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Kawage v Mondu [1999] PNGLR 543 (9 August 1999)

[1999] PNGLR 543

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

BOBBY KAWAGE

V

FRANK MONDU, DEPARTMENT OF EASTERN HIGHLANDS PROVINCIAL GOVERNMENT AND DAULO LOCAL LEVEL GOVERNMENT

GOROKA: KIRRIWOM J
9 July; 9 August 1999

Facts

The plaintiff seeks a declaration that the election and declaration of Councillor Frank Mondu, the first defendant herein, as the President of Daulo Local Level Government is null and void and of no legal effect in that his election is not in compliance with s 12 of the Local Level Government Administration Act which requires a mandatory two-thirds majority vote to remove a sitting president or the incumbent of that office in a vote of no confidence.

The facts in this case are that the plaintiff is a councillor of Ward II, Daulo Local Government Council. In 1997 he was elected the president of the Daulo Local Level Council. On 13th April 1999 a notice of motion of no confidence was given by several councillors aligned with the first defendant of their lack of confidence in the plaintiff and named the first defendant as the alternate president. There is no dispute about the correctness or otherwise of the notice of motion. The motion was moved on 19th May 1999 in the meeting attended by all the 25 duly elected members of the Council and present also were the Local Level Government advisors including the provincial legal officer. After all the preliminary matters were completed regarding adoption of the standing orders and an explanation on the legal requirement of two-thirds absolute majority by the provincial legal officer, the motion was read and vote by secret ballot was taken. The result was that the first defendant received 16 votes while the plaintiff got 9 votes in his favour.

The question is: does this conform to the requirement of s 12(3)(c) of the Local Level Government Administration Act of 1997?

Counsel for the plaintiff submits to the court to read and interpret absolute majority as is defined in Sch. 1.2 of the Constitution.

Held

1. Schedule 1.2 of the Constitution equally applies to the composition of members of Provincial and Local Level Governments: Hagai Joshua and Gimson Saonu v Aaron Muja, Jerry Nalau and Mang Kembu [1988-89] PNGLR 188 adopted and applied.
   
2. Sixteen (16) votes taken in favour of the first defendant represent the 2/3 absolute majority vote of 25 members. This figure clearly represents an absolute 2/3 majority; it is not a simple majority.
   
3. The relief sought by the plaintiff is therefore denied.
   

Papua New Guinea cases cited

Hagai Joshua & Gimson Sasonu v Aaron Muja, Jerry Nalau & Mang Kembu [1988-89] PNGLR 188.

Counsel

D Umba, for the plaintiff.
J Bray, for the defendants.

9 August 1999

KIRRIWOM J. In this case the plaintiff seeks a declaration that the election and declaration of Councillor Frank Mondu, the first defendant herein, as the President of Daulo Local Level Government is null and void and of no legal effect in that his election is not in compliance with s 12 of the Local Level Government Administration Act which requires a mandatory two-thirds majority vote to remove a sitting president or the incumbent of that office in a vote of no confidence.

The facts are not in dispute. The only issue is on the interpretation of the two-thirds absolute majority requirement that this Court is asked to determine and rule on it.

The plaintiff is a councillor of Ward II, Daulo Local Government Council. In 1997 he was elected the president of the Daulo Local Level Council. On 13 April 1999, a notice of motion of no confidence was given by several councillors aligned with the first defendant of their lack of confidence in the plaintiff and named the first defendant as the alternate president. There is no dispute about the correctness or otherwise of the notice of motion. The motion was moved on 19 May 1999 in the meeting attended by all the 25 duly elected members of the council and present also were the Local Level Government advisors including the provincial legal officer. After all the preliminary matters were completed regarding adoption of the standing orders and an explanation on the legal requirement of two-thirds absolute majority by the provincial legal officer, the motion was read and vote by secret ballot was taken. The result was that the first defendant received 16 votes while the plaintiff got 9 votes in his favour. There is no question about the majority choice expressed in the secret ballot. Sixteen votes is obviously over half the number of members of the Local Government Council of Daulo which is 13. Two-thirds absolute majority would require 16.666 (or 17) Councillors voting in favour of the motion. The question is does this confirm with the requirement of s 12(3)(c) of the Local Level Government Administration Act of 1997? According to the evidence before me the Provincial Legal Officer did not think so and advised the Councillors accordingly, that is, the motion had failed. However this advice did not go down well with the 16 Councillors and their supporters who voted for the motion and consequently mob-rule over-took the events which saw the plaintiff relinquishing the chair to the first defendant to avoid any major crises.

Counsel for the plaintiff submits that I must read and interpret absolute majority as is defined in Sch. 1.2 of the Constitution as meaning:

"(a) if qualified by reference to a certain fraction or percentage, affirmative votes equal to not less than that fraction or percentage of the total number of seats in the Parliament."

Although this provision in the Constitution applied to the composition of Members of the National Parliament, this Court adopted and applied this definition in the Morobe Tutumang case between Hagai Joshua and Gimson Saonu v Aaron Muja, Jerry Nalau and Mang Kembu [1988-89] PNGLR 188. The judge who presided in that matter was not only faced with one issue on the definition of ‘absolute majority’, there were multiple issues including suspension of Members from Tutumang duties at the crucial time of the no confidence motion being voted by the 22 Members of the Opposition who were present in force, the legality of their suspensions, the validity of the vote being taken outside the return date of the motion. Amidst all these conflicting issues that the Court was asked to make declarations, the Court found that election of Jerry Nalau as Premier of the Morobe Provincial Government was null and void as the vote on the no confidence motion was taken in the absence of 13 members who were under suspension including the incumbent Premier Hagai Joshua which suspension were invalid and that applying the definition of absolute majority in Schedule 2 of the Constitution, 3/3 absolute majority in the case of Morobe Tutumang meant 24 out of 35 members must support the vote of no confidence. Therefore 22 members present and who unanimously voted in favour of the motion were clearly in breach of the law.

There is a clear distinction between this Morobe Tutumang case that I have discussed with this case before me. The facts are plain and straightforward. The only issue whether 16 Councillors who voted for the motion is sufficient to constitute the 2/3 absolute majority stipulated in s 12(3) of the Local Level Government Administration Act 1997.

I am of the opinion that if law is to be understood and appreciated by all manner of men with whatever background, it must be its simplicity and the ability to be read and understood. Law must not be just a matter for lawyers to read and explain. In its application the law must conform to common sense and logic and not herness or embrace absurdities that obscure its true intentions and purpose. This is specifically made clear in Sch. 1.5 of the Constitution where it says: (2) ‘All provisions of, and all words, expressions and propositions in, a constitutional law, shall be given their fair and liberal meaning.’

I am here faced with a unique situation where the total number of Councillors who make up the Daulo Local Government Council is 25. If the total were 24, 16 votes in favour of the motion is clearly the 2/3 absolute majority required and there would be no need for this issue coming before the Court. Every case is different. I distinguish this case with that of Hagai Joshua and Gimson Saonu v Aaron Muja, Jerry Nalau and Mang Kembu (supra) and in the light of its own peculiar facts I am satisfied that 16 votes taken in favour of the first defendant represent the 2/3 absolute majority vote of 25 members. This figure clearly represents an absolute 2/3 majority; it is not a simple majority.

The relief sought by the plaintiff is therefore denied and I declare that the first defendant is the duly elected President of the Daulo Local Government Council.

Costs follow the event.

Lawyer for the plaintiff: Acanufa & Associates.
Lawyer for the defendants: Pryke & Co.