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Wambun v Talipan [2006] PGNC 134; N3170 (5 October 2006)

N3170

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 62 OF 2005

BETWEEN:

PAUL WAMBUN
Plaintiff

AND:

ANDREW TALIPAN
First Defendant

AND:

ENGA PROVINCIAL GOVERNMENT
Second Defendant

Waigani: Davani, .J
2006: 25 September
5 October

Counsel:

D. Dotaona, for the plaintiff
D. Steven, for the second defendant
First Defendant, in person

DECISION

5 October, 2006

1. DAVANI .J: On 11 February, 2005, the plaintiff through his lawyers filed Originating Summons seeking various declaratory orders. I set these out in full;

1. An order in the nature of a Declaration that the election of the first defendant as the President of the Ambum Local-level Government on or about 17 May, 2004 in the circumstances of this case is null and void and of no effect;

2. An order in the nature of a Declaration that the plaintiff is the properly elected president of the Ambum Local-level Government;

3. An order compelling the second defendant to restore the plaintiff to his original position as president of the Ambum Local-Level Government with entitlements since the decision of 17 May, 2004;

4. An order staying the decision of the Wabag District Court made on or about 18 October 2004 in proceedings Complaint No. 427 of 2004;

5. Damages;

6. Costs of and incidental to these proceedings;

7. For such further and other relief as this Honourable Court may deem fit.

2. According to the endorsement on the court file, on 10 August, 2006, at the pre-trialling before Kandakasi .J, he directed that parties comply with the following;

"1. That trial will be by way of affidavits.

2. That parties are to ensure relevant authorities are given as to the Evidence Act by 18.8.06.

3. Parties to prepare written submissions...to be handed up to court.

4. Trial 21.9.06.

5. To file Notice of Trial by 18.8.06."

3. The parties rely on several affidavits which I refer to in these reasons. I also refer to the ‘Statement of Agreed and Disputed Facts and Legal Issues’ (‘Statement’) consented to and signed by lawyers for all parties dated and filed on 10 August, 2005.

4. As to compliance with the directions, none of the parties have filed written submissions. None of the parties have filed material or at least Notice of Intention to Rely on affidavit, advising the court of the affidavit material they will be relying on and none of the parties have filed Notices objecting to use of affidavits or Notices requiring deponents for cross-examination.

5. The agreed facts as taken from the Statement are these;

1. The plaintiff was elected as the President of the Ambum Rural Local-Level Government (Ambum RLLG) on 20 September, 2002;

2. On 24 March, 2004, the plaintiff was served with a copy of a motion for a vote of no confidence;

3. On 25 March, 2004, the notice of motion of no confidence was given to the District Administrator;

4. On 29 March, 2004, copies of the motion were distributed to all the councillors by the District Administrator for a meeting to consider the motion of no confidence on 16 April, 2004, at 10.00am;

5. On 16 April, 2004, the meeting did not proceed but was deferred to 29 April, 2004, at 10.00am to be held at the Ipatas Centre;

6. On 29 April, 2004, all the councillors gathered at the Conference Room of the Ipatas Centre. The meeting was deferred to 2.00 pm that afternoon at the direction and advice of the Provincial Administrator because court order was likely to be served preventing the convening of the meeting;

7. At 1.00 pm on 29 April, 2004, a court order was served restraining the motion from proceeding. This Court order was in respect of WS No. 1083 of 2003 by Jacob Pesara as plaintiff against the Provincial Administrator and the Enga Provincial Government;

8. In WS No. 1083 of 2003, Jacob Pesara claimed that he was the properly elected President of the Ambum RLLG;

9. On 10 May, 2004, Jacob Pesara discontinued proceedings in WS No. 1083 of 2003;

10. On 13 May, 2004, the District Administrator issued a notice that the deferred meeting would be held on 17 May, 2004, at the Ipatas Centre Conference Room;

11. On 14 May 2004; the plaintiff took out an ex parte restraining order from the Wabag District Court against the District Administrator restraining the District Administrator from conducting the meeting;

12. On 17 May, 2004, the District Administrator made an application to set aside the ex parte orders of 14 May, 2004, which was granted and the Court allowed the meeting to proceed;

13. The District Administrator then proceeded to conduct the scheduled meeting at 10.00am at the Ipatas Centre where all the council members were gathered;

14. The first defendant was then voted as the President of the Ambum RLLG and sworn in thereafter;

15. On 14 May, 2004 the District Administrator Mr Alphonse Kipakapu was suspended by the Provincial Administrator and is still under suspension;

16. The Provincial Administrator then appointed Mr Abraham Nane in place of Mr Kipakapu as District Administrator for the Kompiam District;

17. Whilst under suspension Mr Kipakapu chaired the Ambum RLLG meeting that entertained the motion of no confidence against the plaintiff on 17 May, 2004.

6. The agreed legal issues are;

1. Whether the meeting of the Ambum RLLG held on 17 May, 2004, was in breach of s. 23 (5) of the Local-level Governments Administration Act 1997 (‘LLGAA’);

2. Whether or not the Ambum RLLG could hold a meeting although the National Parliament did not sit on 17 May, 2005, which was during the period of the 10 meeting of the National Parliament?

3. Whether the meeting of the Ambum RLLG held on 17 May, 2004, was invalid given that the Chairman of the meeting was under suspension by the Provincial Administrator?

7. I consider all issues together.

8. It is necessary that I set out s. 23 (5) of the LLGAA. It reads;

"23. Meetings of a Local-level Government

...

(5) Unless the Minister gives written authority to the contrary a meeting of a Local-level Government shall not be held at the same time as a meeting of the Parliament or of the Provincial Assembly."

