Huinj v Tila [2005] PGSC 14; SC810 (21 November 2005)

SC810

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]

(1)
SCA No. 135 of 2003

BETWEEN:

BUKA HUINJ
First Appellant

AND:

HAMI YAWARI, GOVERNOR OF
SOUTHERN HIGHLANDS PROVINCE
Second Appellant

AND:

BRIAN PEBO, ACTING
ADMINISTRATOR FOR SOUTHERN
HIGHLANDS PROVINCE
Third Appellant

AND:

SOUTHERN HIGHLANDS PROVINCIAL
GOVERNMENT
Fourth Appellant

AND:

KUNDAPEN TILA
First Respondent

AND:

LAI VALLEY LOCAL-LEVEL
GOVERNMENT COUNCIL
Second Respondent

(2)
SCA No. 136 OF 2003

BETWEEN:

BRIAN PEBO, THE ACTING
PROVINCIAL ADMINISTRATOR FOR
SOUTHERN HIGHLANDS PROVINCE
First Appellant

AND:

HAMI YAWARI, GOVERNOR OF
SOUTHERN HIGHLANDS PROVINCE
Second Appellant

AND:

NAKON IPE
First Respondent

AND:

POROMA LOCAL-LEVEL
GOVERNMENT COUNCIL
Second Respondent

(3)
SCA No. 138 of 2004

BETWEEN:

DICKSON MAPU
Appellant

AND:

NAKON IPE
First Respondent

AND:

POROMA RURAL LEVEL
GOVERNMENT COUNCIL
Second Respondent

Waigani: Kapi CJ., Davani J., David J.
29^th June, 21^st November 2005

APPEAL – Civil – Procedural Error – failure to deal with motion to set aside an ex-parte order-failure to set down substantive issue for trial – orders extended to apply to another matter when the issue in question had no relevance or connection to the other matter.

SUPPLEMENTARY POWERS – s 8 (1) (e) of Supreme Court Act considered – in respect of interim order not considered by the National Court – in respect of substantive cause of action not considered by the National Court.

Legislations cited:
Supreme Court Act
Local Level Administration Act

Counsel:
D. Stevens for the Appellants
L.A. Kari for the Respondents

21^st November 2005.

BY THE COURT: There are three appeals against the decision of the National Court (Kandakasi J) dated 13^th November 2003 at Waigani. The three appeals have been heard together.

It is necessary to set out the background to the three appeals.

SCA 136 & 138 of 2003

These two appeals may be dealt with together. They relate to a dispute over the election of the President of Poroma Rural Local Level Government Council in the Southern Highlands Province in 2002.

The record indicates that out of twenty three (23) councillors that were elected in 2002 Poroma Local Level Government Council elections, there were two political factions. One faction consisting of twelve (12) members were sworn in as councillors on 2^nd August 2002. The other eleven (11) councillors were not sworn in.

At the alleged inaugural meeting of the Council scheduled on the 9^th October 2002, twelve (12) members who were sworn in attended and elected Mr Nakon Ipe (First Respondent in SCA 136 of 2003) as President and he was sworn in on the same day. It is alleged that this meeting was conducted by unauthorized officers and the meeting lacked a quorum in accordance with s 18 of the Local Level Administration Act 1987.

At a subsequent meeting on 16^th August 2002, the other political faction in the Council elected Dickson Mapu (Appellant in SCA 138 of 2004) as the President. It is alleged that this meeting was conducted under the law and therefore the Appellant is the legitimate President. This position is reflected in the letter dated 23^rd May 2003 from the Minister for Inter Government Relations.

The position is that two people claim the position of President. This created confusion over who would be sworn in as member of the Southern Highlands Provincial Assembly.

When Hami Yawari (Second Appellant in SCA 136 of 2004) was elected as Governor at the supplementary elections, he refused to recognize the First Respondent as a member of the Southern Highlands Provincial Assembly and instead recognized the Appellant (Dickson Mapu).

This prompted the First Respondent to file originating summons (OS 301 of 2003) on 8^th June 2003 for orders:

“1. That the Defendants especially the Third and Fourth Defendants, their servants or agents, or person directly associated with the Defendants be restrained from interfering with the affairs of the Plaintiffs.

2. That the Third Defendant, through the Provincial Assistant Secretary for Local Level Government continues to make available grants, entitlements and other monies, due to the Second Plaintiff is entitled to be paid.
3. That the First Plaintiffs be confirmed and accepted as the duly elected President of the Second Defendants.
4. ..”
   

