Goso v Peneha [2024] PGNC 119; N10768 (3 May 2024)

N10768

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 120 OF 2022

BETWEEN
MINAHO GOSO - Ward 8 Councilor and Former Gahuku Local Level Government President
Applicant

AND
GIDEON PENEHA - Ward 7 Councilor and Newly Elected Gahuku Local Level Government President
First Respondent

GAHUKU LOCAL LEVEL GOVERNMENT
Second Respondent

BENSON IMARA - Chief Executive Officer of Goroka District Development Authority
Third Respondent

GOROKA DISTRICT DEVELOPMENT AUTHORITY
Fourth Respondent

Goroka: Collier J
2024: 1^st & 3^rd May

JUDICIAL REVIEW – Local Level Government – Motion of No Confidence against the Head or President of Gahuku Local Level Government – s 23 Local level Government Act 1977 – Whether processes in calling and convening meeting contravened Local Level Government Administration Act 1977 and Standing Orders and Rules

Facts

The applicant commenced proceedings for judicial review of administrative processes followed by the First, Second, and Third Respondents in convening a meeting that resulted in a motion of no confidence being moved and voting out the applicant as the president of the Gahuku Local Level Government. The applicant claimed that the meeting was invalid as it was not convened in accordance with statutory processes as set out in the Local level Government Act 1977 and the Gahuku Local-Level Government Standing Orders & Rules for Debate.

Held:

The meeting of 24 May 2022 was not convened in accordance with provisions of the Local level Government Act 1977 and the Gahuku Local-Level Government Standing Orders & Rules for Debate. It followed that the meeting of 24 May 2022 was invalid and the decision made by the Second Respondent was quashed. The applicant was entitled to the orders sought.

Cases Cited:

Goso v Peneha [2022] N9977
Zaliong v Deyamos Local Level Government Council [2004] N3121

Legislation:

Local Level Government Administration Act 1977 s 23

Counsel:

Mr S Ifina, for the Applicant
Mr B Nahupa, for the Respondents

3^rd May 2024

1. COLLIER J: The proceedings currently before the Court were commenced by an Originating Summons filed by the applicant, Mr Gaso, on 31 May 2022. In that Originating Summons Mr Gaso sought leave for judicial review of administrative processes followed by the First, Second, and Third Respondents which resulted in convening a meeting on 24 May 2022, at 12:15pm, held at Goroka District Administration Conference room. At that meeting a Motion of No Confidence in Mr Gaso as President of Second Respondent was moved and he was voted out, and a new President who is the First Respondent was elected on the same date, and then sworn in thereafter on 27th May 2022.
   
2. The application for leave to proceed by way of judicial review was granted by Mugugia AJ on 11 October 2022: Goso v Peneha [2022] N9977.
   
3. Now before the Court is a Notice of Motion filed on 14 April 2023 by Mr Gaso, in which he seeks the following orders:
   
   1. Pursuant to Order 16, Rule 3(1) of the National Court Rules and Order 16 Rule 5(1) of the National Court Rules, an order in the nature of certiorari to bring up to this Court and quashing the decisions of the Second Respondent made on the 24^th May 2022, wherein;
      
      1. The Second Respondent decided and convened a General Meeting that held a Local Level Government Vote of No Confidence in which the Applicant was voted out as the Head or President of Second Respondent and the First Respondent was voted in as the Head or President of Second Respondent.
         
   2. Consequently, an order re-instating the Applicant forthwith to the position of Head or President of Second Defendant, and the Third and Fourth Respondents to facilitate for the re-instatement process.
      
   3. Any other orders the court sees fit.
      
   4. Cost against the Respondents
      
4. Before turning to the grounds of review before the Court it is useful to briefly have regard to background facts.

BACKGROUND FACTS

5. The background facts are not in dispute. It is convenient to have regard to the affidavit of the applicant filed 14 April 2023 which sets them out.
   
6. The applicant was elected as the Ward 8 Councillor of Gahuku Local Level Government (LLG) of Goroka District, Eastern Highlands Province in the National Local Level Government Election of 2019.
   
7. On or around 14th August 2019 the applicant was elected by the ward councillors of Gahuku LLG as Head, or President of Gahuku LLG.
   