9. Mr Dotaona relies on the following affidavits;

i. Don Pandan, Acting Clerk of the National Parliament, sworn and on 4 August, 2006, and filed on 9 August, 2006.

ii. Basil Kambuliagen, Senior Parliamentary Officer, sworn on 25 May, 2005 and filed on 26 May, 2006.

iii. Paul Wambun, plaintiff, sworn on 28 April, 2005 and filed on 25 May, 2005.

10. Mr Steven does not rely on any materials. Mr Talipan, the first defendant was in court in person. His lawyer did not appear. So all he did was make submissions from the bar table.

Discussion of issues

11. In submissions, Mr Dotaona focused only on issues 1 and 2. Mr Steven, in court for the second defendant, could not assist the court because he submitted, he only picked up the file in the morning, and was not familiar with the matter. Mr Talipan asked the court not to grant the orders sought by the plaintiff.

12. Mr Dotaona submits that the National Parliament would have sat on the day the second defendants elections were conducted which would in effect mean that the both defendants have contravened s. 23 (5) of the LLGAA. In saying that Mr Dotaona referred the court to the affidavit of the Senior Parliamentary Officer, Basil Kambuliagen. He deposes that he is aware the tenth meeting of the National Parliament took place from Tuesday 27 April, 2004, to Friday 28 May, 2004. Attached to his affidavit are meeting dates of the National Parliament’s second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth and sixteenth meeting. But he has not said where these dates are extracted from.

13. As for Parliament’s tenth meeting, the dates he deposes are that Parliament sat on 27 April, 2004 and 11, 12, 13 and 14, 18, 27 and 28 May, 2004. The 17 May, 2004, is not mentioned.

14. On my questioning of counsel Mr Dotaona, that Parliament could have sat on 17 May, and whether he could produce better records to verify this, Mr Dotaona could only go so far as saying the records before me where all he was relying on and which spoke for themselves. Neither Mr Steven nor Mr Wambun could produce any tangible material that would suggest that Parliament did sit on 17 May, 2004.

15. All Counsel did not file written submissions as directed by Justice Kandakasi. I pointed out to counsel that there were Constitutional issues requiring interpretation as to various matters including the nature of a "meeting" and whether the dates Parliament sat during its tenth meeting were in fact regular sessions of Parliament. Another issue also is as to whether a date not "sat" during a meeting, in this case Parliament’s tenth meeting, can be deemed to be a meeting because it falls within that period.

16. Although directions were given by the court as to the filing of affidavit evidence and affidavits were filed, none of the defendants filed Notices to Cross-examine the various deponents. And the defendants also did not press for cross-examination of the deponents. And in the absence of cross-examination, the court again was confined to the affidavits material before it.

17. And I must voice what I consider to be a complete lack of interest by the defendants lawyers to the defence of these proceedings. I say this because the first defendant’s lawyer of Manu and Associates, Mr Garap, failed to turn up at court, leaving his client to fend for himself. Of course his client, not knowing procedure, could only make submissions from the bar table. He said his lawyer knew that his trial was on but did not know why he was not in court. And the court also did not receive any advice as to Mr Garap’s unavailability. And for Stevens Lawyers, representations were made by Mr Steven as to the change in trial dates hence the lawyer with carriage of the matter could not attend. But I should point out, that in accordance with Rule 10 of the Listings Rules of 2005, I convened a status conference on 4 September 2006, being the first day of the circuit month, and none of the parties in this case appeared. As for the change in the trial dates, letters were sent to all counsel advising of the courts inability to sit on 21 September, 2006 and rescheduling the case to 25 September, 2006. If counsel could not attend on that day because of other commitments, they could have advised the Deputy Registrar – civil, during the period between 21 September, 2006 and 25 September 2006. But this was not done.

And as a result, with little or no assistance from counsel, the courts decision may be confined only to the unchallenged material before it.

Conclusion

18. In summary, Basil Kambuliagen deposes that Parliament did not sit on 17 May, 2004. Don Pandan, the acting Clerk of the National Parliament also deposes that Parliament did not sit on 17 May, 2004. I find that although on the face of it, the plaintiff may not have contravened s. 23 (5) of the LLGAA, I find counsel have not put forward sufficient material for me to make a proper determination on all issues which are very important, Constitutional issues. If this court is to find that the meeting of the Ambum RLLG held on 17 May, 2004, is in breach of s. 23 (5) of the LLGAA, it means the court must find at the same time that the Ambum RLLG can hold a meeting during the period of Parliaments 10 meeting because the vote of no confidence was moved on a day parliament did not sit even though the vote was conducted during the period of its tenth sittings. And I did not hear any submissions from all counsel on this issue. And furthermore, all counsel including Mr Dotaona, did not make submission on the suspension issue, which are in fact pleaded in the reliefs sought in the Originating Summons. In fact, if the court were to find that the LLG meeting contravened s. 23 (5) of the LLGAA then it follows that the reliefs sought in the Originating Summons will be granted.

19. As I stated in my reasons, relying on the inadequate material before me, I am unable to make a decision because all counsel have not addressed me on very important issues. It seems none of them were prepared for his trial.

20. Exercising powers available to me under s. 155 (4) of the Constitution and with a view to ensuring that justice is done, I will not grant or refuse these orders but will direct that the matter return to the Listings court for a trial date to be allocated in October 2006 and for the matter to then properly proceed to hearing but for counsel to ensure that all pre-trial procedures in relation to reliance on affidavits and filing of submissions are completed. Counsel must also ensure their submissions cover all the issues I have raised for the court to make a fair and just decision.

_____________________________

Dotaona Lawyers: Lawyer for the plaintiff
Stevens Lawyers: Lawyer for the second defendant
First Defendant, in person