N2135

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. 451 OF 2001

BETWEEN:

LOTHER JOEL
- Plaintiff -

AND:

KWALAM TANGAPI (PRESIDENT)
for and on behalf of WAMPAR LOCAL LEVEL GOVERNMENT COUNCILLORS
- Defendant -

Lae: Kirriwom, J
2001: 1, 8, 13 & 16 August

ELECTIONS – Local Level Government – Election of a head of a LLG – Motion of No Confidence on the head of a LLG – Process of Service of Notice incomplete– Validity of Motion – Premature Election of Alternate Head – Election declared invalid – Organic Law on Provincial and Local Level Government Elections, s. 32, Local Level Government Administration Act 1997, s.12(4)(a)(ii) and (5) and Standing Orders and Rules of Debate for Wampar Local Level Government - March 2001, sections 38 and 39.

Plaintiff was voted out of office as the President of Wampar Local Level Government by a two-thirds absolute majority of 19 councillors out of 29 in a motion of no confidence moved pursuant to section 12 of the Local Level Government Administration Act 1997 and sections 38 and 39 of Wampar Local Level Government Standing Orders and Rules for Debate 2001.

The only issue in the case was that the 14 days notice to all the councillors required by the Standing Orders was not complied with because not only that the council executive officer did not inform all the councillors of the proposed meeting for 9th July, 2001 when the motion was to be moved, the proposed date for the meeting did not fulfill the requirements of the law because the service of the motion was effected on him on 26th June, 2001 which meant that any meeting held on 9th July, 2001 to vote on the motion would be one day short of the required 14 days and if one were to exclude the 14th day, it would mean two days premature for the meeting itself.

Held, inter alia, that the election of the Defendant as the new head of Wampar LLG is declared null and void, and that the Plaintiff is ordered to be reinstated as the head of Wampar LLG.

Details in the judgment.

Case cited:
Hagai Joshua and Gimson Saonu v Arom Meya, Jerry Nalau and Mang Kembu [1988-89] PNGLR 188

Counsel:
G. Anis for the Plaintiff
M. Mugarenang for the Defendant

DECISION

16th August 2001

Kirriwom, J.: The plaintiff commenced these proceedings by originating summons seeking the following reliefs:

1.	That the election of the new government under the presidentship of Mr. Kwalam Tangapi is illegal.

2.	The procedures to conduct meetings and call for the motion of Vote of No-Confidence was not properly followed and was abused.

3.	The overthrow of the former government was highly politically motivated.

4.	That there was abuse of power in overthrowing the former legitimate government of the people of Wampar.

5.	Therefore that Restraining Orders be granted against the Respondent in that:-

(a)	The Respondent be restrained from officially taking the office of the Wampar Local level Government Council and to act as the Government of the day.

(b)	The Respondent, their agents and members be restrained from entering upon the premises and to take-over or use any properties belonging to the Wampar Local Level Government Council.

(c)	The Respondent be restrained from running or dealing with any affairs relating to the Wampar Local Level Government Council and calling of any meetings.

(d)	That the respondent and his party should not interfere with the Administrations of Wampar Local Level Government Council.

(e)	That the matter against the Respondent is before the National Court and therefore the Restraining Orders sought should be effective from the date issued until the matter is sorted out in Court.

(f)	Such further orders this Honourable Court deems meet.

The matter came before me initially on August 1, 2001 on application ex parte for interim restraining orders pursued by notice of motion. The reliefs sought in the notice of motion were substantially the same as those in para.5(a) – (f) of the originating summons. Although the application was pursued ex parte, it was however heard inter partes because the respondent Kwalam Tangapi was present in person following service of the documents on him.

The applicant was given the opportunity to present his case. On the materials before me filed in support for the granting of restraining orders, I was not convinced that such orders were necessary at all. The events in the case had already progressed to the stage where the respondent was already in the chair after being sworn in as the duly elected head of Wampar Local Level Government Council (Wampar LLG). As there was no real reason to believe that there was imminent threat of civil disturbance or riot at the Wampar Local Level Government Station, the only way to expedite the case was to allow the present arrangement to remain and the court must proceed straight into determining the substantive issue, provided that both parties accepted responsibility of ensuring that peace and tranquillity prevailed pending this hearing. Neither side showed any dissension to this suggestion. The case was therefore adjourned to allow the defendant time to instruct lawyers to represent him. 