8. By letter dated 17 November 2020 to the third respondent Mr Benson Imara, who was the District Administrator Goroka District, signed by four councillors, those councillors stated that they wished to move a vote of no confidence in the applicant. The third respondent forwarded that letter and motion to the Manager of Gahuku LLG by letter dated 8 March 2021 requesting him to convene a meeting of the Gahuku LLG on 24 March 2021 to deliberate on the issues.
   
9. The applicant was informed of the proposed motion of no confidence in him as President of Gahuku LLG, and a request for a meeting for that purpose. The applicant deposed that this letter was served on him on 25 February 2021. In a letter to Mr Imara dated 18 March 2022, the applicant set out a rebuttal to the filed notice of motion, including that the CEO did not have powers to request him to call a meeting for the purpose of deliberating on the vote of no confidence and the applicant would deal with it as an in-house matter. No meeting was convened.
   
10. On 23 May 2022 the applicant was served with a letter dated 19 May 2022 from seven Ward Members/Councillors of Gahuku LLG including Mr Peneha. The letter was addressed to the applicant as the President of the Gahuku Rural LLG, and was as follows:
    

CONVENING OF GENERAL MEETING TO MOVE VONC MOTION – FINAL DATE FIXING & FINAL WRITTEN NOTICE TO THE GAHUKU LLG PRESIDENT
Hon Minaho Goso, WM

We are the undersigned Ward Member of Gahuku Rural LLG bring the above subject to your attention to consider and thus make yourself available to chair this General Meeting (GM).

You are urged to attend and to make this constitutional process be effected so as to comply with the Organic Law on PLGA Act 1994. This is your duty as President of this rural LLG to make it happen.

Mt Michael and Unavi LLGs in Lufa District have already effected their VONC despite moving it at the same time as our but ours is however still pending due to indefinite and unjustified delays.

Hon Minaho Goso, WM

We have the GM quorum and have fixed a date (Tuesday, May 2022) and time (10:00am-ll:00am) to convene this GM at the Bird of Paradise Hotel as per our open request made to the DDA.

If you fail to attend this final fixed date, the Deputy President (DP) will convene the GM as stipulated in the Organic Law ... PLGA Act 1994. Meaning, the chairing of this GM by the DP is constitutional.

Whatever queries you may have ensuing this GM outcome without your presence, you have the right to seek legal interpretation. Otherwise, this VONC must take precedence over other agendas.

Hon Minaho Goso, WM

Owing to indefinite delays of this VONC, we have already missed ample time needed to address other important issues affecting the LLG. This GM must be convened sooner without further delays.

Your presidency was mandated by Ward Members via a constitutional process and you must prove your worth in this VONC whether to retain it or relinquish it. By the same, you must face off.

In this GM, we will move the VONC motion and also declare our Alternate President as per the Standing Orders and the Organic Law on PLGA Act 1994. Furthermore, nominations will be done and voting will proceed at the same time same speed.

Hon Minaho Goso, WM

To ensure this GM is compliant with stated by-laws, all the relevant local authorities like the Gahuku LLG Manager, DA, DT, DPLGA Advisor and Director have been notified and they will attend.

If you fail your duty as President to convene this GM, we have no option but to proceed as planned. We are informing priory so as to avoid later complications and inconvenience on our path.

We have already written to you once to convene this GM and this notice is the final notice. You are firmly urged to attend and make this GM possible.

Hon Minaho Goso, WM

Finally, we remind that if this GM fails to happen on the final fixed date, we will take a Court Order to direct you to convene this GM and thus effect the VONC. This is the last action plan.

The Court will adjudicate and interpret who is at fault and who is not. We hereby further forewarned that if the Court intervene... to order this VONC, other issues will follow suit by the Court.

You have already notified us in our last GM (Wednesday, 11th May 2022) at the Goroka District Conference Room that you will sue us. Likewise, we hereby notify you in advance to get prepared.

With that, we are not enemies but brothers. We are mandated leaders and not tribal leaders. We are fighting a democratic fight and within the confines of the laws. Let's play by the rule book.

Thank you President.

11. The Manager of Gahuku LLG advised all the LLG members on 24 May 2022 that the venue at the Bird of Paradise Hotel was not available and that the meeting would be conducted at the Goroka District Services Board Room.
    
