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Potape v Undialu [2016] PGNC 216; N6405 (6 September 2016)

N6405
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (EP) No. 6 OF 2016

BETWEEN

HON. FRANCIS POTAPE
GOVERNOR OF HELA PROVINCE
(First Plaintiff)

AND
THOMAS POTAPE
DEPUTY GOVERNOR OF HELA PROVINCE
(Second Plaintiff)

AND
PHILIP UNDIALU
(First Defendant)

AND
WILLIAM BANDO, PROVINCIAL ADMINISTRATOR, HELA PROVINCE
(Second Defendant)

AND
WATSON EBELA, CLERK OF HELA PROVINCIAL ASSEMBLY
(Third Defendant)

Waigani: Makail, J
2016: 25^th August & 6^th September

ELECTION – Election of Provincial Governor – Vacancy of – Validity of election of Provincial Governor – Dispute of – Breaches of Standing Orders – Chairmanship of meeting – Absence of Chairman – Time of meeting – Quorum of meeting – Absence of Assembly Clerk – Validity of – Organic Law on Provincial Governments and Local-level Governments – Sections 10, 17, 19 & 21 – Standing Orders 3, 11, 12, 23 & 26

Cases cited:

Governor Anderson Pawa Agiru v. Hon. Francis Potape & Ors: OS No 821 of 2015 (Unnumbered & Unreported Judgment of 14^th June 2016)

Counsel:
Mr. Philip Ame with Mr. Anthony Rake, for Plaintiff
Mr. Goiye Gileng, for First and Third Defendants
No appearance, for Second Defendant

JUDGMENT

6^th September, 2016
1. MAKAIL, J: This is a dispute over the office of the Provincial Governor, an office established by Section 17 of the Organic Law on Provincial Governments and Local-level Governments (“OLP&LLG”).

2. On 14^th June 2016 the National Court presided by Kariko J ruled that the election of the First Plaintiff as Provincial Governor of Hela Province was illegal, null and void. His Honour found that the meeting in which the Hela Provincial Assembly held on 29^th December 2015 and elected the First Plaintiff did not comply with Standing Orders of the Hela Provincial Assembly (“SOs”).

3. It was held that a letter purporting to be a notice to call a “special meeting” of the Agiru: see Governor Anderson Pawa Agiru v. Hon. Francis Potape & Assembly was not a notice of meeting and secondly, no notice of meeting was given to the Members of National Parliament who were also members of the Provincial Assembly. The ruling was made in the proceeding commenced by Governor Anderson Ors: OS No 821 of 2015 (Unnumbered & Unreported Judgment of 14^th June 2016).

4. Following the Court’s ruling none of the parties appealed to the Supreme Court. Instead they returned to Tari to re-elect a Provincial Governor. By then Governor Hon. Anderson Agiru had passed away on 28^th April 2016. By virtue of Section 19 of the OLP&LLG his passing created a vacancy in the Office of the Provincial Governor.
5. On 28^th June 2016 at 10:00 am the members convened a meeting at Hela Provincial Assembly Hall, Tari. One of the agenda was the election of the Provincial Governor. The First Plaintiff, Second Plaintiff, First Defendant and Member for Tari-Pori Open Electorate Hon. James Marape along with other members attended.

6. The meeting was chaired by the Second Plaintiff. There was disagreement amongst the members in relation to, amongst other things, the membership of the Assembly. A resolution could not be reached and the meeting was adjourned to 5^th July 2016 at the same venue. The time for the meeting was not clear. The Plaintiffs say it was 2:00 pm and the Defendants say it was 10:00 am.

7. On 5^th July 2016 at 10:00 am a faction of the members led by the Plaintiffs and another faction led by the First Defendant gathered at the precincts of the Assembly Hall. Disagreement as to the membership of the Assembly was resurrected. It was at the instigation of the Sergeant in Arms at the direction of the Third Defendant who informed the faction led by the Plaintiffs that two of the members in their faction were disqualified to participate in the coming meeting. They were not to be allowed to enter the Assembly Hall and participate in the meeting. The Plaintiffs led faction then boycotted the meeting.

8. The First Defendant led faction convened the meeting later in the morning and elected the First Defendant unopposed as Provincial Governor. The meeting was chaired by the Third Defendant as Acting Chairman in place of the Second Plaintiff who was said to be absent. It was alleged that the Second Plaintiff deliberately abstained from the meeting and cannot now complained about it.

