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National Court of Papua New Guinea |
N8211
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS. NO. 398 OF 2019
BETWEEN
MARK SAKAI
First Plaintiff
AND
DONALD WASAI, SAKAI KEI & RONNIE MUTU
Second Plaintiffs
AND
JOHN KAPI NATTO, CHAIRMAN, NAMO’APORO LANDOWNERS ASSOCIATION INCORPORATED
First Defendant
AND
EMMA ATAKARO, PETER HENO & CLARK FASO, MEMBERS OF THE MANAGEMENT COMMITTEE, NAMO’APORO LANDOWNERS ASSOCIATION INCORPORATED
Second Defendants
AND
TERENCE HETINU, RETURNING OFFICER
Third Defendant
Waigani: Makail, J
2019: 10th December & 2020: 25th February
LAW OF ASSOCIATION – Dispute over election of members of Management Committee of Association – Notice of calling of Special General Meeting of Association –14 days notice requirement – Notice of meeting felling short of 14 days notice requirement – Purpose of notice of meeting discussed
Cases Cited:
John Kapi Nato & Ors v. Mark Sakai & Ors (2019) N7866
Sir Rabbie Namaliu v. Chris Haiveta (2004) N2693
Joel v. Tangapi (2001) N2139
Counsel:
Mr. F. Alua, for Plaintiffs
Mr. E. Waifaf, for First & Second Defendants
No appearance, for Third Defendant
JUDGMENT
25th February, 2020
1. MAKAIL, J: The plaintiffs commenced this proceeding to challenge the election of members of the Management Committee of Namo’aporo Landowners Association (“Association”) on two grounds. They are:
2. They seek, amongst other orders, to have the election declared null and void and an injunction to restrain the first and second defendants from holding themselves out and performing the functions of the Management Committee of the Association and costs.
3. Based on the various affidavits which were tendered and marked as exhibits “P1” to “P3” and “D1” to “D2”, there is no dispute that the plaintiffs are members of the Association. Following a previous dispute over the members of the Management Committee and commencement of proceedings OS No 385 of 2014 by Mr John Kapi Nato & Ors against Mr Mark Sakai & Ors, on 9th May 2019 the National Court presided by David J upheld the proceedings and, amongst others things, ordered another election to be held, this time with the full membership of 117 Incorporated Land Groups (“ILGs”) to participate in the election: John Kapi Nato & Ors v. Mark Sakai & Ors (2019) N7866.
4. Following that and pursuant to the National Court decision, the Association convened two meetings. These were:
5. Prior to that, the first and second defendants published a notice of meeting in the Post Courier on 20th May 2019. The notice stated:
“2. On 30th May 2019 – members shall have a Special General
Meeting
Venue: Hilton Hotel, Port Moresby, NCD
Time: 8:00 am to 12:00 pm
Agendas:
(i) Adoption of a Revised Constitution
(ii) Appointment of venue for AGM for elections
(iii) Appointment of date to close nomination for positions as Office bearers of NLA.
Venue: To be Confirmed on 30/05/2019
Time: To be Confirmed on 0/05/2019
Agendas:
(i) Election of Office Bearers
(ii) Appointment of venue for AGM for elections”.
6. However, the General Meeting scheduled for 30th May 2019 never materialised.
7. Another notice was placed on National newspaper of 29th May 2019 that a General Meeting will be held on 7th June 2019 at 10:00 am at Hilton Hotel, Port Moresby, NCD. The agenda were:
(i) Adoption of a Revised Constitution.
(ii) Appointment of venue for AGM for elections.
(iii) Appointment of date to close nomination for positions as Office bearers of NLA.
8. The date for the Court ordered AGM was still scheduled for 8th June 2019. There is also no dispute that in each meeting, the plaintiffs attended but abstained after Mr Sakai’s objection to the meeting of 7th June 2019 from progressing on the ground that the notice was short of the 14 days notice requirement was waved down and the meeting progressed. They also attended the meeting of 8th June 2019.
Notice of Meeting
9. Relying on Section 9.1 of the Association’s constitution which provides for a 14 day notice of General Meeting to be given by the Management Committee, the plaintiffs submit that the notice of meeting was published in the newspaper on 30th May 2019 for the calling of the meeting to be held on 7th June 2019. Counting 14 days from 30th May 2019, the 14th day fell on 13th June 2019. They submit that the meeting held on 7th June 2019 fell short of the 14 days notice requirement. Similarly, the meeting held on 8th June 2019 fell short of the 14 days notice requirement.
