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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO 386 OF 2004
BETWEEN
GIGO ZALIONG
Plaintiff
AND
LAUGA BERRY WOX
First Defendant
AND
DEYAMOS LOCAL LEVEL GOVERNMENT COUNCIL
Second Defendant
AND
MOROBE PROVINCIAL GOVERNMENT
Third Defendant
Lae: Gabi, AJ
2004: 5th, 11th, 18th, 20th October
LOCAL LEVEL GOVERNMENT – Election of President – Motion of No Confidence against the head of LLG – Validity – Service of motion on members – Calling and chairing of a meeting to elect the head of LLG – Organic Law on Provincial Governments and Local level Governments, s 32; Local level Governments Administration Act, Sections 12 & 23; Standing Orders, s 39..
Counsel
K Gamoga, for the plaintiff
R Mugarenang, for the defendants
DECISION
20 October, 2004
1. GABI, AJ: Introduction: The plaintiff is 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. On 11 June 2004, he was voted out as the President of the Council in a Vote of No Confidence and thereby ceased to be the Deputy Governor by operation of law. Lauga Berry Wox, the first defendant, was voted in by a majority of 14 to 4 as the President of the Deyamos Local level Government Council. Councillor Owong Kolomet is the proposer of the motion and the seconder is Councillor Gawo Songiong.
"1. An order that that Vote of No Confidence Motion moved against the plaintiff and the election of the First Defendant as the President of Deyamos Local Level Government Council on the 11th of June 2004 IS ILLEGAL and NULL and VOID and OF NO EFFECT.
3. The plaintiff relies on four (4) affidavits: the affidavit of Basil Andon sworn and filed on 22 July 2004; the affidavit of Sailas Boipa sworn and filed on 22 July 2004; the affidavit of Meviong Gialy sworn and filed on 22 July 2004 and the affidavit of Gigo Zaliong sworn and filed on 22 July 2004. In brief, the plaintiff claims that the motion of No Confidence in him was served on the Acting Chief Executive Officer by the seconder of the motion on 29 May 2004.
4. The defendants rely on three (3) affidavits: the affidavit of Sam Engam sworn on 13 September and filed on 20 September 2004; the affidavit of Owong Kolomet sworn on 6 September and filed on 20 September 2004; and the affidavit of Lauga Berry Wox sworn on 3 September and filed on 20 September 2004. The defendants’ case is that the motion of No Confidence was served on 28 May 2004 by Councillors Owong Kolomet and Gawo Songiong on Sam Engam, the Acting District Administrator, at the Kabwum District Administrator’s Office. Copies of the petition for the motion of No Confidence were distributed to the thirteen (13) members who were already in camp on 5 June 2004, while copies for the rest of the members were left in their mail boxes at the Deyamos Council Office, Yalumet Station. Sam Engam, the Acting Chief Executive Officer confirmed and advised the members of the date of the meeting and convened and chaired the meeting on 11 June 2004, where the Motion of No Confidence was considered by the Local level Government Council.
5. There are five (5) issues before me. They are:
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.
The Law
6. The relevant provisions of the law for our purposes are Section 39 of the Standing Orders and Rules of Debate of Deyamos Local level Government Council, Sections 12 and 23 of the Local level Governments Administration Act and Sections 32 and 74 of the Organic Law on Provincial Governments and Local level Governments. These are set out below:
Organic Law on Provincial Governments and Local level Governments
Section 32 provides:
"32. PROCDURES OF LOCAL LEVEL GOVERNMENTS
(1) The head of a Local level Government shall preside at all meetings of the Local level Government at which he is present.
(2) Subject to this Organic Law, the privileges and immunities of members of Local level Governments, including the number of meetings and quorums for meetings of Local level Governments, shall be as determined by an Act of the Parliament, but the number of meetings of a Local level Government shall be not less than four in each calendar year, and the procedures shall be consistent with the procedures of a Provincial Assembly." (Emphasis mine)
Section 74(2)(a) provides:
"(2) Subject to Subsection (3), the District Administrator –
(a) shall be the Chief Executive Officer of the Local level Governments in a district." (Emphasis mine).
Local level Governments Administration Act
Section 12(3) and (4)(a) provides:
"(3) The head of a Local level Government elected under Subsection (1)(b) vacates office where –
(a) he ceases to be an elected member; or
(b) he is dismissed from office under Sections 9 and 10; or
(c) he is dismissed from office if the Local level Government, by a two thirds absolute majority (including the appointed members), passes a motion of no confidence in him in accordance with this section.
(4) A motion of no confidence referred to in Subsection (3)(c) –
(a) is a motion –
- (i) that is expressed to be a motion of no confidence in the head of the Local level Government; and
- (ii) of which not less than 14 days’ notice, signed by a number of members of the Local level Government, being not less than one quarter of the total number of members of the Local level Government, has been give in accordance with the Standing Orders of the Local level Government; and
- (iii) nominates another member of the Local level Government, who is eligible to be elected head of the Local level Government, to be the next head of the Local level Government." (Emphasis mine)
Section 23(3) and (4) provides:
"3. Unless otherwise provided, a meeting of a Local level Government shall be called by the head of that Local level Government.