The matter now comes before me for hearing on the substantive issue. The plaintiff is asking this court to declare the election of the new government of Wampar LLG under the presidentship or chairmanship of the respondent to be declared illegal. The other ancillary orders sought are of little or no consequence in so far as the finality of the dispute is concerned. I make this observation because in his prayer for relief, the plaintiff is not seeking reinstatement to the chair he was ousted from. However this could be easily remedied because if the election is declared null and void, the status quo is automatically restored ie, the Plaintiff reverts to his former position. I have not been advised otherwise by counsel in their final addresses. 

The plaintiff Lother Joel is the former president of Wampar LLG. He was removed from office of the president on 9th July 2001 in a motion of no confidence. The meeting elected in his place the respondent as the new head of Wampar LLG. The meeting was attended by 19 members or councillors who unanimously voted against the plaintiff and elected the respondent in his place. The plaintiff and 9 other councillors (who presumably supported him) were absent when the vote was taken. Neither the plaintiff nor the 9 other councillors were informed of the meeting of 9th July 2001. 

The plaintiff challenged the election on the grounds that proper procedures laid down by the Wampar Local Level Government Standing Orders and Rules for Debate, March 2001 ("Wampar LLGSOs") and the Local Level Government Administration Act 1997 ("LLGAA") were not complied with. In particular it was contended that-

•	14 days notice required by the Standing Orders to be given before a motion of no confidence is voted on was not given to all the members;

•	The notice was not served by the proposer of the motion as required by the Standing Orders;

•	Even if the notice was served as required by law, however belated, it was not communicated to the plaintiff and the 9 councillors with him to satisfy the requirements of 10 clear days under s.39(2) of the Standing Orders before such meeting could proceed and vote taken.

In support of his case the plaintiff filed five affidavits. These affidavits were deposed to by the following deponents:

•	Lother Joel – the Plaintiff, the ousted president
•	Topes Sito – Council Manager of Wampar Local Level Government 
•	Johnson Nobles – Executive Officer of Wampar Local Level Government
•	Bill Itama – a Ward Councillor of Wampar Local Level Government
•	Yaeng Ngawi – a villager of Wampar Local Level Government area.

The evidence from these witnesses can be summarised as follows. There was a general discontentment about delivery of goods and services to the people of Wampar Local Level Government area and the overall performance of the plaintiff’s government. In the wake of this general discontentment, a series of serious allegations were levelled at the plaintiff who was then the president of Wampar Local Level Government and his government. The allegations were: (1) poor leadership and incompetence in carrying out the responsibilities of the office of the president, failure to implement council resolutions and lack of consultation (2) misconduct in office namely misuse of the office of the president for immoral purposes, unauthorised spending of council funds, unlawful use of and damage to council vehicle. These allegations are contained in a two-page document headed Wampar Local Level Government directed to the President of Wampar LLG under the subject heading of "MUVIM MOSIN INOGAT BILIP LONG PRESIDENT" ( MOTION OF NO CONFIDENCE ON THE PRESIDENT) see Annexure "B" of Kwalam Tangapi’s affidavit sworn 10th August, 2001. This document was in circulation for some time because initially it was dated 5th July, 2001 which was hand-written in but was subsequently crossed out with a line ruled or drawn diagonally across the figure 5 and figure 9 was written in its place above the figure 5. So the date reads 9th July 2001 on the document. The document is signed by nine (9) councillors of Wampar Local Level Government.

This document was the subject of the motion of no confidence moved on the 9th of July 2001. There is no dispute that the plaintiff and the 9 members absent on the day of the vote were not informed or advised of this meeting. The explanation for this is given by Lother Joel in his affidavit, paras.3 – 12:

3.	On the 25th of April, 2001, the first petition was issued to me by the Opposition calling for my resignation from Office after sixteen (16) months of being in office. Attached here and marked with Letter "A’ is a true copy of the Petition.

4.	I replied to the said petition on the 2nd of May, 2001, and the Opposition realising that they did not have the grounds for the allegation made discontinued their motion. Attached and marked with letter "B" is a true copy of my reply to the Opposition Leader.

5.	I did due to the financial situation of the Wampar Local Level Government Council advised the Assembly in one of our meeting that our next meeting will be in August, 2001.

6.	The Opposition, though being fully aware of this notice and the current financial situation, the administration is facing, insisted in moving the motion.