9. Later that day at 2:00 pm the Plaintiffs led faction convened another meeting at the Assembly Hall. It was chaired by the Second Plaintiff and from this meeting the First Plaintiff was elected unopposed as Provincial Governor. One Henry Gayala the Provincial Customary Lands Manager was requested by the Second Plaintiff and performed the task of the Assembly Clerk which included taking the minutes of the meeting.

10. In essence there were two different meetings held by the Hela Provincial Assembly which elected the Provincial Governor and created the mess the parties find themselves in now. The Plaintiffs now seek a declaration that the election of the First Plaintiff or in the alternative the Second Plaintiff was legal. Secondly, they seek a permanent injunction against the First Defendant from holding himself out as Provincial Governor and holding further Assembly meetings and Provincial Executive Council meetings.

11. The Hela Provincial Assembly comprises of a Provincial Governor, three Members of Parliament; one for Komo-Magarima, one for Tari-Pori and one for Koroba-Lake Kogiago, Presidents of Local-level Governments and nominated members. The total was originally 14 members. With the passing of late Mr. Agiru 13 members are left: see Section 10 of the OLP&LLG.

12. Those members present in the meeting on the afternoon of 5^th July 2016 were:
(1) Hon. Francis Potape, MP;
(2) Hon. Thomas Potape, MPA – Deputy Governor;
(3) Hon. Jacinta Hayabe, MPA;
(4) Hon. Giluwa Wakinda, MPA;
(5) Hon. Jalo Hape, MPA;
(6) Hon. Eric Yawas, MPA; and
(7) Hon. Efala Pape, MPA.

13. Those absent were:
(1) Hon. James Marape, MP;
(2) Hon. Philip Undialu, MP;
(3) Hon. Charles Apalu, MPA;
(4) Hon. Thomas Tawi, MPA; and
(5) Hon. Markus Kapia, MPA.

14. Those absent in the afternoon meeting were the ones who convened the meeting in the morning and elected the First Defendant as Provincial Governor. Two more members were present and voted in the morning meeting. They were Hon. Olene Yawa- nominated member representing the Churches and Hon. Luke Panguma, President of Hulia Local-Level Government.

15. The members of whom their qualifications as members were disputed were Hon. Eric Yawas and Hon. Efala Pape. It is alleged that Mr. Yawas’ election as President for Hulia Local-level Government was declared null and void by the National Court and Mr. Pape’s Mt. Bosavi Local-Level Government was in the Southern Highlands Province. By reason of this they were disqualified from attending and participating in the meeting of the Assembly.

16. The Plaintiffs accused the Third Defendant and his deputy of siding with the First Defendant led faction. They alleged that they received substantial sums of money from the First Defendant. The funds were drawn from the Hela Provincial Government operating account. This allegation was categorically denied by the Third Defendant who stated that the funds were used for funeral expenses for late Mr. Agiru and convening of the Assembly meetings to elect the Provincial Governor.

17. Where a vacancy exits in the Office of the Provincial Governor Section 21 of the OLP&LLG gives the Assembly members who are Members of Parliament first preference to be elected Provincial Governor. There is no dispute that the First Plaintiff and the First Defendant are and were eligible to nominate for election of the Provincial Governor.

18. The first issue for consideration is the time of meeting. Was it 10:00 am or 2:00 pm? The Plaintiffs relied on the Meeting Minutes prepared by the Second Plaintiff. It stated 2:00 pm. The Defendants asserted that there could not be any doubt or confusion as to the time because the Second Plaintiff acknowledged 10:00 am as the time for the meeting in his letter to the Senior Provincial Magistrate Mr. Vincent Eralia dated 1^st July 2016. It was an invitation to Mr. Eralia to preside over the swearing in ceremony of the new Governor.

19. Secondly, the Defendants relied on the Meeting Minutes prepared by the Third Defendant. They submitted that this was the lawful Minutes of the meeting because it was taken by the Third Defendant as Clerk who is the authorised officer to perform this task pursuant to SO 23. Thirdly, the acknowledgement of the time was further confirmed by the Plaintiffs led faction when they attended on the morning of 5^th July.

