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Bafinu v Momondi [2024] PGNC 27; N10681 (8 March 2024)

N10681


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS NO. 319 OF 2023


BETWEEN:
HON.MARTIN TIM BAFINU
-Plaintiff-


AND
HON. LAWRENCE MOMONDI
-First Defendant-


AND
BUDS BOTIKE
-Second Defendant-


AND
NAWEB DISTRICT DEVELOPMENT AUTHORITY
-Third Defendant-


AND
MOROBE PROVINCIAL GOVERNMENT
-Fourth Defendant-


Lae: Dowa J
2024: 9th & 23rd February and 8th March


PRACTICE AND PROCEDURE – Originating Summons-Plaintiff seeking declaratory orders for the nullification of the results of a motion of no confidence against him as the head of a local level government under the Local Level Government Administration Act and the Standing Orders-– consideration of issues- whether the LLG CEO had authority to call and preside over meeting-whether sufficient notice for meeting was served on members-whether required majority votes was scored for toppling the head of the LLG-having failed to muster the required two thirds absolute majority the election was declared a nullity-the relief sought was granted.


Case Cited:
Joshua Hagai v Arom Meya & others [1988-1989] PNGLR 188
Joel v Tangapi (2001) N2135
.


Counsel:
B. Tomake, for the Plaintiff
E. Mambei, for the Defendants


DECISION


8th March 2024


1. DOWA J. This is a decision on the substantive proceedings between the parties.


2. The Plaintiff claims the following reliefs in the Originating Summons:


  1. A Declaration that the election of the First defendant as the president of Nabak Local Level Government [LLG] through the motion of no confidence against the plaintiff moved and passed on 6 November 2023 at Nawaeb Lutheran High School is unlawful and null and void as the mandatory procedures and requirements under Section 12(3)(c) and (4)(a)(b) of the Local Level Government Administration Act have not been complied with in that:
  2. A Declaration that all the decisions, transactions and dealings made by the first defendant following his election as president of Nabak LLG are all null and void and of no effect ab initio.
  3. A Declaration that the Plaintiff remains the President of Nabak LLG.
  4. An Order that all the defendants and their associates give effect to this Order of the Court forthwith by recognizing the plaintiff as the president for Nabak LLG.
  5. A permanent injunction be granted against the defendants and their associates from frustrating and threatening the plaintiff in any manner and form from taking up the office of the president of Nabak LLG and perform his functions required of the office of the president.
  6. An Order that the Plaintiff’s costs of the proceedings be paid by all the Defendants jointly and severally on a solicitor-client basis.

Background Facts


3. The Plaintiff was the President of the Nabak Local Level Government until 6th November 2023 when he was replaced by the first Defendant through a motion of no confidence brought against him. He was first elected as President of the Nabak LLG in August 2019.It is alleged that a meeting of the members of the Nabak LLG Council was called by the second Defendant. The Plaintiff protested that the members did not receive the required 14 days’ notice, as required by section 12 (4) (a) of the Local Level Government Administration Act, but the second Defendant insisted on the meeting going ahead. The meeting proceeded and the second Defendant chaired the meeting which the Plaintiff alleges is held contrary to section 32 of the Organic Law on Provincial and Local Level Government. The main agenda for the meeting was for the election of the Head of the Nabak LLG through a motion of no confidence brought against the Plaintiff. All 16 members of Nabak LLG were present and the motion of no confidence was conducted. The voting was conducted by secret ballots. The results were that the Plaintiff collected six (6) votes while the first Defendant collected 10 votes. The first Defendant was declared winner despite protests by the Plaintiff and five other members that the first Defendant did not secure the two thirds absolute majority as required by section 12 (3) of the Local Level Government Administration Act. The Plaintiff disputes the election of the first Defendant and instituted the current proceedings challenging the results of the motion of no confidence brought against him.


Reasons for challenging the Results of Motion of No Confidence


4. The main reasons advanced by the Plaintiff for challenging the results of the motion of no confidence as set out in his submissions are that the motion of no confidence passed against him is illegal and unlawful for failing to comply with the procedural as well as substantive requirements under section 12 (3) (c) and 4 (a) and (b) of the Local Level Administration Act in that:


  1. The meeting of 6th November 2023 was convened and conducted by the Second Defendant who did not have the authority and the power to convene and conduct meetings for members of LLGs; and
  2. The meeting of 6th November 2023 was convened and conducted by the Second Defendant who did not have the authority and the power to convene and conduct meetings for the motion of no confidence against the Plaintiff as the president of Nabak LLG to be moved, and
  1. The meeting of 6th November 2023 was conducted without giving proper and sufficient notice of 14 days to the members of Nabak LLG for the motion of no confidence against the Plaintiff as the President of Nabak LLG to be moved; and
  1. The motion of no confidence against the Plaintiff as the president of Nabak LLG to be moved and passed by less than two thirds absolute majority of the members of Nabak LLG; and
  2. The motion of no confidence against the Plaintiff as president of Nabak LLG was moved and passed within the grace period which prohibits such a motion to be brought against the Plaintiff.