On the same date, the First Respondent obtained ex-parte orders before Los J: (a) restraining the First and Second Appellants, their servants or agents from interfering with the affairs of the First and Second Respondents and (b) that the First Respondent be sworn in as a member of the Provincial Assembly on Tuesday 10^th June 2003.

The record indicates that the First Respondent was prevented from participating in the Provincial Assembly meeting and therefore he was not sworn in as ordered by Los J.

On 12^th June 2003, First and Second Appellants (in SCA 136 of 2003) filed notice of motion to set aside the ex-parte orders made by Los J. These orders are expressed in the form of final orders and there was no returnable date. The record shows that this motion was not dealt with until it finally came before Kandakasi J on Motions on 21^st July 2003. He made the following orders:

“Having heard Counsel for the Plaintiffs the Court Orders that:

1. The matter is adjourned to the 11^th August 2003 pending settlement.
2. That Hami Yawari the Fifth Defendant herein settle this matter within 24 hours.”
   

The motion to set aside the orders by Los J was adjourned to 11^th August. There is no record that this motion has ever been dealt with.

Apparently, when His Honour made these orders on 21^st July, he was not made aware of interim orders made by Los J. As a consequence of the orders, Mr Yawari after carrying out his own investigations in accordance with the orders of the National Court on 21^st July, recognized the Appellant (Dickson Mapu) as the President and directed that he would swear him in as member of the Southern Highlands Provincial Assembly.

We should point out that the result of settlement of the issue by the Governor was inconsistent with orders by Los J in favour of the First Respondent.

On 10^th November 2003, when this matter came back before the Court, Kandakasi J then became aware of the orders made by Los J and that the First Respondent was not sworn in as ordered by Los J.

Consequently, he made orders against the Governor and Assembly Clerk and Others:

(a) to explain why the orders of Los J on 8^th June were not complied with.

(b) And to explain why the matter was not resolved within 24 hours of the order of the Court on 21^st July 2003.

There is no record as to what happened to the motion to set aside the orders made by Los J. We presume that the motion remained to be dealt with.

On 13^th November, 2003 the matter came back before the trial judge. The Governor explained to the trial judge that the orders made by Los J on 8^th June 2002 were not served on him. The trial judge called for affidavit of service of these orders but no such evidence was called. The trial judge did not take the issue of service of the orders any further.

As to the orders made on 21^st July, the Governor explained in an affidavit of the settlement of the issue by recognizing Dickson Mapu as the validly elected President.

At this point, the trial judge then directed his attention to the merits of the originating summons. He outlined the issues at page 64 of AB – SCA 138 of 2004:

“According to the declaration, who was supposed to be constituting that body is the first question. Secondly based on the constitution or members present, who was elected president and when. You have two dates here. One claims he was declared president ahead of the person you are saying is the duly elected president.”

He then posed the question:

“So, we need to establish first of all what is wrong with the first declaration or first election of the president.”

Counsel explained on behalf of the Governor that the complaint with regard to the declaration of the First Respondent as President was that the meeting and election of the First Respondent was made without the knowledge of the authorized officers and at a place not authorized for that purpose. It was explained further that the election was conducted on 16^th June for the election at which the Appellant (in SCA 138 of 2004) was elected.

After this explanation, the trial judge then raised the issue whether the Governor and others had any power to disregard what happened in the election of the First Respondent and call for new election of the President? The trial judge then requested counsel to prepare arguments on this issue and adjourned the matter and gave counsel 15 minutes each to argue the issue. The trial judge heard arguments from counsel on the issue.

The trial judge ruled after a short adjournment that there was no power in the Governor and others to find the election of the First Respondent was null and void. He further made final orders that the First Respondent should be sworn in as the President.

The Appellants in SCA 136 and 138 of 2004 have appealed against the decision.

The major ground of appeal raised in these two appeals may be summarized as follows. The trial judge erred in failing to deal with the notice of motion to set aside the orders made by Los J on 8^th June 2003. Counsel for the Appellants further submits that the trial judge fell into error by not setting down the substantive matter for trial and by disposing of the substantive issues without giving the opportunity for the Appellants to be heard on the validity of the election of the First Respondent.

Notice of Motion to Set Aside Orders of Los J on 8^th June 2003.

