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Wai v Ambane [1999] PGNC 61; N1869 (18 June 1999)

Unreported National Court Decisions

N1869

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS. NO. 501 OF 1998
BETWEEN: SIMEON WAI
PLAINTIFF
AND: FR. LOUIS AMBANE
DEFENDANT

Kundiawa

Hinchliffe J
15 June 1999
18 June 1999

RESTRAINING ORDER - Dispute over the legitimate Governor of Simbu - Organic Law on Provincial Governments and Local Level Governments, Sections 17, 19, 20 & 21.

Counsel

Mr. P. Kunai for the Plaintiff.

Mr. Wal for the Defendant.

18 June 1999

HINCHLIFFE J: On the 9th June, 1999, in Mt. Hagen, the National Court made the following ex-parte Orders:

“Until further Order,

1. The defendant is restrained from entering the Office of the Governor for Simbu and or performing and or exercising any powers or functions of the office of the Governor for Simbu forthwith until the Supreme Court rules on the issue as to who is the legitimate Governor for Simbu referred by this Court on the 25th September, 1998.

2. All documents relating to this matter to be served on the defendant forthwith.

3. Time abridged.

4. The costs of this application be costs in the cause.

5. The matter is adjourned to the 15th of June, 1999 for mention before the National Court in Kundiawa at 9.30 am.”

As ordered the case was mentioned and heard in Kundiawa on the 15th June, 1999 with both parties represented by Counsel.

The hearing itself varied somewhat from the said ex-parte order of the 9th June, 1999 in that the arguments were directed at whether or not correct procedures were followed in appointing the defendant as Governor. It was conceded by the plaintiff that the defendant had the right to be the legitimate Governor of Simbu but he must be appointed in accordance with the Organic Law on Provincial Governments and Local-Level Governments.

The defendant on the other hand, submitted that the relevant sections of the said Organic Law had been followed in appointing the defendant as Governor.

After considering the both submissions of Counsel I have come to the unusual conclusion that I don’t really accept either of them. My decision is arrived at in such a way that was not submitted by either Mr. Kunai or Mr. Wal.

After the 1997 General Election the defendant, who was elected to the Simbu regional seat, took up the position of Governor of the province pursuant to Sec. 17(2) of the said Organic Law which provides as follows:-

“17. The Provincial Governor

(1) .....................................

(2) Subject to this Organic Law, the Member of the National Parliament representing the provincial electorate shall be the Provincial Governor.”

There is no dispute about that and quite clearly the said Sec. 17(2) is mandatory. The defendant was entitled to the Governorship and he took up his entitlement.

On 22nd May, 1998 the defendant was removed from office after an election petition against him was successful. The National Court sitting as a Court of Disputed Returns declared the election of the defendant as null and void and ordered fresh elections for the Simbu Provincial Electorate.

Sec. 19 of the Organic Law provides, inter alia, as follows:

“19. Vacation of Office of the Provincial Governor.

(1) If the Provincial Governor —

(e) is otherwise disqualified by law or ceases to be a member of the Provincial Assembly or of the National Parliament, he shall be deemed to have vacated the office of the Governor.”

Therefore after the National Court made its said decision, it was deemed that the defendant had vacated his office.

Sec. 21(1) of the said Organic Law then applied. It provides as follows:

“21. Election of the Provincial Governor in the Event of Vacancy.

(1) Subject to Subsection (3), if the Provincial Governor vacates his office in accordance with Section 20, the Provincial Assembly shall, from amongst the members of the Assembly who are Members of the Parliament, elect the Provincial Governor.”

The plaintiff, who is a member of the Parliament, was duly elected Governor by the Provincial Assembly pursuant to the said Sec. 21(1).

Subsequently, after a Review to the Supreme Court, a by-election was held and the defendant was victorious. On the 20th May, 1999 he was sworn in as a Member of the National Parliament by the Governor General. On the 2nd June 1999 he was sworn in both as a Member of the Simbu Provincial Assembly and as the Provincial Governor for Simbu by the Senior Provincial Magistrate, Mr. Martin Loi.

The plaintiff submits that when the defendant was sworn in as Governor, he (the plaintiff) in fact was still the duly elected Governor and proper procedures had not been followed to elect the defendant as Governor.