Hearing


5. The matter was fixed for directions hearing on 2nd of February 2024. On 2nd February 2024, the matter was fixed for substantive hearing on 9th February 2024 by agreement of parties. Neither the Defendants nor their counsel appeared on 9th February 2024. Being satisfied that the lawyers having carriage of matter on behalf of the Defendants were aware of the date of hearing but chose not to appear, the Court proceeded to hear the matter exparte.


6. The matter was then recalled on 23rd February 2023 for counsel to make further submissions on points of law on the numbers required for the dismissal of head of the LLG through a motion of no confidence. Both counsel appeared and made brief submissions. The matter was then reserved for decision.

Issues


7. The main issues for consideration are:


  1. Whether the Second Defendant had the power and authority to call and convene a meeting of members of Nabak LLG for the purpose of conducting a motion of no confidence against the Plaintiff as Head of Nabak LLG.
  2. Whether the meeting of 6th November 2023 was conducted without giving proper and sufficient notice to the members of Nabak LLG for the motion of no confidence against the Plaintiff as the President of Nabak LLG to be moved.
  1. Whether the motion of no confidence against the Plaintiff as the President of Nabak LLG was moved and passed by less than the required majority of the members of Nabak LLG.
  1. Whether the motion of no confidence against the Plaintiff as the President of Nabak LLG was moved and passed within the grace period of vote of no confidence against the Plaintiff as the President of Nabak LLG.

The Law


8. The relevant law applicable in determining the issues before the Court is sections 12 (3), (4) and (5) and 23 of the Local Level Government Administration Act and Part VI of the Standing Orders (Rules of Debate for Local Level Governments). Subsections (3), (4) and (5) of the Act read:


“12. ELECTION OF HEAD OF A LOCAL-LEVEL GOVERNMENT.

(1) ....

(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 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.

.....”

9. Section 23 of the Act reads:
“23. MEETINGS OF A LOCAL-LEVEL GOVERNMENT.

(1) A Local-level Government shall meet within 15 days of the day fixed for the return of the writs following a general election to Local-level Governments.

(2) A Local-level Government shall meet at least once in each period of three months.

(3) Unless otherwise provided, a meeting of a Local-level Government shall be called by the head of that Local-level Government.

(4) A Local-level Government shall have additional meetings–

(a) where not less than one third of the total number of members of the Local-level Government make written request to the head of the Local-level Government; or

(b) where the head of the Local-level Government gives notification; or

(c) in accordance with the provisions of the Standing Orders.”

10. Part VI of the Standing Orders is set out below:

“PART VI-MOTIONS OF NO CONFIDENCE

38. MOTIONS OF NO CONFIDENCE

A motion of no confidence may be moved without notice and 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 Councilor.

39. NOTICE OF MOTION

(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 Councilor 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 commences on the day after the day the motion is served on the chief executive officer under subsection (1)

40. AMENDMENT OF MOTION

(1) A motion of no confidence may not be amended except by substituting the name of the Councilor nominated as the next head of the Local Level Government and with the name of another Councilor.

(2) An amendment of motion of no confidence shall be seconded and pass by a two-thirds absolute majority including the appointed Councilors.

41. MOTION TO BE GIVEN PRIORITY

A motion of no confidence shall be the first matter for consideration after any formal business.

42. VOTING

Voting in relation to a vote of no confidence shall be by secret ballot.”


The evidence before the Court


11. The Plaintiff relies on the following Affidavits:


  1. Affidavit of Martin Tim Bafinu filed 16th November 2023
  2. Affidavit of Adolf Buni filed 16th November 2023
  1. Affidavit of Serah Nomayong filed 16th November 2023
  1. Affidavit of David Leo filed 16th November 2023
  2. Affidavit of Malcom Livi filed 16th November 2023
  3. Affidavit of Ronnie Giling filed 16th November 2023

12. The defendants oppose the application and rely on the Affidavit of the first Defendant, Lawrence Momondi, sworn and filed 22nd November 2023. The second Defendant filed a Defence which forms part of the Defendants case. The fourth Defendant took no further part in the proceedings apart from filing their Notice of Appearance.