12. On 24 May 2022 the applicant attended the meeting as Chairman, to address the agenda of Motion of No Confidence dated 18 November 2020. During that meeting debates occurred regarding the motion of no confidence and the members casted their votes that resulted in the first respondent (Gideon Peneha) scoring the highest number of votes (is the voting results were, out of 8 ward council members, 5 voted in favour of first respondent, 2 voted in favour of the applicant, and 1 vote was informal). The first respondent was declared the new elected Head or President of second respondent and was sworn in as President on 27 May 2022.
    
13. The applicant never issued any notice paper of the meeting.
    

GROUNDS OF JUDICIAL REVIEW

14. The applicant seeks judicial review on the following grounds:
    
    1. The First, Second, and Third Respondents all erred in law in that they have not complied with section 23(3) of the Local-Level Government Administration Act 1997, and Clauses 5, 6, 10 (2), (3) of the Gahuku Local-Level Government Standing Orders & Rules for Debate, which says that only the Head or President of LLG can convene LLG meetings.
       
    2. The members of the Second Respondent including the First Respondent erred in law when they issued written letter to Plaintiff requesting him to attend a meeting they themselves fixed on 24th May, 2022, at the fixed time between the hours of 10:00am and 11:00am, and at a fixed venue which was to be at Bird of Paradise Hotel, when section 23(3) of the Local-Level Government Administration Act 1997, and Clauses 5, 6, 10 (2),(3) of the Gahuku Local-Level Government Standing Orders & Rules for Debate, says only the Head or President of LLG have the power to convene LLG meetings.
       
    3. The Third Respondent erred in law and fact when he entertained the request letter dated 19th May, 2022, from members of the Third Respondent including the First Respondent, by allowing the LLG meeting to go ahead on the 24th May, 2022, when there was no compliance of mandatory requirements under section 23(3) of the Local-Level Government Administration Act 1997, and Clauses 5, 6, 10 (2),(3) of the Gahuku Local-Level Government Standing Orders & Rules for Debate.
       
    4. The First, Second, and Third Respondents lack jurisdiction thus commit an error of law as stated above when they convened the meeting on 24th May, 2022, which in that meeting addressed the agenda of vote of no confidence in the Plaintiff and voted him out as President and elected the First Respondent as the new President.
       

SUBMISSIONS

15. At the hearing Counsel for the applicant and the defendants handed up written submissions and briefly addressed those submissions.
    
16. The submissions of Counsel focussed on s 23(3) of the Local Level Government Administration Act 1977 (the Act). Section 23 provides as follows:
    

23. MEETINGS OF A LOCAL-LEVEL GOVERNMENT.
(1) A local-level Government shall meet within 15 days of the day fixed for the return of the writs following a general election to Local-level Governments.

(2) A Local-level Government shall meet at least once in each period of three months.

(3) Unless otherwise provided, a meeting of a Local-level Government shall be called by the head of that Local-level Government.

(4) A Local-level Government shall have additional meetings--

(a) where not less than one third of the total number of members of the Local-level Government make written request to the head of the Local-level Government; or
(b) where the head of the Local-level Government gives notification; or
(c) in accordance with the provisions of the Standing Orders.

(5) Unless the Minister gives written authority to the contrary a meeting of a local-level Government shall not be held at the same time as a meeting of the Parliament or of the Provincial Assembly.

(6) A meeting of a Local-level Government is open to the public and to representatives of the media unless the local-level Government for a special reason otherwise resolves at the meeting.

(7) The person presiding at a meeting of a local-level Government may-

(a) exclude from the meeting a person who, in his opinion, is behaving in a disorderly manner, or may require such person to withdraw from the meeting; and
(b) call on a member of the Police Force or a local-level Government officer to eject any such person refusing to withdraw from the meeting or any other person who is present in contravention of a resolution referred to in Subsection (6).

17. The submissions of Counsel further addressed Clauses 5, 6 and 10(2)(3) of the Gahuku Local Level Government Standing Orders & Rules for Debate. These provisions are as follows:
    

5. AGENDA FOR MEETING

The chief executive officer shall, with the approval of head of the Local-level Government, prepare the agenda for all meetings of the Local level Government and its. committees and shall circulate copies of the agenda together with the minutes of the previous meeting, whenever possible, prior to the next meeting.

6. NOTICE PAPER

The chief executive officer shall before each sitting give to each councillor a Notice Paper showing the matters to be brought before the Local-Level Government.
...