It is clear from the record that this motion was not dealt with. The trial judge adjourned the motion to 11^th August 2003 and tried to resolve the dispute by directing the Appellant (Governor) to settle the issue within 24 hours. The Governor resolved the issue in accordance with the trial judge’s direction.

However, the result of settlement by Governor Yawari as we have pointed out earlier, was inconsistent with the orders of Los J which remained in place. We agree with counsel for the Appellants that at this point, the trial judge ought to have dealt with the notice of motion to set aside the orders and set the matter down for trial.

The motion is still pending and is yet to be deal with. We will return later to consider the appropriate order in this regard.

The Question: Whether the Governor or Other Officials Have Power to Declare Election of President Null and Void.

This issue only arose when the trial judge became aware of the ex-parte orders made by Los J. With respect, this was not an issue raised by the parties. The issue raised by the originating summons was whether the election of the First Respondent was held in accordance with the law, namely, whether there was a quorum to conduct the election? As counsel for the Appellants points out, he does not take any issue with the proposition that the Governor and others have no power to declare an election of the President of the Local Level Government null and void.

In our view, the ruling by the trial judge did not dispose of the central issue raised in the originating summons, namely, the lack of quorum when electing the First Respondent. This is a separate issue and is the cause of action pleaded in the originating summons. In giving effect to the ex-parte orders made by Los J, he did not give any consideration to the issue in the originating summons. In fact he did not have to determine this issue, he was sitting as the motion judge and he ought to have dealt with the motion to set aside the ex-parte orders. He could have discharged or varied orders to preserve the status quo and set the matter down for trial. That was all he was required to do as a motion judge. As we have already pointed out, he failed to deal with the motion.

Moreover, in making final orders, he did not give the Appellants the opportunity to be heard on the validity of the election of the First Respondent raised in the originating summons. In so doing the trial judge fell into error.

The Appropriate Orders

In considering the appropriate orders, counsel for the Respondents submits that in the event that we allow the appeal, we should not send the matter back to the National Court on the basis that it would take a long time. He submits that by the time final result is known, the next election would be due. Counsel submits that we should try the matter on the evidence before us and make a determination.

We will consider the motion to set aside orders of Los J separately from the substantive issues raised in the originating summons.

Ex-parte Orders by Los J

As the motion has not been dealt with, ordinarily we would send the motion back to the National Court to deal with. However, this motion relates to an interlocutory matter pending the trial. We would exercise our discretion under s 8 (1) (e) of the Supreme Court Act and deal with the matter. It is expedient in the interests of justice to deal with the motion.We consider that the orders made by Los J on the 8^th June 2003 ought to have been in the nature of interim orders pending the trial of the substantive issues in the originating summons. We note that for a considerable period of time, there has not been a President because of this litigation. We would preserve the status quo and direct that the originating summons be resolved as soon as possible.

This brings us to the question whether we should try and determine the originating summons. We do not consider that we should take the same approach as we did in respect of the motion to set aside the orders of Los J. The matter raised in the originating summons is a substantive cause of action and has yet to be determined. It is not on appeal to the Supreme Court and therefore does not come within the ambit of s 8 (1) (e) of the Supreme Court Act.

We appreciate that if the matter is sent back to the National Court, it will take time before the final result is known. We took this into account during the hearing of the appeal. We encouraged the parties to settle this matter out of court. In fact we adjourned and gave them the opportunity to settle. Unfortunately, they did not reach settlement. That is a matter for them.

However, the consequences are that the matter must be referred back to the National Court to try the matter. Unless the parties settle the matter, we direct that this matter be listed before the listings judge immediately in Waigani for directions to be given for trial of the originating summons in the December circuit of the National Court in Waigani.

SCA 135 of 2003

Twenty Five (25) councillors were elected in the Lai Valley Area Local Level Government Elections in 2002. At the meeting of the Council on 13^th August 2002 in the Mendi Provincial Assembly Conference Room, Kundapen Tila of Sol Ward was elected President of Lai Valley Local Level Government. He was sworn on 14^th August 2002 by the Principal Magistrate of the Southern Highlands Province and has performed duties of the office.

At a meeting organized to swear in the Presidents as a members of the Provincial Assembly on 10^th June 2002, the Governor, Hamin Yawari barred Mr Tila from being sworn in as members of the Assembly and instead Mr Buka Huinj of Injed Ward was sworn. The alleged explanation is that the Governor considered Mr Tila did not support him during the election of the Governor.