20. I accept the Defendants’ submissions. According to SO 23 it is the duty of the Clerk to keep the records of the Assembly. This includes taking of meeting minutes. The meeting minutes did not state the time. As a result the Third Defendant issued a notice of meeting to all members to inform them of the time of the meeting. The time was 10:00 am on 5^th July. This notice was published in one of the daily newspapers.

21. The time is also consistent with SO 26. SO 26 provides for date and time for Assembly meetings. Assembly meetings are held from Tuesday to Friday at 10:00 am. There is a break and resumption at 2:00 pm. I accept the starting time for each Assembly meeting is 10:00 am. This further supports the Defendants’ submission that the time is 10:00 am.

22. The time is further confirmed by the letter from the Second Plaintiff to the Senior Provincial Magistrate Mr. Eralia dated 1^st July 2016. The letter stated that he was invited to preside over the swearing in ceremony of the new Governor on 5^th July 2016 at 10:00 am. The Plaintiffs do not deny the existence of this letter or dispute the correctness of its contents. I accept it as evidence supporting the First and Third Defendants submission that the meeting was fixed for 10:00 am.

23. Furthermore, the attendance by the Plaintiffs led faction confirmed that the meeting was going to be held at 10:00 am. As things did not work out for them that morning, they boycotted the meeting.

24. For these reasons, I find that there could not be any doubt or confusion as to the time for the meeting. It was 10:00 am.

25. Does this then make the meeting convened by the First Defendant led faction legal? The morning meeting was chaired by the Third Defendant. Was he authorised to do so? It brings up the issue of chairmanship of the meeting. The Plaintiffs say given the death of late Mr. Agiru, by virtue of SO 11, the Second Plaintiff as the Deputy Governor acts as Chairman. Accordingly, he was authorised to chair the afternoon meeting. The morning meeting in which the Third Defendant chaired is illegal.

26. The Defendants say that the morning meeting was legal because the Second Plaintiff deliberately boycotted the meeting and was absent. In his absence, the Third Defendant in his capacity as the Assembly Clerk was authorised to chair the meeting.

27. It is submitted that the actions of the Defendants were permitted by SO 12. It provides that where the Chairman and Deputy Chairman are both absent, the Assembly Clerk shall, subject to any order of the Assembly, act as Acting Chairman to elect the Chairman for that sitting. In this instance, the Third Defendant chaired the morning meeting and the Assembly members resolved that he chair the entire meeting to elect the Provincial Governor, which he did.

28. I accept the Plaintiffs’ submission that in the absence of the Chairman who is the Provincial Governor, in this instance the death of late Mr. Agiru by SO 11, the Second Plaintiff as the Deputy Governor will act as Chairman of the Assembly.

29. I reject the Defendants’ submissions for two reasons. First, I am not satisfied that the boycotting of the morning meeting by the Second Plaintiff constitutes an “absence” of the Deputy Chairman within the meaning of SO 12. Nor can it be said that the Second Plaintiff was “unable to act” as Chairman of the Assembly in the morning meeting if one were to apply the considerations under SO 11.

30. In my view, being “absent” or “unable to act” applies in cases where the Deputy Chairman is away on leave be it recreational, sick or compassionate etc.., or duty travel out of the province or overseas or even death. He may be unable to act if he is charged with a criminal offence and locked up by the police pending trial.

31. In this instance, the circumstances described by the Defendants as constituting “absence” or even a claim that the Second Plaintiff was “unable to act” fall short of or does not fit into any one of the situations briefly mentioned above. On the other hand, the Second Plaintiff was present that morning, the Defendants were well aware of that, they saw him that morning and when he left with the others, they went ahead and convened the meeting.

32. I simply fail to understand why they did that. In my view, the election of the Provincial Governor is such an important matter that I cannot see why they could not wait. I cannot stress enough that it must be done properly and fairly according to law. If it was that important, why didn’t the First Defendant led faction exercise patience and wait? Why the rush? And the reason they gave that the Second Plaintiff deliberately boycotted and cannot now complain about it is self-serving and unsatisfactory.