10. OTHER ME£TINGS OF THE LOCAL-LEVEL GOVERNMENT
(1) ...
(2) The head of the Local-Level Government shall convene a meeting of the Local-Level government within 14 days of receiving written request from not less than one third of the total number of members of the Local-level Government, or withing 14 days of receiving a written request from the chief executive officer of the Local-Level Government.

(3) The head· of the Local-Level Government may, after giving seven days written notice to all Councilors of the Local-level Government or may after giving seven days written notice to the chief executive officer, convene a meeting of the Local-Level Government.

18. In summary, Counsel for the applicant submitted:
    • The only person who had authority to convene the LLG meeting was the applicant, who was then the Head of Gahuku LLG.
    • The applicant had no choice but to attend the meeting and stand as Chairman.
    • The processes followed by the respondents in convening the LLG meeting of 24 May 2023 were in total breach of the mandatory statutory processes.
19. Counsel for the respondent submitted, in summary:
    • The applicant had, by his overt act of attending and chairing the meeting of 24 May 2022, discharged his obligations under relevant laws to cause general meetings and ratified the notice of meeting dated 19 May 2022.
    • Section 23(4) provides that, on written request from one third of the members of the Gahuku LLG or the chief executive officer of the Gahulu LLG, a meeting is to be convened by the President within 14 days from receipt of such request.
    • The third respondent requested a date to be fixed for a meeting to consider a vote of no confidence by cover letter dated 17 November 2020. A further letter dated 8 March 2021 was sent to the Manager of Gahuku LLG requesting Manager to call a general meeting as requested by the LLG members. The applicant was aware of the request, and by letter dated 18 March 2021 refuted all allegations and told everyone that none of them had powers to call the meeting. As the applicant had failed to call any general meeting of the LLG as requested the meeting of 24 May 2022 was called voting him out as president.
    • The respondents also relied on the common law doctrine of ratification and acquiescence as explained in Johns v Thomason [1976] PNGLR 15 and subsequently Kove v Po’o [2022] PGSC 37.
    • It follows that the request to call a general meeting was properly given to the applicant under s 23(4)(a) of the Act, and that he had ratified and authorised the meeting by attending.
      

CONSIDERATION

20. The four grounds of review on which the applicant relied have a common thread – namely that the calling and convening of the meeting of 24 May 2022 by anyone other than the applicant as President contravened the Act and the Standing Orders & Rules for Debate for Gahuku Rural LLG.
    
21. The case of Zaliong v Deyamos Local Level Government Council [2004] N3121 is analogous to the present case. In that case the plaintiff, who was the former president of the Deyamos Local Level Government Council in the Wasu District of the Morobe Province and also the Deputy Governor of the Morobe Provincial Government, sought declarations that a Vote of No Confidence Motion and the process leading to such motion was of no effect as it was contrary to the procedure set out under the Local level Government Administration Act 1997 and Standing Orders dated March 1999.
    
22. The Vote of No Confidence Motion against the plaintiff was convened and served on Mr Engam, the Acting District Administrator on 28 May 2004. Between 29 May 2004 and 5 June 2004, Mr Engam notified councillors that the meeting was scheduled for 11 June 2004. The evidence before the court was that the Motion was served on the plaintiff on 29 May 2004.
    
23. On 11 June 2004, Mr Zaliong was voted out as President of the Deyamos LLG Council in a vote of no confidence. The issues before that Court were:
    
    1. Whether Sam Engam, the Acting District Administrator, is the Chief Executive Officer of Kabwum District within the meaning of the Standing Orders and the Organic Law on Provincial Governments and Local level Governments.
       
    2. Whether the proposer of the motion of No Confidence physically served the petition on the Chief Executive Officer as required under Section 39(1) of the Standing Orders.
       
    3. Whether fourteen (14) days’ notice of the motion of No Confidence against the plaintiff was given in accordance with Section 39 (3) of the Standing Orders and Section 12(4)(a)(ii) of the Local level Government Administration Act.
       
    4. Whether copies of the motion of No Confidence were delivered or given to the members ten (10) days prior to the meeting in accordance with Section 39(2) of the Standing Orders.
       
    5. Whether Sam Engam had powers to call and chair the meeting on 11 June 2004.
       
24. I note that in that case, the Standing Orders relevant to Deyamos LLG Council provided that the motion must be served on the Chief Executive Officer 14 days before it is to be considered by the LLG Council. This requirement does not appear to be in issue in the present case.
    