7.	On the 26th day of June, 2001, I was then served the second petition requesting me to resign or a Vote of No-Confidence would be moved against me.

8.	The second Petition had the same grounds of allegations with allegations with only the date changed and so I replied to the petition informing them that the meeting will be held as scheduled in August due to the financial constraints the Administration is facing.

9.	I replied to the petition on the 27th of June, 2001, however, due to my involvement in a car accident, the service of the reply was delayed and was effected on the 05th of July, 2001.

10.	The service of the reply to the petition was effected by Mr Henry Somasi and witnessed by Mr Max Geamike at 1:00 pm at the gate of the State House, Lae.

11.	The Opposition refused acceptance of the reply and state that they will proceed with the Vote of No-Confidence without reading the contents of the reply.

12.	On the 09th of July, 2001, the Opposition, without notifying me or even the other council members and without my authorisation, went ahead and called for the Vote of No-Confidence and ousted me as a duly elected President out of office. (Emphasis is mine)

The affidavit of Bill Itama states that he was not advised of the meeting on 9th of July 2001. As a councillor he was required to be there at that meeting. He further states that he was not aware of any meeting being called by the President whether it was for the vote of no confidence or any other matter or business of the council. In other words, the responsibility for calling council meetings was that of the president’s and if he did call a meeting, notice would be given to all councillors. In this case, president never called any meeting on 9th July, 2001 and he was not aware of one nor was he notified at all.

Johnson Nobles is the executive officer of Wampar Local Level Government. He confirms the plaintiff’s contention of lack of notice of meeting of 9th July, 2001 to the plaintiff and others who were not present at the meeting. His affidavit goes further and explains in detail what took place prior to the meeting and on the day of the meeting when he was picked up to chair the meeting concerned. According to his understanding of the procedures, the whole meeting was a farce as it was highly irregular. He lamented what took place in paras. 2 - 13 of his affidavit. I set out these paragraphs below:

2.	The Petition of the Opposition (Respondent) was received on the 26th of June 2001.

3.	The allegations contained in the petition were mere allegations without proof and were the same allegations contained in the first Petition.

4.	The allegations were never debated on the floor of the Assembly of Wampar Local Level Government Council to prove them and the same were used to move the Motion of Vote of No-Confidence.

5.	The President (Plaintiff) was never allowed or given a chance to defend the allegations made against him.

6.	The Petition and the Notice of Motion on the Vote of No-Confidence was never registered and certified by me (the Executive Officer). (Emphasis is mine)

7.	That the circulation of the Notice of Motion within ten (10) days of receipt of the notice as required under Section 39 (2) of the Standing Orders was never complied with. (Emphasis is mine)

8.	On the 27th of June, 2001, I did sit with the Plaintiff and the Council Manager and discussed the petition and the Notice of Motion and following our discussion, the Plaintiff replied to the petition and the Notice of Motion advising the Respondent that the Meeting will be held as scheduled in August. Attached herein and marked with Letter "A" is a true copy of the letter.

9.	That Respondent refused acceptance of the letter and advised the Plaintiff that they will proceed with the Vote of No-Confidence without reading the contents of the letter.

10.	The Notice was served on the 26th June and the Motion was moved on the 09th of July 2001. N.B. It was not within the time required for moving the Motion for Vote of No Confidence which is fourteen (14) days. (Emphasis is mine)

11.	I, as the Executive Officer was picked up from my Office to go to Wampar Local Level Government Council chambers to chair the meeting accompanied by Mr John Tubian (Provincial Government Legal Officer), Mrs Shiela Harou (Provincial Programme Advisor and Mr Francis Moigalo (the Tutumang Clerk).

12.	There was no other Business discussed except the Motion on Vote of No Confidence. Attached and marked with Letter "B" is a true copy of the Special Meeting minutes dated 9th July, 2001.

13.	I submit that there were no proper administrative procedures followed to effect the Motion on Vote of No Confidence.

The Council Manager of Wampar LLG, Topes Sito also deplored what happened in his affidavit filed in support of the plaintiff’s case. He confirms that the meeting of 9th July 2001 was held without the knowledge of the plaintiff and without his authorisation as the incumbent president. He corroborates the plaintiff’s story of the petition against the president asking for his resignation. The grounds for such petition are basically the same grounds relied on for the vote of no confidence. The relevant paragraphs in Topes Sito's affidavit are set out below:

1.	I am the Council Manager of the Wampar Local Level Government Council and am obliged to swear to this my Affidavit.

2.	The administration of Wampar Local Level Government Council has problem with its financial situation and therefore could not call meetings unnecessarily as it is an expensive exercise.