33. Secondly, the Defendants’ submission that by virtue of SO 12 the Third Defendant was authorised by the Assembly resolution to chair the entire meeting is misconceived. That is not what SO 12 states. The Third Defendant is not an elected member of the Assembly and has no authority to chair any meeting beyond the meeting he is authorised to chair, that is, to elect the chairman of the meeting. The meeting beyond that must be chaired by one of the members of the Assembly elected as chairman by the members themselves.

34. For these reasons, I am not satisfied that the meeting convened by the First Defendant led faction on the morning of 5^th July 2016 was in accordance with SOs 11 and 12.

35. Does it then make the meeting convened by the Plaintiffs legal and valid? There are couple of issues that this meeting brought up. First is the issue of Assembly Clerk. If the Third Defendant and his deputy were absent in the afternoon meeting, was the person who performed the task of the Assembly Clerk authorised to do so?

36. The Plaintiffs submitted that Mr. Gayala who performed the role of the Assembly Clerk was so authorised because he was requested by the Second Plaintiff in the absence of the Third Defendant or his deputy.

37. There is a demarcation between the roles of the Assembly Clerk and the Chairman of the Assembly. The role of the Assembly Clerk is purely administrative in nature. He is responsible for the day to day running of the Assembly, whereas the Chairman of the Assembly is responsible for the meetings of the Assembly. It is the Chairman that chairs the meetings that pass resolutions of the Assembly on social and economic issues affecting the people of the province.

38. SO 3 provides for the Office and functions of the Clerk of Assembly. The Clerk and the Deputy Clerk shall perform the functions conferred on them by the SO. During a vacancy in the office of the Clerk, the Deputy Clerk shall exercise all powers, functions and duties of the Clerk.

39. There is no other provision in the SOs nor did the Plaintiffs refer to a provision in the SOs which gives the Chairman and Deputy Chairman, in this instance, the Second Plaintiff the authority to request or even appoint an officer in the Provincial Administration to act or perform the functions of the Assembly Clerk.

40. On the other hand, in my view, SO 3 is quite clear. The functions of the Assembly including taking of meeting minutes is exclusively the function of the Clerk or in his absence, the Deputy Clerk. I find neither the Second Plaintiff had the authority to request or appoint Mr. Gayala to act as Clerk in the afternoon meeting nor did Mr. Gayala have the authority to assume that role.

41. The Plaintiffs led faction was well aware that the Assembly Clerk or Deputy Clerk was not available for the afternoon meeting, yet they went ahead and convened the meeting. I repeat what I said earlier. The election of the Provincial Governor is such an important matter that I cannot see why the Plaintiffs could not wait until the Third Defendant or his deputy was available to attend the meeting. I find the reason the Plaintiffs gave for going ahead with the meeting without either of them self-serving and unconvincing. I reject it.

42. The second issue is the quorum of the meeting. Section 8 (1) of the Provincial Governments Administration Act, 1997 (“PGA Act”) states, the quorum is half of the total membership of the Provincial Assembly. SO 28 states, it is one-third of the number of seats in the Assembly at the time. In their respective submissions parties accepted that the quorum is half of the total membership. Accepting half as the quorum and 13 being the current total membership of the Assembly, 7 is half of the total membership.

43. On the face of it each meeting had the required quorum. The morning meeting had 7 members and the afternoon meeting likewise. The further issue is whether some of the members were eligible to attend and participate in the meeting and election of the Provincial Governor. These members were identified as, Mr. Yawas and Mr. Pape. I add Mr. Panguma because it is alleged that he is the person who was the winner of the recount of votes and successor to Mr. Yawas. He attended and participated in the morning meeting.

44. As to the objection to Mr. Pape’s eligibility, the First and Third Defendants relied on the advice of the Minister for Inter-Government Relations contained in a letter to the Second Plaintiff dated 4^th July 2016. It stated, amongst other things, that the President of Mt. Bosavi RLLG should not be part of the Hela Provincial Assembly because Mt. Bosavi RLLG is still part of Nipa-Kutubu Electorate.

45. There is no further evidence from the Electoral Commission or Electoral Boundaries Commission to verify the claim by the Minister. On the other hand, there is evidence in the form of an Electoral Roll from the Electoral Commission which I accept showing that Mt. Bosavi (Part 2) LLG Ward 04-Bobole falling under Komo-Magarima Electorate. Secondly, it shows Mr. Pape’s name appearing on the Common Roll as elector no. 16.

