N5486
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 715 OF 2005

ANTON NAMUESH
Plaintiff

V

JOHN AIMOS
First Defendant

FANTSON YANINEN
Second Defendant

Madang: Cannings J
2006: 20 November,
2007: 23 February

LOCAL-LEVEL GOVERNMENT – motion of no-confidence in Mayor – failure of District Administrator to convene meeting to allow motion of no-confidence to be moved – Local-level Governments Administration Act, Section 12.

The plaintiff is a member of a local-level government council. Other members of the council wanted to move a motion of no-confidence in the mayor and nominate the plaintiff as his replacement. The provincial administrator and the district administrator did not want the motion moved, so the plaintiff commenced proceedings in the National Court seeking orders that a council meeting be convened and the motion of no-confidence be moved.

Held:

(1)	The orders sought were refused as it is now too late to bring a notice of no-confidence.

(2)	The plaintiff was, however, awarded the costs of the proceedings due to the improper conduct of the defendants. 

Cases cited

No cases are cited in the judgment.

ORIGINATING SUMMONS

This was an application for an order to call a local-level government council meeting.

Counsel

B Meten, for the plaintiff

23rd February, 2007 

1. CANNINGS J: This is a ruling on an application by a member of a local-level government council for an order directed to the district administrator requiring him to call a council meeting to address a motion of no-confidence in the Mayor.

2. The plaintiff, Anton Namuesh, is a member of the Wewak Urban Local-level Government Council, East Sepik Province. In early 2004 a number of other councillors prepared motions of no-confidence in the Mayor, Terence Kori, and nominated the plaintiff as his replacement. Those motions have never been moved; the reason being, the plaintiff asserts, that the defendants have by acts of commission or omission, prevented them being moved.

3. The first defendant is the Wewak District Administrator, John Aimos. The second defendant was at the relevant time the ESP Provincial Administrator, Fantson Yaninen.

4. Four affidavits have been adduced in evidence. The first three are by the plaintiff. The last one is by the defendants' lawyer, the ESP Provincial Legal Officer, John Yamboli. These affidavits disclose the following train of events.

5. On 15 March 2004 the second defendant issued a circular to all district administrators, duty provincial administrators and the provincial legal officer on the subject of motions of no-confidence in heads of LLGs. He stated that one of the matters for debate in the next session of the National Parliament, in June 2004, was the proposal to amend the law and increase the grace period regarding no-confidence motions in LLG presidents from 18 months to 36 months after the last general election. When that circular was issued the 18-month grace period had just ended. The start of the grace period was the first day after the day fixed for the return of the writs for the 2002 elections, 30 July 2002. Eighteen months after that was 30 January 2004. The second defendant concluded:

It is therefore appropriate that all intending motions of no confidence be not entertained until after the June session of the National Parliament.

6. Despite the second defendant's circular, on 6 April 2004, a member of the Wewak Council, Councillor Gilbert Kurufher, prepared a notice of a motion of no-confidence in Mr Kori, signed by himself and seven other councillors. He gave it to the first defendant, who is the Council's CEO. The motion nominated the plaintiff as the replacement mayor. The notice enclosed the motion and requested the first defendant to "act appropriately" under the Council's Standing Orders, Sections 11(2) and 39(2).

7. On 26 April 2004 the plaintiff wrote to the first defendant to voice his concern over the delay in dealing with the matter.

8. Councillor Gilbert Kurufher served a similar notice on the first defendant on 3 May 2004 and made a similar request.

9. The first defendant did not accede to those requests and on 15 June 2004 a similar notice was served on him, this time signed by Councillors Charlie Buatu and Albert Singer, again nominating the plaintiff as the new mayor.

10. On 23 June 2004 the Provincial Legal Officer, John Yamboli, gave a legal opinion that Councillor Buatu's motion was defective.

11. On 30 June 2004 the first defendant wrote to Councillor Buatu and told him he was deferring the council meeting until further notice, due to there being a Joint District and Budget Planning and Priorities Meeting in Port Moresby the next day, 1 July 2004.

12. On 2 July 2004 Councillors Buatu and Singer signed an amended motion of no-confidence, in accordance with Mr Yamboli's advice. 

13. Mr Buatu responded to the first defendant on 7 July 2004 and pointed out that the law had not changed and repeated his request that a council meeting be arranged to address the matter. 