3.	Due to such financial constraints the ousted President, Mr Lother Joel differed the meeting to be held in August, 2001 when funds were made available.

4.	The opposition, however, petitioned the President twice and following the second petition moved a motion for Vote of No-Confidence against MR Lother Joel (the President)

5.	The Meeting held to move the Vote-of-No-Confidence was called without the knowledge of the President (Mr Lother Joel) and without the authorisation from the President. (Emphasis is mine)

6.	The Meeting was held on the 09th of July, 2001 and the notice was served on the 26th of June, 2001 which was not fourteen (14) days as required under the Standing Orders. (Emphasis is mine)

7.	During that Meeting not the full members were present to move the Motion for Vote of No Confidence. (Emphasis is mine)

8.	The Tutumang Clerk, Francis Moigalo, the Morobe Legal Officer, John Tubian and the P.P.A., Shiela Harou were summoned to go to the Wampar Local Level Government Head Office to conduct the meeting.

9.	I submit that there has been abuse of process and power as such, the newly elected members of the Wampar Local Level Government Council were illegally elected and their election should be rendered null and void.

What is clear from all this evidence before the court is that the meeting held on 9th of July 2001 was not authorised by the then president Lother Joel, the required 14 days notice was not complied with, not all council members were given notice of this meeting and it was not attended by all council members. 

There are several issues that arise in this case:

1.	Was the notice of motion given in the circumstances of this case proper and in fulfilment of the requirements of section 12(4)(a)(ii) of the LLGAA and sections 38 and 39 of the SOs?

2.	Was the motion itself pursued in good faith, both in substance and spirit of the OLPLLGE, LLGAA and the SOs?

The Organic Law on Provincial and Local Level Governments ("OLPLLG") establishes the Local Level Governments ("LLG"). Section 29(1) of the OLPLLG provides for the composition of the LLGs where it says: ‘Members of the legislative arm of a LLG shall consist of (a) the head of the LLG who shall be elected in accordance with an Organic Law or an Act of Parliament.’ And under section 32 [Procedures of LLGs] the same OLPLLG provides: ‘The head of a LLG shall preside at all meetings of the LLG at which he is present.’ (Emphasis added)

Section 9 of LLGAA provides for the removal from office of the head of a LLG for neglect of duty. The relevant Minister responsible has the power to dismiss a head of LLG upon giving him due notice as required under the Act. Other procedures for the removal of a head of a LLG is as set out in section 12(3) of the LLGAA which includes through vote of no confidence passed by two-thirds absolute majority of the members of the LLG.

Section 12 of the LLGAA stipulates quite clearly that the election of a head of a LLG shall be in accordance with the OL or shall be in accordance with the Standing Orders of the LLG from amongst the elected members of the LLG.

Wampar LLG Standing Orders and Rules for Debate 2001 (SO) was adopted by Wampar LLG Assembly on 16 March 2000 as required under section 18 of the LLGAA. The SO make very specific provisions for Motions of No Confidence in Part VI: sections 38 – 42. The relevant sections are discussed below.

s.38	MOTION OF NO CONFIDENCE

A motion of no confidence may be moved without notice and shall comply with the requirements of section 12(4) and (5) of the Act, and shall be:-

(a)	in writing; and
(b)	seconded by one other Member. 

Subsections (3), (4) and (5) of section 12 of LLGAA provide:

(3)	The head of a LLG elected under subsection (1)(b) vacates office where –
a.	he ceases to be an elected member; or
b.	he is dismissed from office under section 9 or 10; or
c.	he is dismissed from office if the LLG by 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 LLG; and 
(ii)	of which not less than 14 days notice signed by a number of members of the LLG, being not less than one quarter of the total number of members of the LLG, has been given in accordance with the Standing Orders of the LLG; and 
(iii)	nominates another member of the LLG, who is eligible to be elected head of the LLG, to be the next head of the LLG; and
b.	may not be moved –
(i)	during the period of 18 months following the election of the head of the LLG; or
(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 LLGs.

(5)	The procedure for a motion of no confidence referred to in subsection (3)(c) shall be as set out in the SOs of the LLG.

s.39.	MOTION OF NO CONFIDENCE

(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 Member is give a copy of the motion a t 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 commence on the day after the day the motion is served on the chief executive officer under subsection (1).

