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Yanyan v Western Highlands Provincial Government [1991] PGNC 86; [1991] PNGLR 328; N1006 (2 September 1991)

N1006

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WANKANI YANYAN

V

WESTERN HIGHLANDS PROVINCIAL GOVERNMENT

Mount Hagen
Woods J

26 July 1991
2 September 1991

LOCAL GOVERNMENT - Meetings of Council - Scheduled meetings for year -Ministerial powers - No power to call additional meetings - Local Government Act Adoption Act 1991 (Western Highlands Province), s 25.

The Provincial Minister for Local Government does not have power under the Local Government Act Adoption Act 1991 (Western Highlands Province) to call meetings of councils (apart from the first meeting) or to call meetings in addition to those scheduled under the Act.

Summons

This was an application for declaratory orders relating to the validity of proceedings at a local government council meeting.

Counsel

M A Pryke, for the applicant.
M Maladina, for the respondent.
Cur adv vult

2 September 1991

WOODS J: This is an application by the plaintiff, Wankani Yanyan, who was the president of the Mul Local Government Council. He is seeking a declaratory order that a meeting held at the Mount Hagen Park High School on 14 May 1991 called by the Provincial Minister for Local Government was ultra vires the Local Government Act (Ch No 57) and therefore any resolutions made at that meeting are null and void.

The applicant was the duly elected president of the Mul Local Government Council so appointed at the general meeting of the Council in March 1989. In accordance with the Local Government Act (Ch No 57) there is a requirement for a certain number of meetings of local government councils to be held each year. In accordance with the practice a planning calender was issued each year for the local government councils in the Western Highland Province and dates were set in that calender a year in advance and according to this calendar for the time in question namely 1991 there were meetings set down for 18 April 1991 and 24 July. However, the Minister for Local Government ordered a meeting to be held on 2 May 1991 and in due course a meeting was held on 14 May 1991. The applicant, the president, did not attend these meetings and is challenging the power of the Minister to call such meetings.

The operation of local government councils is covered by the Local Government Act 1963 and according to the repeated gazettes of ministerial responsibilities that Act is a function of the National Minister for Provincial Affairs and I refer here to Gazette No G53 of 9 July 1990. However it is submitted that under the Organic Law on Provincial Government, local government is primarily a provincial subject and I refer here to s 24 of the Organic Law. Therefore once the Western Highlands Provincial Government had passed their own Local Government Act namely the Local Government Act Adoption Act (No 4 of 1991) any reference to the Minister in the Local Government Act means the Provincial Minister for Local Government.

Whilst this appears to be confusing, especially with the continuing regazettal of the fact that the National Minister is the person responsible for all sections of the Local Government Act, and (I refer to the gazettal above) it seems that the Provincial Minister for Local Government does have certain responsibilities under the Act and that would be the reasonable assumption by application of the relevant Provincial Interpretation Act. So therefore I do accept that despite the confusion perhaps the Minister for Local Government is the man responsible under the Act.

So what powers and responsibilities does the Provincial Minister have over councils. A perusal of the Local Government Act shows a number of sections where he has limited responsibilities such as, for example:

In s 7 he can inspect books and records.

In s 14 he has limited power of variation.

In s 22 he can remove councillors from office after due inquiry and consultation.

Under s 39 he has limited involvement in the establishment of ward committees.

Under s 56 he can direct a council to perform its functions.

Under s 58 he can consent to joint exercise of power by two or more councils.

Under s 65 he has a role to play in the making of rules.

Under s 69 and s 70 he has a role to play in the recognition of custom.

Under s 73 he has a role to play in council taxes and under s 105 he has the power to suspend councils but such has to be confirmed by the Head of State.

So the general involvement from all the above sections in the Act generally appears to be that the Minister has a limited power of involvement or direction.

However, I find nothing in s 25 of the Act to give the Minister the power to call meetings of any councils apart from the first general meeting. In the case of the Mul Local Government Council I see no authority for the Minister to have intervened in the way he has, namely, by calling the meeting he called on 2 May 1991 and which was held on 14 May 1991. There was a schedule of meetings published by the Provincial Government which schedule complied with the requirements for meetings under the Act. I see no legal basis for the Minister to have called the extra meetings. With the clearly scheduled roster for meetings there is clearly no need for the Minister to intervene and call extra meetings. The Minister here has a consultative and investigative role regarding local government councils but he has no day to day power of management over councils. In so far as the Minister appears to have attempted to intervene he has not complied with the Act, he has not held the proper due inquiry and consultation to act the way he has. If he is purporting to suspend the existing council at the time, he has not done so as required in accordance with s 105 and has not had any such action confirmed by the Head of State.

I therefore find that the Minister acted without power in calling the meeting of 2 May 1991 therefore any meeting of 2 May 1991 and the meeting of 14 May 1991 were not valid meetings of the council and any decisions made therein are null and void and of no effect.

I therefore declare that:

1. the meeting held at the Mt Hagen Park High School attended by the members of the Mul Local Government Council and others on Tuesday 14 May 1991 was ultra vires the Local Government Act and therefore null and void.

2. I order that resolutions passed at the meeting held on 14 May 1991 purporting to remove the president of the Mul Local Government Council and appoint Kiap Pal as president and Akaki Mann a vice-president are null and void.

3. I order that the Western Highlands Provincial Government by its officers, servants and agents must refrain from giving effect to the resolutions of the meeting held on 14 May 1991.

4. I order that Mr Wankani Yanyan is president and Mr Mel Tebuka is vice-president of the Mul Local Government Council.

So ordered

Lawyers for the plaintiff: Henao Cunningham Priestly.
Lawyer for the defendant: M Maladina.