Considerations of the Issues


a. Whether the Second Defendant had the power and authority to call and convene a meeting of members of Nabak LLG for the purpose of conducting a Motion of No Confidence in the Plaintiff as Head of Nabak LLG.


13. Mr. Tomake, counsel for the Plaintiff, submits that the second defendant, the Chief Executive Officer of Nabak LLG, who called the meeting of the members does not have the power and authority to call and convene a meeting of the members of Nabak LLG. He submits that only the Head of the LLG has the authority to call meetings of the members of the LLG as empowered by section 32 of the Organic Law on Provincial and Local Level Government, section 23 of the Local Level Government Administrative Act and section 13 of the Standing Orders (Rules of Debate for the Local Level Governments).The Plaintiff relies on the authority in the case Zaliong v Deyamos Local Level Government Council (2004) N3121.


14. The Court notes Section 32 (1) of the Organic Law on Provincial and Local Level Government, section 23 of the Local Level Government Administrative Act and section 13 of the Standing Orders do provide that the head of the LLG shall preside over all meetings when he is present and in his absence, the deputy President. The only instances the Chief Executive Officer presides over a meeting of the LLG is for the election of the head of the LLG after a General Election under section 10 of the Standing Orders and secondly when both the President and his deputy are absent pursuant to section 14 of the Standing Orders.


15. It is interesting to note that Section 32 (2) of the Organic Law states that privileges and immunities of members of LLG including number of meetings shall be determined by an Act of Parliament. One of such privileges provided for by the Local Level Government Administration Act is a motion of no confidence in the head of the LLG. While sections 10 and 14 of the Standing Orders allow, as an exception, for the Chief Executive Officer to preside over a meeting of the LLG, there is no similar provision in the Organic Law, or the Act, or the Standing Orders allowing the Chief Executive Officer to preside over a meeting for the motion of no confidence in the Head of the LLG. Conversely, there is no express provision excluding or prohibiting the Chief Executive Officer from conducting a motion of no confidence.


16. After considering the relevant provisions of the legislation referred to above, I am of the view that the Chief Executive Officer of a LLG has the authority to call and preside over a meeting of a LLG for the purpose of the motion of no confidence in the head of the LLG. This would be the third instance when the Chief Executive Officer is authorized to preside over an LLG meeting. This is the explanation. Part VI of the Standing Orders, especially sections 39 and 40, makes it plain that the Chief Executive Officer is very much involved from the time he is served the motion of no confidence to the time of voting. The meeting must be treated like the calling of the inaugural meeting of the council members after the general election under Part II of the Standing Orders. It is a privilege accorded to the members of an LLG provided for by an Act of Parliament as allowed by the Organic Law to ensure that a non-performing head of a LLG is removed from office during the term of his office. In such case, it is a preposterous argument that the head of LLG should preside over a meeting of the LLG where a motion of no confidence is brought against him.


17. Further to this, the evidence shows the Sponsors of the motion took the matter to the Lae District Court. The Court then ordered the Chief Executive Officer to conduct the meeting on a specific date, 6th November 2023. This affirms an awareness and expectation amongst the members of the LLG of the role the Chief Executive Officer plays in the subject matter. It is not as though no one knew who was responsible for conducting the motion of no confidence. It is a foregone conclusion that the responsibility for convening the meeting for the motion of no confidence lies with the Chief Executive Officer. For these reasons, I find the second Defendant, the Chief Executive Officer of Nabak LLG, had authority to call and conduct the meeting of the members of Nabak LLG for the motion of no confidence.


  1. Whether the meeting of 6th November 2023 was conducted without giving proper and sufficient notice of 14 days to the members of Nabak LLG for the Motion of no Confidence against the Plaintiff as the President of Nabak LLG to be moved.

18. The Plaintiff alleges that the Defendants failed to follow the mandatory procedures under sections 12 (3) and (4) of the Local Level Government Administration Act by failing to give 14 days prior notice before conducting a motion of no confidence against the head of the Nabak LLG and therefore the election of the first Defendant is illegal. The Plaintiff claims 14 days’ notice was not served on him and other members. They were only advised by telephone on the morning of the meeting.


19. In response, the Defendants submit that the required notice was given on 12th October 2023, and the meeting being held 6th November 2023, which was more than the required period of notice.


20. Section 12 (4) of the Act and section 39 of the Standing Orders make it plain that a motion of no confidence be conducted with no less than 14 days’ notice. The 14 days’ notice commences on the day after the day the motion is served on the Chief Executive Officer. The Motion shall be physically served on the Chief Executive Officer. After receipt of the motion, the Chief Executive Officer shall make copies and ensure that each councilor is given a copy of the motion 10 clear days before the motion is considered by the LLG. The 14 days’ notice is a mandatory statutory requirement, the failure of which can render an election nullified as exemplified in the cases Joshua Hagai v Arom Meya & others (1988-1989) PNGLR 188, and Joel v Tangapi (2001) N2135.