The Standing Orders under section 39(1) provides that the proposer of the motion shall physically serve a signed a copy of the motion on the chief executive officer.
	
Subsection (2) of section 39 of SO provides that 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 Member is given copy of the motion at least 10 clear days before the motion is considered by the LLG. As to the period when the 14 days notice runs subsection (3) of section 39 of SO specifically provides: ‘ For the purposes of section 12(4)(a)(ii) of the Act, ie. LLGAA, the 14 days notice commences on the day after the day the motion is served on the chief executive officer under subsection (1).’

Both the Council Manager, Topes Sito and the executive officer of Wampar LLG, Johnson Nobles are of the view that the entire election of the respondent as the new head of Wampar LLG is flawed in that it was not conducted in accordance with the procedural rules and laws quite specifically set out under the Wampar LLGSOs and the LLGAA.

There was some dispute raised as to the date of service of the notice of the vote of no confidence. The Plaintiff maintained that the service was effected on the executive officer, Johnson Nobles, on 26th of June 2001 while the respondent says that service was effected on 22nd of June, 2001 when he delivered the notice to Mr. Topes Sito, the Council Manager. But he says that the Manager refused to accept service and instructed him to serve it on the executive officer. It was submitted on behalf of the respondent that the SOs [s.39(1)] stipulated for service to be effected on the chief executive officer who, for all practical purposes, is the Council Manager. Therefore the service on the Council Manager, albeit refused, must be deemed to have been properly effected for purposes of s.39(1) of SOs.

I do not accept this submission by the respondent. Firstly, I do not think there was a proper motion of no confidence and secondly, it was not moved in good faith. I do not make this observation lightly. This motion was pursued in haste. In the normal course of events, as there was a petition pending, the president ought to have been given the opportunity to respond to the serious allegations against him in the floor of the assembly. Procedures for dealing with petitions are set out in sections 22 and 23 of the Standing Orders and Rules of Debate of Wampar LLG. Those allegations were still pending debate and resolution in a meeting proposed for August, 2001. 

A motion of no confidence brought under the eve of a petition against the head of a LLG that is pending debate and resolution could conflict with section 12(4)(a)(i) LLGAA. This is the first difficulty I have with annexure "B" in Kwalam Tangapi’s affidavit of 10th August, 2001. This document can be compared with annexure "A" in Lother Joel’s affidavit of 25th July, 2001 which is directed to the president and dated 25th April, 2001 with the subject heading: PETITION BILONG MOTION LONG PRESIDENT LONG RESAIN ( PETITION SEEKING RESIGNATION OF THE PRESIDENT). The contents are in almost identical terms as the purported motion for vote of no confidence except that the petition is asking the president to step down from office.

There was a further irregularity in the service of the motion in that section 39(1) of SO provides that the proposer of the motion shall physically serve a signed copy of the motion on the chief executive officer. That did not happen here because the motion was served on the executive officer by the alternate president in person and not by the proposer of the motion. I find that the attempted service on the Council Manager Tope Sito did not constitute service for purpose of s.39(1) of the SOs of Wampar LLG. I find as fact that service of the motion on the executive officer was effected on 26th June, 2001. Therefore counting from the 27th June, 2001 to the 9th of July, 2001 as required by section 39(3) of the SOs, the meeting held on the 9th of July, 2001 does not meet the requirements of section 12(4)(a)(ii) of the LLGAA and section 39(3) of the SOs of Wampar LLG. The meeting was one – two days premature.

In any event, given the overwhelming evidence of lack of notice to the plaintiff and 9 other members of the Wampar LLG who were not at the meeting of 9th July, 2001, there was never any effective service at all. For there to be a service in accordance with the LLGAA and the SOs, section 39(2) of the SOs is most relevant. Once the chief executive officer is in receipt of the motion for no confidence, he shall make or cause to be made sufficient copies of the motion and shall ensure that each Member is given a copy of the motion at least 10 clear days before the motion is considered by the LLG. This is a mandatory requirement. There is undisputed evidence that this did not eventuate, consequently service was incomplete. There has not even been any substantial compliance of this statutory requirement. Service can only be complete upon the members affected being properly put on notice. Furnishing a signed copy to the chief executive officer does not constitute service until the members have been given 10 clear days by the executive officer to absorb the contents of the motion before it is moved. 