25. Mr Engam was the Acting District Administrator of the Deyamos LLG Council. Mr Engam called and chaired the meeting that was held on 11 June 2004. Mr Engam however deposed that a meeting on 11 June 2004 had already been proposed by the Council.
    
26. In consideration of whether Mr Engam had the powers to convene and chair the meeting on 11 June 2021, Gabi AJ considered:
    
    22. The law is clear. It is the head of the Local level Government who is empowered to call meetings. He/she shall preside at all meetings at which he/she is present. (see s 3 of the Standing Orders, s 23 (3) of the Local level Government Act and s 32 of the Organic Law on Provincial Governments and Local level Government). These are mandatory requirements.
        
    23. There are two situations where the Chief Executive Officer shall chair a meeting First, the election of the head of the Local level Government after a General Election (See Sections 8 to 11 of the Standing Orders). Second, where the head and deputy head of the Local level Government are absent. The Chief Executive Officer shall chair the meeting to elect a member to preside at that meeting (see Section 14 of the Standing Orders).
        
    24. I find that Sam Engam, the Acting Chief Executive Officer, has no powers to call the meeting and preside at the meeting held on 11 June 2004. The meeting was, therefore, illegal and void.
        
27. For that reason, and for a failure to comply with s 39 of the Standing Orders (an issue not relevant to the present case), Gabi AJ found that the conduct of the Vote of No Confidence was contrary to the requirements set out under the Standing Orders, Local Level Government Act, and the Organic Law on Provincial Governments and Local level Government. As such, Gabi AJ made declarations that:
    
    1. That the motion of No Confidence moved against the plaintiff and the election of the first defendant as the President of Deyamos Local level Government Council on the 11 June 2004, is illegal and void ab initio and of no effect.
       
    2. That the whole process of the motion of No Confidence is contrary to the Standing Orders, the Local level Governments Administration Act and the Organic Law on Provincial Governments and Local level Governments.
       
    3. That the plaintiff is still the President of Deyamos Local level Government Council.
       
    4. That the plaintiff is still the Deputy Governor of the Morobe Provincial Government.
       
28. In my view the same principles applied by Gabi AJ are relevant in this case. The meeting of 24 May 2022 was not convened in accordance with the Act and the Standing Orders & Rules for Debate for Gahuku Rural LLG. Rather it appears that it was convened by the third respondent Mr Imara and/or the Manager of Gahuku LLG.
    
29. I am not persuaded that, by the act of the applicant in attending the meeting on 24 May 2022, the provisions of the Act and the Standing Orders & Rules for Debate for Gahuku Rural LLG relating to the calling of meetings were satisfied. In particular, whether or not the applicant acquiesced or not to the calling of the meeting by third respondent within 14 days is irrelevant unless the third respondent called the meeting with the consent of the applicant or impliedly at his direction, which plainly was not the case. As Gabi AJ observed, the process set out in the Act and the Standing Orders & Rules is clear and mandatory. Provisions concerning ratification and acquiescence by the President have no place in that context.
    
30. I note that the Act and the Standing Orders & Rules for Debate for Gahuku Rural LLG also apply where the President fails to call a meeting in accordance with those provisions. It is open for an application to be brought to the Court seeking enforcement of those provisions relating to the calling of meetings, where the President does not act appropriately in relation to calling such meetings.
    
31. It follows that the meeting of 24 May 2022 was invalid. The applicant is entitled to the orders he seeks. Costs follow the event.
    

THE COURT ORDERS THAT:

1. Pursuant to Order 16 Rule 3(1) of the National Court Rules and Order 16 Rule 5(1) of the National Court Rules, an order in the nature of certiorari is issued to quash the decisions of the Second Respondent made on 24 May 2022 wherein a general meeting was convened and held, and a vote of no confidence passed in which the applicant was voted out as the Head or President of the Second Respondent and the First Respondent was voted in as the Head or President of the Second Respondent.
2. The applicant be re-instated forthwith as the Head or President of the Second Respondent, and the Third and Fourth Respondents facilitate the re-instatement process.
3. The respondents pay the costs of the applicant of and incidental to the proceedings on a party-party basis.

____________________________________________________________________

Mr S Ifina: Lawyer for the Applicant
Mr B Nahupa: Lawyer for the Respondents