21. The evidence shows the motion of no confidence was served on the Chief Executive Officer on 12th October 2023. The motion was signed by eleven (11) ward councilors of Nabak LLG whom I will refer to as the Sponsors. According to the Defence filed by the second Defendant, the Notice was dispatched to the members/councilors the next day or immediately thereafter. The meeting was set to be held on 26th October 2023, but was deferred by the Chief Executive Officer. The second Defendant pleaded in his Defence that the meeting did not proceed on 26th October 2023 because the Plaintiff’s lawyers raised objections resulting in the deferral. The Sponsors/Councilors, frustrated by the deferral, wrote to the Ombudsman Commission to intervene. After receiving no favorable response, the Sponsors/Councilors instituted Court proceedings in CV No. 281 of 2023 against the Chief Executive Officer and the senior officers of the Morobe Provincial Government Administration.


22. On 2nd November 2023, the Lae District Court made an order directing the Chief Executive Officer of Nabak LLG and other senior officers named in the proceedings to conduct the motion of no confidence. The Court directed the motion of no confidence be conducted on Monday 6th November 2023. According to the Defence filed by the second Defendant, the Plaintiff’s lawyers appeared in Court and were aware of the orders of the Court and the date for the motion. It appears the Chief Executive Officer complied with the orders and facilitated the meeting as ordered by the Court. Whist it is not clear whether all the Councilors were each served a copy of the motion of no confidence, what is evident though, is that all councilors were aware of the agenda and the date for meeting. This is because all the ward councilors including the two appointed members of the Nabak LLG attended and took part in the meeting and voted in the motion of no confidence on the day fixed by the Court. The motion of no confidence was conducted on 6th November 2023, more than 14 days after notice of the motion was served on the Chief Executive Officer. Even if there is a lack of notice, such noncompliance is inconsequential as all members of Nabak LLG attended and participated in the motion of no confidence.


c. Whether the motion of no confidence against the Plaintiff as the President of Nabak LLG was moved and passed by the less than the required absolute majority of the members of Nabak LLG.


23. The Plaintiff submits that the first defendant did not score the required two-thirds absolute majority to be declared President as required by section 12 (3) (c) of the Local Level Government Administration Act. The Plaintiff submits that out of the 16 members who voted, he scored 6 whilst the first Defendant scored 10, falling short of the required two-thirds absolute majority.


24. In response, the Defendants submit that the first Defendant who collected 10 votes ahead of the Plaintiff who scored 6 was correctly declared winner pursuant to Section 10 of the Standing Orders which provides that the candidate with the greater number of votes shall be declared elected as head of the LLG.


25. I have considered the evidence and the submissions of counsel carefully to arrive at a just conclusion as it concerns the rights of the parties in this dispute.


26. Section 12 (3)(c) of the Local Level Government Administration Act states that the head of a Local-level Government elected by the members of an LLG after the general election in accordance with the Standing Orders vacates office where he is dismissed from office if the Local-level Government, by two thirds absolute majority (including the appointed members), passes a motion of no confidence in him. Section 12 (4) of the Act provides that the procedures for a motion of no confidence shall be set out in the Standing Orders. Part VI of the Standing Orders provide the steps to be taken for conducting motions of no confidence. The Standing Orders, however, does not make provision for the required majority votes to dethrone, so to speak, a head of the LLG. It is provided for by section 12 (3) (c) of the Local Level Government Administration Act.


27. The Court notes the contention by the Defendants that the candidate with the greatest number of votes shall be declared elected as head of the LLG under section 10 of the Standing Orders. However, in my view, section 10 of the Standing Orders refers to the conduct of the election of the head of the LLG for the first time or at an inaugural meeting of elected councilors after a general election as prescribed by Part II of the Standing Orders. It does not refer to an election of the head of the LLG in a motion of no confidence as provided for under Part VI of the Standing Orders and section 12 (3) and (4) of the LLG Administration Act. Even where there appears to be a conflict of the applicable law as between the LLG Administration Act and the Standing Orders in relation to the required number of votes to oust a sitting head of a LLG, the LLG Administration Act will prevail and take precedence in the hierarchy of laws under section 9 of the Constitution.


28. It is clear from the study of the relevant provisions of the LLG Administration Act and the Standing Orders that the number of votes required to topple the head of a LLG in a motion of no confidence is two thirds absolute majority.