46. I find that Mt. Bosavi RLLG is within the Komo-Magarima Open electorate and Mr. Pape being the President whose election is undisputed, is a member of the Hela Provincial Assembly. Thus, he is and was entitled to attend the Assembly meeting and vote in the election of the Provincial Governor.

47. As to Mr. Yawas, there is still a cloud of uncertainty hanging over his eligibility. It is not clear whether the election dispute was resolved. All we know is that the National Court ordered a recount of ballot-papers and the final result of the recount to be submitted to Tari District Court where the original petition was filed, for endorsement. Pending that, he was to remain President for Hulia RLLG. He does not produce an order from that Court to confirm that the result of recount was endorsed.

48. The First and Third Defendants asserted that the Senior Provincial Magistrate Mr. Eralia “was not impartial in the administration of his duties so far as the acceptance of the Judicial recount of the results for the Hulia LLG......” as ordered by the National Court.

49. As a result, a request was made to the Chief Magistrate to appoint another magistrate to confirm the results, which request was accepted and the Senior Provincial Magistrate at Mendi District Court Mr. Edward Kupo confirmed the results. It was on this basis that Mr. Paguma was sworn in by Mr. Kupo during the morning meeting and took part in the election of the First Defendant. However, there is no order from the District Court to confirm this assertion.

50. Thus, while the Defendants claimed that Mr. Yawas was succeeded by Mr. Panguma, there is no order from the District Court to confirm this assertion. In my view, this is a very contentious issue and must be resolved not by this Court but the District Court. In the meantime, Mr. Yawas has an order from the National Court in his favour to remain President until the District Court, otherwise orders. He is and was eligible to attend and participate in the meeting. As to Mr. Paguma, he will wait until the District Court decides.

51. Finally, I comment on the SOs of the Provincial Assembly. Section 7 of the PGA Act provides that the Provincial Assembly shall make SOs which shall, subject to the Organic Law and the Act, provide for, amongst other things, the calling, regulating and conducting of meetings of the Provincial Assembly. In my view, SOs complements the Organic Law and PGA Act to give effect to and maintain good order and discipline at Assembly meetings. Thus, it must be observed as if it were the Organic Law and the Act. Where it is breached and the breach or breaches are found to be serious, it can have the effect of voiding the outcome or result of the meeting.

52. In this case, parties accepted that the Hela Provincial Assembly has SOs which parties relied on to hold the two meetings on 5^th July. If the SOs was meant to provide a pathway for the Chairman and members of the Assembly to follow to convene meetings and maintain order within the Assembly then I do not think it was intended by the SOs that two different meetings can be convened on the same day by different factions of the Assembly, one in the morning and one in the afternoon to consider the same matter – election of the Provincial Governor. When this happens, neither can be correct.

53. While the meeting held in the morning was according to the prescribed time for holding an Assembly meeting, it was held in the absence of the Deputy Chairman of the Assembly and chaired by an unauthorised officer. As to the afternoon meeting, it was held outside the prescribed time and time fixed for the meeting. Furthermore, an unauthorised officer performed the function of the Assembly Clerk or in his absence, the Deputy Clerk. Each meeting had in attendance and participation, a member whose Presidential status is still unclear and unresolved. It must be resolved immediately.

54. Both sides have taken very firm positions in this dispute. Each maintained that each meeting was lawful. Based on the foregoing, I find that each meeting was called and conducted in breach of the SOs and illegal. I further find that breaches are so serious that they tainted the entire election of both parties. It follows neither the First Plaintiff nor the Second Plaintiff or the First Defendant can claim a valid entitlement to the position of Provincial Governor until the entire process of electing one is complied with or observed by all, collectively and individually. This will be done by the Assembly on a date, time and place to be fixed by the Clerk of the Assembly.

55. It is the judgment of the Court that the order sought by the Plaintiffs that either of them be recognised as legally elected Provincial Governor is refused. Further, there shall be a declaration that the election of the First Defendant as Provincial Governor is null and void, and of no effect. Costs shall be borne by each party. These orders shall take effect forthwith.

Judgment and orders accordingly.
___________________________________________________________
Ame Lawyers : Lawyers for the Plaintiffs
Posman, Kua Aisi Lawyers: Lawyers for the First and Third Defendants