Subsequently, Mr Tila issued originating summons (OS 358 of 2003) seeking the following orders and declarations:

“1. An order that the First Defendants actions in allowing for the swearing in of the Third Defendant was ultra vires the Organic Law on Provincial and Local Level Government and is void ab initio.

2. A Declaration that the Plaintiff is duly elected president of the Second Plaintiff.
3. An order that the Plaintiff as the duly elected President of Lai Valley Local Level Government be sworn in as an assembly member of the Southern Highlands Provincial Government Assembly.
4. That the Defendants, especially the First and the Second Defendants, their servants or agents, or any other person or persons directly or indirectly associated with Defendants be restrained from interfering with the affairs of the Plaintiffs.
5. That the Defendants, through the Provincial Assembly Secretary for the Provincial and Local Level Government and District Affairs continue to make available grants, entitlements and other monies quarterly to the Second Plaintiff.
6. ..”
   

In this matter, there was no interim or ex-parte orders as in the previous appeal. In fact there was no motion before the trial judge for consideration. What was before the trial judge was the motion to set aside the ex-parte orders of Los J in the previous appeals (SCA 136 and 138).

The record indicates that there was no direction by the trial judge to jointly consider this matter with OS 301. It is difficult to see how this matter could be joined with OS 301 when the matter before the Court was a motion to set aside an ex-parte orders in OS 301.

During the course of dealing with OS 301, the trial judge in fact did ask about this matter.
At page 14 of transcript of 10^th November:

“Now, OS 358, what is the story?

MR KARI: That your Honour, it is a similar story. The plaintiff here, again, supported another provincial candidate and although he was elected by a majority of 16 to 8 as the president of Lai Valley Local Level Government Council was refused entry to the Assembly to be sworn in as the Provincial Assembly member.

HIS HONOUR: Do you also have an interim order or not?

MR KARI: Orders could not be – we have yet to get an order, your Honour.

HIS HONOUR: All right, so that is slightly different.

MR KARI: That is slightly different.

HIS HONOUR: Okay.”

In our view, that ought to have been the end of the matter and would have no further connection with the motion to set aside the ex-parte orders of Los J in OS 301.

However, when dealing with the issue of whether the Governor and others had power to declare the election of the President null and void in OS 301, the trial judge extended the orders to apply to OS 358. We already held that the trial judge fell into error in respect of OS 301. Counsel for the Respondent conceded that if the appeal is upheld in respect of OS 301, the appeal in respect of OS 358 would be successful. Consequently we would uphold this appeal on the same grounds.

Moreover, the motion before the trial judge in OS 301 had nothing to do with OS 358 and he ought not to have extended the orders to OS 358.

The result is that we would allow the appeal and direct that the originating summons should immediately be set down before the listing judge in Waigani to fix a date of trial in the December circuit of the National Court in Waigani.

Costs
The question of costs was argued in respect of all appeals. The principle argument by counsel for the Appellants is that the cost should follow the event.

On the other hand, counsel for the Respondent submits that if there was any error it was an error by the trial judge and cannot be attributed to his client. We consider that counsel for the Respondents invited His Honour to adopt the course taken by the trial judge. In the circumstances, we conclude that the Respondents should pay the costs of the Appellants.

Final Orders

In the result, the formal orders of the Court are:

In respect of SCA 136 & 138 of 2003

1. The appeals SCA 136 & 138 of 2003 are allowed.
2. The decision of the National Court dated 13^th November 2003 is quashed.
3. OS 301 of 2003 is immediately listed before the Listings Judge in Waigani for directions and to fix a date of hearing in December sittings of the National Court in Waigani.
4. The status quo at the present time is preserved until the substantive matter is tried.
5. The Respondents pay Appellants’ costs of the Appeals.
   

In respect of SCA 135 of 2003.

1. The appeal SCA 135 of 2003 is allowed
2. The decision of the National Court on 13^th November 2003 is quashed.
3. The status quo at the present time is preserved until the substantive matter is tried.
4. OS 358 of 2003 is immediately listed before the Listings Judge in Waigani for directions and to fix a date of hearing in the December sittings of the National Court in Waigani.
5. The Respondents to pay Appellants’ costs of the Appeal.
   

_______________________________________________________________
Lawyers for the Appellants : STEVENS LAWYERS
Lawyers for the Respondents : PNG LEGAL SERVICES LAWYERS