10. They further submit that a meeting conducted in breach of the 14 days notice requirement is void and any resolutions passed in that meeting is also void. They cite Sir Rabbie Namaliu v. Chris Haiveta (2004) N2693, a case which decided a dispute involving two meetings called under the Pangu Pati constitution for the expulsion and election of the Parliamentary Leader of Pangu Pati . As to the requirement of notice the Court observed:
“The first question is whether notice of the meeting was validly given in accordance with the constitution........”.
11. It held that:
“In the final analysis, both meetings were convened in contravention of Clause 39.1 [Pangu Pati Constitution]. I find the notice of meeting given by the Second Plaintiff to be not in accordance with Clause 39.1 and therefore invalid.”
12. They submit that on the authority of the Pangu Pati dispute case (supra), the Court should find that the notice of meeting for each meeting of 7th and 8th June 2019 was in breach of the 14 days requirement and rendered it and resolutions passed illegal, null and void.
13. The other ground they rely on to emphasise the importance of complying with the 14 days notice requirement is that, if the first and second defendants had run out of time, they should have applied to the Court to vary its order of 9th May 2019 and extend time for them to give sufficient notice to the members to attend.
14. The first and second defendants submit that the meeting of 7th June 2019 was called and held in accordance with the Court order of 9th May 2019 where the National Court ordered at paragraph 7 that the meeting “which shall take place within one month from today”.
15. They say that it was not feasible for a meeting to be called and held early because members of the 117 ILGs were yet to be identified. It was not until 30th May 2019 when it was done and by then a week was left for them to call and conduct a meeting which they did on 7th June 2019.
16. I accept the principle stated in the Pangu Pati dispute case (supra) that a notice of meeting must be given in accordance with the constitution of an association. Where a notice is given in breach of the constitution, it is invalid.
17. However, that case can be distinguished on its facts because first, it was not clear from the notice of meeting if the meeting was to be held at the Parliament house or elsewhere and secondly, the dispute was not in relation to the period of notice of meeting. In this case, the contentious issue is the period of notice for calling of meeting. It was claimed that the notice was short and mounted as a ground to invalidate the meeting and any resolutions passed.
18. Another factual distinction was identified in Joel v. Tangapi (2001) N2139 where a notice of meeting was short and not all members entitled to notice were served. As a result, the members did not attend and the meeting was declared void. In this case, it was not claimed that not all members attended. The plaintiffs attended. If the purpose of the notice of meeting is to inform those authorised to attend the meeting of the meeting, date, time, venue and agenda and all attend, the purpose is achieved. It would not make sense to invalidate the meeting and its resolution passed.
19. As there is no contest that the plaintiffs were members of the Association and were given notice of meeting of 7th June 2019 and notice of meeting of 8th June 2019 and significantly, attended each of the meetings, it contradicts their claim that the meetings were illegal. Relevantly, on 7th June 2019, all of the plaintiffs attended the meeting and the first plaintiff objected to the meeting from being held because the notice fell short of the 14 days notice requirement but did not carry. They then abstained from voting on the agenda at the meeting.
20. The first and second defendants and other members of the Association proceeded with the General Meeting and passed resolutions adopting an amended constitution incorporating 59 additional ILGs and setting the quorum at an AGM at sixty (60) General Committee members.
21. As the plaintiffs were notified or received notice of each meeting of 7th and 8th June 2019 respectively and attended, I am not satisfied that the fact that the notice of meeting fell short of meeting the 14 days notice requirement rendered each meeting of 7th and 8th June 2019 and the resolutions passed illegal, null and void. On the contrary, the notice of meeting has served its purpose. This ground is dismissed.
22. As to the second ground, it can be disposed in this way. As the plaintiffs attended the meeting of 7th June 2019, objected to it from progressing, were waved down by the lawyer of the Association but did not pursue it by demanding the interim Chairman to table it and call for a vote to be taken. Instead they abstained from further conduct of the meeting. By their conduct they have acquiesced to the meeting to progress and resolutions passed. For this reason, it is of grave doubt if they can now turn around and complain that the meeting was not conducted within the spirit and intent of the order of the Court of 9th May 2019.
23. In fact, there was nothing untoward by the members of the Association for holding the meetings. The holding of each meeting was consistent with the Court order of 9th May 2019 which required them to hold meetings within one month from the date of the order. Finally, it was not necessary for the defendants to seek variation of the Court order and more time to give the notice of meeting in each case. This ground is also dismissed.
24. In the final result, the plaintiffs have failed to make out a case where the relief sought in the originating summons filed 14th June 2019 will be granted. The proceeding will be dismissed with costs to the first and second defendants, to be taxed, if not agreed.
Judgment and orders accordingly.
________________________________________________________________
Alua Lawyers: Lawyers for Plaintiffs
Edward M. Waifaf Lawyers: Lawyers for the Defendants
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URL: http://www.paclii.org/pg/cases/PGNC/2020/35.html