’s decision of 6^th September 2016 and was in Port Moresby pursuing an appeal in the Supreme Court against it. This did not displace him from the position of Assembly Clerk.

15. The Defendants contend that because the Second Plaintiff was absent from work between the end of August and 13^th September last year, the Third Defendant stepped in and performed the powers and functions of the Assembly Clerk and called the meeting.

16. In any case, further developments took place since that meeting and these were that, on 20^th February 2017 by a decision of the Provincial Assembly the First Plaintiff and Rev. Olene Yawai were removed from the Assembly for missing five consecutive Assembly meetings. The Second Plaintiff was terminated for absenteeism.

17. The Defence contend that they should effectively be removed from these proceedings as they lacked the requisite standing to maintain them and the proceedings should be dismissed pursuant to the Court’s discretionary powers under Order 5, rule 9 (b) and Order 12, rule 1 of the National Court Rules.

18. Notwithstanding this, they contend that the Second Plaintiff chose to make himself unavailable to perform his powers and functions as Assembly Clerk when he decided to side with the First Plaintiff led faction, pursued the appeal in the Supreme Court against this Court’s decision and did not co-operate with them to bring normalcy and order to the Provincial Assembly.

19. While I agree that the question of who is authorised to call the meeting is one of the issues for consideration, I consider it not necessary to answer it. A more fundamental question which is pivotal to the question of validity of the election of the First Defendant as Governor is, whether the notice of the meeting was served on all of the members of the Assembly. In my view, the requirement to serve a notice is mandatory.

20. The Defendants through the Third Defendant unreservedly concede that they did not serve the notice on all of the members of the Assembly. The members not served were the First Plaintiff, Hon. James Marape, Rev. Olene Yawai and Charles Apalu. They could not locate them. In my view, even if in the case of Charles Apalu, a verbal advice of the meeting is not sufficient.

21. In my view, the consequence is that, not only were these members denied the right to participate in the meeting but the right to vote and/or nominate for the Governor’s seat, particularly the First Plaintiff who had shown interest in contesting that seat since it became vacant on the passing of late Anderson Agiru early last year: see Section 10 (5) of the Organic Law on Provincial Governments and Local-level Governments (“OLP&LLG”).

22. I am of the further view that the failure to serve the notice on these members is a gross breach of the election process under Section 21 of the OLP&LLG and renders the election of the First Defendant void. It follows his election as Governor must be declared void.

23. The other issues are the number of meetings the Provincial Assembly can hold in a year and the procedure for calling a meeting. These issues are raised at paragraphs 1, 2, 3, 4, 5, 6, and 7 of the originating summons. The Plaintiffs contend that the meeting of 13^th September last year exceeded the prescribed number of meetings in one year and the election of the First Defendant in the meeting of 13^th September breached the prescribed limit and is void.

24. The short answer to that is, as a result of the Court’s decision of 6^th September, it was necessary to hold a meeting to elect the Governor. On the other hand, to accept the Plaintiffs’ contention would be nonsensical because there would be no other avenue for the Provincial Assembly to elect a Governor. It will mean Hela will be without a Governor until the next General Election. I find the Plaintiffs’ contention misconceived and dismiss it.

25. As to the procedure for calling a meeting not been complied with, it is not necessary to consider it because as was found, the meeting and election of the First Defendant was flawed right from the start when the Defendants did not give notice of the meeting to the First Plaintiff and three other members of the Assembly.

26. Finally, the issue brought up by the Defendants in their defence is in relation to the lack of standing of the Plaintiffs to maintain these proceedings. It was raised as a preliminary application by notice of motion to have these proceedings dismissed in its entirety before the substantive matter.

27. It can be disposed of in this way. The proceedings were commenced by the Plaintiffs prior to their purported removal from the Provincial Assembly, in the First Plaintiff’s case as a member and in the case of the Second Plaintiff, as Assembly Clerk. Their removal is not the subject of these proceedings, and in my view, inappropriate for this Court to consider.

28. Given these findings, I am not satisfied that the orders sought at paragraphs 1, 2, 3, 4, 5, 6, 7 and 11 of the originating summons which are summarised at [12 (a) to (d)] above should be granted. They are refused. As to the order sought at paragraph 9 of the originating summons [12 (g)] above, it is not necessary.

29. The only order this Court grants is, a declaration that the election of the First Defendant as Governor of Hela Province is null and void.

Judgment and orders accordingly.
_______________________________________________________________
Posman, Kua, Aisi Lawyers: Lawyers for Plaintiffs
Ame Lawyers: Lawyers for Defendants