While the conduct of the meeting itself for the purpose of the motion, on the face of it may have been in compliance of the law and the SOs, the convening of the meeting itself could be irregular in that only the head of the LLG can convene a meeting. In this case, the meeting was convened by the respondent and 18 councillors, in the absence and without the authorization of the president, in fundamental breach of convention and the OL, see s.32 of OLPLLGE.

In the upshot of all these overwhelming evidence, I am compelled to conclude that:

(1)	the meeting of the 9th July, 2001 was not properly constituted in that neither the head of the Wampar LLG or the deputy head authorised the meeting to proceed;

(2)	the motion of no confidence was not properly before the assembly on the 9th July, 2001 because the service on the executive officer was not effected until 26th June, 2001. This meant that the 14th day fell on 10th July, 2001, and the earliest date the motion should have been considered was 11th July, 2001; 

(3)	the motion was not properly before the assembly because not all the members were placed on notice of the meeting by the executive officer and not all members were in attendance to vote on the motion. 

What happened here is history repeating itself in Morobe Province when some eleven years ago the Speaker of Morobe Tutumang suspended thirteen government members led by Hagai Joshua for three months for failing to attend a session of the Tutumang called for purposes of putting a vote of no confidence on the Premier. Following their suspension, and in the absence of the thirteen members, the Tutumang with the entire opposition in full attendance, voted on the motion of no confidence on the government of Hagai Joshua. The motion was passed and Jerry Nalau was elected the Premier. Hagai Joshua went to court and number of issues were raised some were similar to the one before me. Only 13 days notice was given in that case whereas here only 12 days notice was given and on the 13th day the meeting was convened. The court therefore held that the motion was not properly before the court- see Hagai Joshua and Gimson Saonu v Arom Meya, Jerry Nalau and Mang Kembu [1988-89] PNGLR 188 at p.193. The court further proceeded to uplift the suspension of the 13 members of the Tutumang after declaring their suspensions invalid. Having held that the motion for the vote of no confidence was not properly before the Tutumang, it followed that suspension of the members concerned for non-attendance of the meeting that was not validly constituted was therefore null and void. By comparison, the facts here constitute a similar scenario where the composition of the meeting of LLG Assembly were only those councillors who supported the motion, and those who might have opposed it were all omitted from attending for reasons unknown and were not present when the vote was taken. Had both the Council Manager and the Council Executive Officer been cross-examined on this aspect, they probably would have thrown some light on this. After all both were employed by the government to oversee and facilitate the smooth operation of the LLG. 

While the events, since the election following the vote of no confidence on 9th July, 2001, have overtaken the proceedings before this court, elected Councillors of the people in Wampar LLG or Council area must realise that as law-makers in the Assembly where they are mandated to pass laws for good governance, they are bound by the laws they make just like everybody else. There is no short cut nor are they immune from abiding by the law. The non-compliance with the requirements of the law is a fundamental breach that must clearly negate or invalidate the election of the respondent as duly elected head of Wampar LLG. The formal swearing in of the respondent does not legitimize what is already illegal – see Joshua Hagai and Gimson Saonu v Aron Meya and Jerry Nalau (supra). The respondent was not properly elected into office as the new head of Wampar LLG and as such his election is void ab initio. The court must therefore declare the election void and the status quo is restored. 

Notwithstanding the findings of this court and the orders herein made, the court is mindful of the wish of the overwhelming majority of the councillors who want change in the leadership in the government which is quite obvious from the style of voting on 9th July 2001. The court can only express, with regret, that if the majority wish must be recognised and given effect to, it must be done according to law. It must be borne in mind that people elect leaders into government to represent them and be their mouthpiece for progress and development. Leaders must not use their privileged positions for their own political or selfish ambitions. Any serious business, such as a motion of no confidence on a leader, must be properly and promptly addressed in a professional manner, according to the defined rules and procedures set down by the law and the Standing Orders, not in haste. 

The court therefore makes the following orders:

1.	That the election of the Defendant, Kwalam Tangapi, as the head of the Wampar LLG is declared null and void;

2.	That the Plaintiff remains the head of Wampar LLG.

3.	Plaintiff’s costs be paid by the Wampar LLG.
________________________________________________________________________
Lawyers for the Plaintiff: Paula Yayabu Lawyers
Lawyers for the Defendant: Morobe Provincial Government Legal Branch