Mr. Kunai, for the plaintiff, submitted that Sec. 20 of the Organic Law was not complied with and therefore the plaintiff is still the Governor.

The said Sec. 20 provides as follows:-

“20. DISMISSAL OF PROVINCIAL GOVERNOR AND DEPUTY PROVINCIAL GOVERNOR.

(1) Subject to this section, if the Provincial Governor or Deputy Provincial Governor —

(a) deliberately and persistently frustrates or fails to comply with the resolutions of the Provincial Assembly; or

(b) deliberately and persistently disobeys applicable laws, including the Constitution, an Organic Law (including this Organic Law) or any national legislation applying in the province; or

(c) is negligent in exercising his powers or performing his functions, duties and responsibilities; or

(d) does an act that is or is likely to bring into disrepute or call into question the integrity of his office,

the Provincial Assembly may, by a two-thirds absolute majority vote, dismiss the Provincial Governor or Deputy Provincial Governor.

(2) The dismissal of the Provincial Governor or the Deputy Provincial Governor shall be by motion—

(a) which shall be expressed to be a motion to dismiss the Provincial Governor or the Deputy Provincial Governor, as the case may be; and

(b) of which not less than one week’s notice signed by the number of members of the provincial Assembly, being not less than one-quarter of the total number of seats in the Assembly, has been given in accordance with the procedures of the Assembly.”

(Section 20 repealed and replaced by Amendment No. 1 Law)

To my mind that section only applies when the Provincial Assembly decides to dismiss the Governor for reasons stated in Sec. 20(1). It must then follow the procedure set out in Sec. 20(2). That was not the situation in the present case. The Provincial Assembly did not seek to dismiss the Governor for Sec. 20 reasons. I am satisfied that Sec. 20 is irrelevant in this case.

What occurred in this case, to my mind, is that when the defendant was successful in the said by-election he once again became the regional member for Simbu. That entitled him absolutely to become the Governor. (See Sec. 17(2) of the Organic Law). It is mandatory that he becomes the Governor. Because of that it is deemed that the plaintiff has vacated the office of Governor.

I say that because of what is provided in Sec. 19(2) of the said Organic Law in particular Sec. 19(2)(e). Sec. 19(2) reads as follows:-

“(2) Where the Provincial Governor is a Member of the National Parliament, other than the member of the Parliament representing the province, he shall be deemed to have vacated the office of the Governor, if he —

(a) is dismissed from office in accordance with Section 20; or

(b) resigns his office in accordance with Subsection 1(c); or

(c) is, in the opinion of two medical practitioners appointed for the purpose by the National Authority responsible for the registration or licensing of medical practitioners, unfit, by reason of physical or mental incapacity, to carry out the duties of his office; or

(d) is appointed to any of the offices referred to in Subsection(1)(b); or

(e) is otherwise disqualified by law or ceases to be a member of the Provincial Assembly or of the National Parliament.”

(Subsection (2) repealed and replaced by Amendment No. 1 Law)

I am of the view that once there is again a regional member, then, as in this case, anyone else holding the position of Governor is deemed to have vacated the office. I say that because he is then disqualified by law” from holding the position of Governor. (ie. see Sec 17(2) of the said Organic Law)

It follows then, that as the person is deemed to have vacated the office of Governor there is no need for the Provincial Assembly to withdraw his appointment.

But what is then necessary is that Sec.21(2) of the Organic Law is complied with and it provides as follows:-

“(2) Subject to Subsection (3), if the Provincial Governor elected under Subsection (1) vacates his office in accordance with Section 19(2), or is dismissed from office in accordance with Section 20, the Assembly shall elect another Member of the Parliament to be the Provincial Governor.”

It would seem to me that that sub-section has been complied with in that the defendant was formally elected to the position of Provincial Governor.

I am therefore satisfied that the defendant, Fr. Louis Ambane is the legitimate Governor of the Simbu Province.

I am further satisfied that the said Restraining Order of the 9th June, 1999 now be lifted, and I so Order.

I further Order that the defendants costs are to be paid by the plaintiff. If not agreed then they are to be taxed.

Lawyer for the Plaintiff: KUNAI & CO. LAWYERS

Lawyer for the Defendant: WAL & COMPANY LAWYERS