Standing Orders and Rules of Debate
Section 39 provides:
"39. NOTICE OF MOTION
7. There are three (3) mandatory requirements under Section 39 of the Standing Orders. They are:
8. All these requirements must be met before a motion is considered by the Local level Government Council. Failure to meet any one of these requirements would render the motion and/or the deliberations of the Local level Government Council invalid and void.
Whether Sam Engam is the Chief Executive Officer
9. In his affidavit sworn on 13 September 2004, Sam Engam deposes that he is the Acting District Administrator for Kabwum District. There is no evidence before me to the contrary. Section 74(2)(a) of the Organic Law on Provincial Governments and Local level Governments provides that the District Administrator shall be the Chief Executive Officer in a district. I am of the view that Sam Engam is the Acting Chief Executive Officer for Kabwum District.
Whether the proposer of the motion physically served it on the Acting Chief Executive Officer
10. There is conflict as to who actually served the motion on Sam Engam. Meviong Gialy deposes that he was told by Gawo Songiong that he (Gawo Songiong) was looking for transport to travel to Kabwum Station to serve the motion on Sam Engam. Sailas Boipa deposes that he was told by Merviong Gialy that Gawo Songiong was looking for transport to travel to Kabwum Station to serve the motion. Basil Andon deposes that on 2 June 2004, Sam Engam confessed to him that Gawo Songiong served the motion on him (Sam Engam).
11. Sam Engam deposes that Owong Kolomet and Gawo Songiong delivered the petition to him. This is corroborated by Owong Kolomet, who deposes that he travelled with Gawo Songiong to Kabwum Station and delivered the motion to Sam Engam at Kabwum District Office. There is no evidence from Gawo Songiong before the Court.
12. It is clear to me that Owong Kolomet was physically present or personally in attendance at the Office of the District Administrator when the motion was delivered to Sam Engam. There was personal service. I find on the balance of probabilities that there was physical service of the motion by the proposer on the Chief Executive Officer.
Whether fourteen (14) days notice of the motion was given
13. There is conflict as to when the motion was served on Sam Engam. The evidence of the plaintiff’s witnesses in that the motion was served on Sam Engam on Saturday 29 May 2004. Sam Engam’s evidence, which is consistent with the evidence of Owong Kolomet, is that the motion was served on Friday 28 May 2004 at 4:30 pm.
14. At paragraphs 2 to 4 of his affidavit, Owong Kolomet deposes thus:
"2. At 12.30 pm, I arrived at Derim Station and met Councillor Gawo Songiong, Seconder of the Motion and Meviong Gialy. I left the petition paper with them and they read the contents of the petition and they both agreed and signed it.
3. At 2.30 pm, myself with Councillor Gawo Songiong left for Kabwum Station District Office
15. I note from the copy of the motion of No Confidence that councillor Meviong Gialy is a signatory to the petition. The petition is dated 28 May 2004. There is no evidence as to the time or date each of the Councillors signed the petition. There is no evidence from Meviong Gialy as to when he signed the petition. This would have helped in determining the date of service.
16. There is evidence from Owong Kolomet that Gawo Songiong and Meviong Gialy signed the petition at Derim Station on 28 May 2004. There is evidence from Meviong Gialy that he met Gawo Songiong and Owon Kolemet at Derim Station on the morning of Saturday 29 May 2004. I am unable to find that Meviong Gialy signed the petition on Saturday 29 May 2004.
17. I accept the evidence of Sam Engam and Owong Kolomet that the motion was served on 28 May 2004.
Whether copies of the motion were delivered or given ten (10) days prior to the meeting
18. At paragraphs 3 to 6 of his affidavit sworn on 13 September 2004, Sam Engam deposes thus:
"3. On 29th May 2004, I made a reply to the petition and then I flew into Lae on Monday 31st May 2004, and served the notice to the former President Gigo Zaliong and the relevant authorities before 3.30 pm, same day. In the same afternoon of 31st May at around 3.40 pm, I went to the Provincial Affairs’ Office and contacted Yalumet by VHF Radio, that the Notice was already served. I had mentioned to them that the meeting date was confirmed for 11th June 2004.
19. It is clear that the copies of the motion were delivered to the thirteen (13) members in camp at Komutu village six (6) days before the meeting. For the other four (4) elected members and the women representatives, there is no evidence that they were given copies prior to the meeting. I find that the requirement under Section 39 (2) of the Standing Orders has not been met.
Whether Sam Engam had powers to convene and chair the meeting on 11th June 2004
20. There is no dispute that Sam Engam called the meeting and chaired it on 11 June 2004. In his affidavit, Sam Engam deposes that he confirmed and advised the members that the meeting would be held on 11 June 2004. He further deposes that the date of the meeting was the Council’s proposed meeting date. In the absence of evidence to the contrary, I take that to mean that 11 June 2004, had already been approved by the Council as a meeting date.
21. The Minutes of the Meeting of 11 June 2004 show that Sam Engam chaired the meeting. At paragraphs 6 and 7 of his affidavit, Sam Engam deposes that as the legally responsible officer to preside over the deliberations of the motion of No Confidence, he allowed the meeting to be held on 11 June 2004.
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.
25. For these reasons, I find that the conduct of the Vote of No Confidence is contrary to the requirements set out under the law. I, therefore, make the following declaratory orders:
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.
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.
________________________________
Gamoga & Company Lawyers: Lawyers for the plaintiff
Morobe Provincial Administration Legal Unit: Lawyers for the defendant
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