N3105

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 105 OF 2006

BETWEEN

PETER SAMUEL
Plaintiff

AND

FRANCIS MARUM sued as the PRESIDENT ELECT of the UMI/ATZERA LOCAL LEVEL GOVERNMENT
First Defendant

AND

APORO NAIAN sued as the Executive Officer of UMI/ATZERA LOCAL LEVEL GOVENMENT
Second Defendant

AND

MOROBE PROVINCIAL GOVERNMENT
Third Defendant

Lae: Gabi, J
2007: 12 March

LOCAL LEVEL GOVERNMENT – Election of head of LLG – No Confidence motion – Validity – Service of notice of meeting and notice of motion of no confidence – Who may chair meeting in a vote of no confidence – Sections 8 to 11, 14 and 39 of Standing Orders & Sections 12 and 23 of Local-level Governments Administration Act.

Counsel
S. Togo, for the Plaintiff
G. Anis, for the Defendants

DECISION

12 March, 2007

1.	GABI, J: Introduction: The plaintiff is challenging the validity of the motion of no confidence moved against him on 26 January 2006 where he was removed as the President of Umi/Atzera Local level Government.

2.	By an Originating Summons filed on 21 February 2006 the plaintiff is seeking the following orders:

"1.	A declaration that the vote of no confidence moved against the plaintiff as the President of Umi/Atzera Local level Government on the 26th of January 2006 and the election of Mr Francis Marum as the President of Umi/Atzera local level Government on the same date is null and void and as (sic) no effect.

2.	A declaration that the plaintiff is still the President of Umi/Atzera Local level Government.

3.	An interim order that Umi/Atzera Local level Government and Morobe Provincial Government [be] restrained from recognising and or dealing with Mr Francis Marum as the President of Umi/Atzera Local level Government.

4.	An interim order that Francis Marum be strained (sic) from holding himself out as the President of Umi/Atzera Local level Government and to perform the duties of the office until further orders.

5.	An interim order that Mr Francis Marum be restrained from receiving, dealing and or dispersing the unconditional grant from the Morobe Provincial Government to Umi/Atzera local level Government.

6.	The cost of this proceeding be awarded to the plaintiff."

3.	The plaintiff filed his two (2) affidavits dated 8 February 2006 and 10 March 2006 and the affidavit of Tae Gumbelek dated 10 February 2006. The defendants, on the other hand, filed the affidavit of Francis Marum dated 6 March 2006 and the affidavit of Barnabas Faruf dated 29 March 2006.

Background

4.	On 10 March 2004, Peter Samuel was elected President of Umi/Atzera Local Level Government following a vote of no confidence. On 3 November 2005, Manasupe Zurenouc, the Administrator of Morobe Province wrote to him advising that he was immune from vote of no confidence until July 2006. On 28 November 2005, Enoch Sihil, the legal officer for Morobe Province wrote a similar letter to Bohage Bebinaso, the District Administrator of Markham advising him not to entertain any vote of no confidence until 12 July 2006. On 8 December 2005, Gamoga & Co. Lawyers wrote to Bohage Bebinaso advising that the eighteen (18) months grace period for the plaintiff commenced on 10 March 2004 and expired on 10 September 2005. On 5 January 2006, Bohage Bebinaso received notice of the motion of no confidence from Councillors. On 6 January 2006, Bohage Bebinaso wrote to the plaintiff requesting him to set a date for a meeting to deal with the motion of no confidence. On 19 June 2006, Barnabas Faruf, the Deputy President of Umi/Etzera Local Level Government received written request from 14 Councillors for a special meeting. On the same day, Barnabas Faruf sent out a notice to all Councillors appointing 26 January 2006 as the date for the meeting. It is alleged that on 23 January 2006 the plaintiff terminated the appointment of Barnabas Faruf as the Deputy President. On 26 January 2006, thirty (30) of the thirty-two (32) Councillors convened a meeting at the Umi/Atzera Local Level Government Council Chambers and elected Francis Marum as the President. The plaintiff was not present at that meeting. It is alleged that Barnabas Faruf chaired the meeting and after suspension of the normal business of the day handed over the chairmanship to Bohage Bebinaso, who conducted the meeting to elect Francis Marum as the President.

Issues 

5.	There are three (3) issues before the Court:

(a)	Whether the motion of no confidence entertained on 26 January 2006 was moved within eighteen (18) months.

(b) Whether the notice for an additional meeting and the notice of the motion of no confidence were served on the President and the Chief Executive Officer respectively.

(c)	Whether Bohage Bebinaso had the authority to chair the meeting of 26 January 2006.