29. Turning to the present case, the facts are not disputed. The Nabak LLG has 16 members including the appointed members. They all took part in the voting. The results were that the first Defendant scored 10 votes while the Plaintiff collected 6 votes. The first Defendant was declared winner by the second Defendant. The immediate question is, did the members of Nabak LLG pass a resolution by two thirds absolute majority for the Plaintiff to vacate his position as the head of the LLG. What is two thirds of 16. Arithmatecally, two thirds of 16 is 10.66. This means the number required must be more than 10., bringing to the next or nearest the number required is 11. Thus, having scored less than 11 votes, the first Defendant did not reach the two thirds absolute majority. It follows that the second Defendant made a blunder in declaring the first Defendant as winner resulting in the Plaintiff vacating his position as head of the Nabak LLG contrary to the express and mandatory requirement of section 12 (3) (c) of the Local Level Government Administration Act.


  1. Whether the motion of no confidence against the Plaintiff as the President of Nabak LLG was moved and passed within the grace period of motion of no confidence against the Plaintiff as the President of Nabak LLG.

30. The Plaintiff argues that the motion of no confidence against the Plaintiff as the President of Nabak LLG was moved and passed within the grace period which is prohibited by section 12 (4) (c) of the LLG Administration Act.

31. Section 12 (4) (c) provides that a motion of no confidence 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.

32. The Plaintiff deposes he was elected as Ward Councillor in July 2019. He deposes further that he was elected President for Nabak LLG in August 2023 which I consider is a mistake. No corrective Affidavit was filed to correct a material error. Be that as it may, it remains a sworn fact. In these circumstances it is difficult to calculate the dates and ascertain the grace period for the purposes of section 12 (4) (c) of the LLG Administration Act. If the Court were to accept the date of election of the Plaintiff as head of Nabak LLG as at August 2019, that would render the motion of no confidence competent as it was passed outside of the grace period of six months ( that is 8 months between 6th November 2023 and 26th July 2024) before the fifth anniversary of the date fixed for the return of the writs of the previous general elections of the members of the LLGs. In the circumstances, it is not established to the satisfaction of the Court that the motion was moved within the grace period.


Conclusion


33. In conclusion, the Court finds that the Plaintiff established one out of the five grounds relied on by the Plaintiff to nullify the election of the first Defendant as head of the Nabak LLG. The Plaintiff has proven ground 1(d), that is, the motion of no confidence against the Plaintiff as the head of Nabak LLG was moved and passed by less than two thirds absolute majority of the members of Nabak LLG contrary to section 12 (3)(c) of the Local Level Government Administration Act. It is a material error committed by the second Defendant and a serious breach of the Local Level Government Administration Act which provides immunity for stability and offers privileges for removal of bad governance. The Court notes the underlying reasons for the motion, but the law cannot be flouted. Accordingly, the Court is inclined to grant the orders sought by the Plaintiff.


What orders should the Court make.


34. For the reasons given, the Court will grant reliefs 1(d), 3, and 4 of the Originating Summons. The Court is not inclined to grant reliefs 2 and 5. Relief 2 seeks a Declaration that all the decisions, transactions and dealings made by the first defendant following his election as president of Nabak LLG are all null and void and of no effect ab initio. In my view, the decisions made by the first defendant when he was elected were legitimate decisions as he had the power to make those decision and therefore reject the Plaintiff’s submissions. As for relief 5, there is no evidence to grant the orders sought.


Costs


35. The Plaintiff claims costs of the proceedings. It is a discretionary matter. The Plaintiff has succeeded in his claim and therefore he is entitled to the costs which shall be paid by the Defendants on a party/party basis.


ORDERS


36. The Court orders:

  1. By way of a Declaration that the election of the First defendant as the President of Nabak Local Level Government [LLG] through the motion of no confidence against the Plaintiff on 6 November 2023 at Nawaeb Lutheran High School is unlawful and null and void in that the motion was moved and passed by less than two thirds absolute majority of the members of Nabak LLG contrary to section 12 (3)(c) of the Local Level Government Administration Act.
  2. By way of a Declaration that the Plaintiff remains the President of Nabak LLG.
  3. That all the Defendants and their associates give effect to this Orders by recognizing the Plaintiff as the President for Nabak LLG forthwith.
  4. That the Plaintiff’s costs of the proceedings be paid by all the Defendants jointly and severally on a party/party basis to be taxed if not agreed.
  5. Time be abridged.

_______________________________________________________________

Jaku Lawyers: Lawyer for the Plaintiff

Solwai Lawyers: Lawyer for the First Defendant

Buds Botike: Second Defendant in person for himself and the Third Defendant

E Philemon: Lawyer for the Fourth Defendant

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