14. By 21 July 2004 the council meeting had still not taken place and an officer of the Provincial Administration, Lucas Engime, Provincial Adviser LLG & Village Courts, wrote to the first defendant, requesting that he set a date for the meeting and expedite the matter.

15. In August 2004 the law on no-confidence motions changed, as anticipated in the second defendant's circular of 15 March 2004, and motions of no-confidence could no longer be moved. That remained the position until July 2005 when the law changed again, back to the original law.

16. In the interim period, on 15 February 2005 the plaintiff wrote to the first defendant notifying him of a National Court decision (he did not say which one) that motions of no-confidence registered before August 2004 could proceed.

17. Then, by a letter dated 24 May 2005, the Acting Secretary of the Department of Provincial and Local Government Affairs, Tau Vali, advised the first defendant that any motions of no-confidence introduced before the date of the first change in the law, 9 August 2004, could be entertained.

18. On 15 July 2005 the plaintiff filed the current proceedings in the National Court at Madang.

19. I heard the substantive matter on 20 November 2006. Mr Meten appeared for the plaintiff and there was no representation for the defendants. Mr Meten notified the court that there had still been no motion of no-confidence moved.

THE LAW

20. During the period over which this saga unfolded the law has changed twice.

21. Until August 2004 a motion of no-confidence in the head of a LLG was permitted and regulated by Section 12 of the Local-level Governments Administration Act 1997.

22. In August 2004 the Parliament passed the Local-level Governments Administration (Amendment) Act No 9 of 2004, which repealed the provisions of Section 12 that permitted motions of no-confidence. So the head of a LLG could not be dismissed from office by a successful motion of no-confidence. The question remained whether a motion registered before August 2004 could be moved. But it was clear that a motion brought into existence after the date of commencement of Act No 9 of 2004 could not be moved.

23. In September 2005 the law changed again. The provisions of Section 12 that previously permitted no confidence motions were restored by the Local-level Governments Administration (Amendment) Act No 4 of 2005. It was clear that a motion brought into existence after the date of commencement of Act No 4 of 2005 could be moved.

24. Section 12 (election of head of a local-level government) of the Local-level Governments Administration Act 1997 now states:

(1)	The election of the head of a Local-level Government—

(a)	in respect of which a determination has been made under Section 234(2) of the Organic Law on National and Local-level Government Elections—shall be in accordance with that Organic Law; and

(b)	in respect of which no such determination has been made—shall, subject to this section, be in accordance with the Standing Orders of the Local-level Government from amongst the elected members of the Local-level Government.

(2)	A member appointed under Section 29(1)(c) or (d) of the Organic Law is not eligible to be elected as the head of the Local-level Government.

(3)	The head of a Local-level Government 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 Local-level Government, by a 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 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; 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 Local-level Governments. [Emphasis added.]

(5)	The procedures for a motion of no-confidence referred to in Subsection (3)(c) shall be as set out in the Standing Orders of the Local-level Government.

25. The Standing Orders for the Wewak LLG Council were in the standard form, with the following provisions regarding motions of no confidence.

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.

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 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 commence on the day after the day the motion is served on the chief executive officer under Subsection (1).

WILL THE COURT MAKE THE ORDERS REQUESTED BY THE PLAINTIFF?

26. The short answer to this question is no, because of Section 12(4)(b)(ii) of the Local-level Governments Administration Act, which provides that a motion of no confidence cannot be moved 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.

27. The date fixed for the return of the writs of the previous general election was 30 July 2002. The fifth anniversary of that date is 30 July 2007. The period six months before then, begins on 30 January 2007. I am handing down this judgment in February 2007. It is too late for a motion of no confidence to be moved. 

28. Had it not been for Section 12(4)(b)(ii), I would have made the order sought by the plaintiff. I consider that the CEO of the Wewak LLG failed in his duty to facilitate the moving of a no-confidence motion. I consider that the second defendant also acted improperly by taking the approach outlined in his circular. The Principal Legal Officer, Mr Yamboli, also did not facilitate the moving of the motion but having considered his legal opinion he was giving options to the plaintiff on what should be done. 

29. The plaintiff should have his costs as he has been forced by the improper conduct of the defendants to being this matter to court.

ORDER

1	The court declines to make the orders sought in the originating summons and notice of motion.

2	The defendants shall pay all of the plaintiffs' costs of these proceedings on a party-party basis, to be taxed if not agreed.

Judgement accordingly.
____________________________________________________________
Narokobi Lawyers: Lawyers for the Plaintiff
Provincial Legal Office: Lawyer for Defendants