Motion of no confidence

6.	There appears to be some confusion as to whether the motion of no confidence entertained on 26 January 2006 was moved within eighteen (18) months. Under section 12 (4) (b) (i) of the Local level Government Administration Act 1997, time commences to run from the date of election of the head of the Local Level Government. Section 12 (4) (b) (i) provides:
 
"(4)	A motion of no confidence…..
(b)	may not be moved –
(i)	during the period of 18 months following the election of the head of the Local level Government." (my emphasis)	

7.	The plaintiff was elected on 10 March 2004 after a successful vote of no confidence. The eighteen (18) months grace period expired in September 2005. Accordingly, I find that the motion of no confidence was moved after the expiration of the grace period. As such, it was properly placed before the Council for deliberation.

Service of the notice

8.	The notice of an additional meeting and the notice of a motion of no confidence are to be served on the respective persons according to the law. The notice of the meeting must be served on the head of the Local level Government (see s 23 (3) & (4) of the Local–level Governments Administration Act and s 11 (2) of the Standing Orders). The notice of the motion of no confidence, on the other hand, is to be served personally on the chief executive officer (see s. 12 (4) of the Local–level Governments Administration Act and s. 39 of the Standing Orders). These are two (2) distinct and separate notices and are dealt with separately under the law. I set out the provisions in full below:

Local Level Governments Administration Act 1997

"12.	Election of head of a Local level Government…..

(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 given 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; and

(b)	may not be moved –

(i)	during the period of 18 months following the election of the head of the Local-level Government; and

(ii)	during the period of six months before the fifth anniversary of the date fixed for the return of the writs of the previous general election of members of Local-level Governments…..

23.	Meetings of a Local-level Government.

(3)	Unless otherwise provide, 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."(my emphasis).

Standing Orders

"11.	Other meetings of the Local-level Government…..
(2)	A 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 within 14 days of receiving a written request from the chief executive officer…..

"39.	Notice of Motion.

(1)	The proposer of the motion shall physically serve a signed copy of the motion on the chief executive officer.

(2)	The chief executive officer shall, as soon as is practicable, after the receipt of the motion under Subsection (1), make or cause to be made, sufficient copies of the motion and shall ensure that each Councillor is given a copy of the motion at least 10 clear days before the motion is considered by the Local-level Government.

(3)	For the purposes of Section 12(4) (a) (ii) of the Act, the 14 days notice commences on the day after the day the motion is served on the chief executive officer under Subsection (1)."(my emphasis).

9.	With respect to the notice of the meeting the plaintiff deposes that Bohage Bebinaso gave him the letter dated 6 January 2006 and the notice of the motion of no confidence on 23 January 2006 (see paragraph 2 (iii) of the affidavit of Peter Samuel dated 10 March 2006). The letter of 6 January 2006 was from Bohage Bebinaso to the plaintiff requesting him to set a date for a meeting to debate the motion of no confidence. 

10.	Francis Marum maintains that Bohage Bebinaso served the notice of motion of no confidence on the plaintiff on 6 January 2006. He further states that on 7 January 2006 the notice of motion of no confidence was served on the plaintiff by a Sergeant Robert Sinik and further attempts were made by various people on 12th, 13th, 16th, 17th and 19 January 2006 to serve the notice of motion of no confidence on the plaintiff but he refused to accept service (see par 5, par 6, par 7 & par 9 and annexure C and D of the affidavit of Francis Marum dated 6 March 2006). This is hearsay evidence and I refuse to accept it. Even if I were to accept the evidence, the plaintiff is not required to accept or receive the notice of motion of no confidence. It is the chief executive officer who is to be served the notice of motion of no confidence.

11.	In his report dated 9 January 2006, a Chief Sergeant Peter Igish stated that he received a notice of the motion of no confidence from Bohage Bebinaso for service on the plaintiff who was in Lae at the time. He attempted to serve the notice on him at the Provincial Headquarters, but the plaintiff refused to accept it (see par 8 and annexure E of the affidavit of Francis Marum dated 6 March 2006). I accept this evidence. This is the only credible evidence of service before the Court. I find that the plaintiff became aware of the notice of the motion of no confidence on 9 January 2006. There is no evidence of service of the notice of the meeting on the plaintiff before the Court. I accept the evidence of the plaintiff that he received the letter of 6 January 2006 from Bohage Bebinaso to him on 23 January 2006. There is no evidence to show that the plaintiff "received" a "written request" for an additional meeting from the councillors before 23 January 2006. 

12.	Francis Marum deposes that the notice of the motion of no confidence was served on the chief executive officer (see par 5 and annexure C of the affidavit of Francis Marum dated 6 March 2006). It appears that the motion was proposed by a Raphael Geseng and seconded by a Awateng Narian. There is no evidence from Bohage Bebinaso or Raphael Geseng that the motion was personally served. I am not satisfied that the motion was served personally.

13.	In Os No. 386 of 2004, Gigo Zaliong v Lauga Berry Wox and 2 others (2004) unreported, I said that the three (3) mandatory requirements under s. 39 of the Standing Orders are: (i) personal service; (ii) the motion must be served fourteen (14) days before consideration; and (iii) the chief executive officer must deliver copies to members ten (10) days before deliberation. I still maintain that position. I am not satisfied on the evidence before me that the three (3) requirements were complied with. 

Conduct of vote of no confidence.

14.	It is not disputed that the meeting was called by the Deputy President. With respect to the conduct of the vote of no confidence, Francis Marum deposes at paragraphs 16 and 17 of his affidavit:

"16. Unfortunately, the President was deliberately absented at the time of the meeting and therefore the Deputy President chaired the meeting pursuant to the provision of the Standing Order.

17. Thereafter, the Deputy President vacated the chair and allowed the
Chief Executive Officer to Chair the meetings for the purposes of Vote of No Confidence whereupon motions where made to remove the former President and appoint me as the alternative." (Sic) 

15.	The minutes of the special meeting no. 1/06 confirms that position. Furthermore, in his letter dated 26 January 2006 to Mr. Enoch, the Provincial Legal Officer, Bohage Bebinaso stated:

"Normal businesses of the day was unanimously moved and suspended by the entire council assembly and requested the District Administrator, Chief Executive Officer to assume the role of chairman to deliberate on the substantial matter and that was the Vote of No Confidence in the President."(Sic) (See affidavit of Francis Marum dated 6 March 2006, the minutes of the special meeting, paragraph 5.3 and the letter dated 26 January 2006, annexure G).

16.	Tae Gumbelek deposes at paragraphs 5 and 6 of his affidavit thus:

"5.	 Councillor Elizah Tuping then moved that normal business of the day under the Standing Order be suspended and that the motion of no confidence to proceed. All the councillors who were present agreed that all other business of the day be suspended.

6.	 At that point, the chief executive officer of the Umi/Atzera local level government, Mr Bohage Babinaso was called upon by the said Barnabas Faruf to conduct the vote of no confidence motion." (See affidavit of Tae Gumbelek sworn 10th and filed 21 February 2006).

17.	Barnabas Faruf deposes that he conducted the meeting and he called upon the chief executive officer to assist him conduct the vote of no confidence. (See paragraphs 6 and 7 of the affidavit of Barnabas Faruf sworn on 29th and filed on 30 March 2006).

18.	I do not believe the evidence of Barnabas Faruf. I accept the evidence of Bohage Bebinaso, Francis Marum and Tae Gumbelek that Bohage Bebinaso chaired the meeting to conduct the vote of no confidence.

19.	The power to call meetings is vested in the head of the Local level Government. (see s 23(4) of the Local level Governments Administration Act). A chief executive officer may chair a meeting to elect the head of a Local level Government after a General Election or to elect a member to chair a meeting when the head and the deputy head of the Local level Government are absent. (see Sections 8 to 11 and 14 of the Standing Orders). 

20.	I find that the deputy head had no powers to call the meeting. Furthermore, I find that Bohage Bebinaso, the chief executive officer, had no authority to chair the meeting to entertain the motion of no confidence on 26 January 2006. Accordingly, the meeting was illegal, null and void. I, therefore, make the following orders:

1.	A declaration that the vote of no confidence moved against the plaintiff as the President of Umi/Atzera Local level Government on the 26 of January 2006 and the election of Mr Francis Marum as the President of Umi/Atzera local level Government on the same date is null and void and of no effect.

2.	A declaration that the plaintiff is still the President of Umi/Atzera Local level Government.

3.	That Umi/Atzera Local level Government and Morobe Provincial Government are refrained from recognising and/or dealing with Mr Francis Marum as the President of Umi/Atzera Local level Government.

4.	That Francis Marum is restrained from holding himself out as the President of Umi/Atzera Local level Government.

5.	That Mr Francis Marum be restrained from receiving, dealing and or dispersing the unconditional grant from the Morobe Provincial Government to Umi/Atzera local Level Government.

6.	The costs of these proceedings are awarded to the plaintiff.

_________________________

Habuka Lawyers: Lawyers for the Plaintiff
Gamoga & Co Lawyers: Lawyers for the Defendants