|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO 472 OF 2008
BETWEEN
JOSEPH KUNUKUNU
Plaintiff
AND
WAMBI NONDI
First Defendant
AND
STONEY KUMALO-
DEPUTY PROVINCIAL ADMINISTRATOR
Second Defendant
AND
PETER PEREKOIYA, THE ASSISTANT RETURNING OFFICER,
SOUTH WIRU LOCAL-LEVEL GOVERNMENT
Third Defendant
AND
OS NO 361 OF 2009
BETWEEN
WAMBI NONDI
Plaintiff
AND
JOSEPH KUNUKUNU
First Defendant
AND
JACK TULIA
Second Defendant
AND
SOUTH WIRU LOCAL-LEVEL GOVERNMENT
Third Defendant
Mount Hagen: Makail, J
2010: 19th May,
04th, 24th June
& 17th December
2012: 12th January
ELECTIONS - Local-level Government elections - Election of president - Validity of - Conducting of meeting without standing orders - Mandatory - Failure of - Conducting of meeting in contravention of standing orders - Effect of - Election null and void - Declaratory orders to validate election refused - Proceedings dismissed - Organic Law on Provincial Governments and Local-level Governments - Section 29 - Local-level Governments Administration Act, 1997 - Sections 12(3)(c) & 18.
Facts
The plaintiff Mr Joseph Kunukunu alleged following the Local-level Government elections in 2008, he was elected as president of South Wiru Local-level Government in Pangia of Southern Highlands Province. He was elected unopposed in a meeting chaired by the acting District Administrator of Ialibu/Pangia Mr Jack Tulia without using Standing Orders. The first defendant Mr Wambi Nondi also alleged he was elected as president of the same Local-level Government in a meeting chaired by the Deputy Provincial Administrator Mr Stoney Kumalo under delegated authority from the District Administrator of Ialibu/Paniga Mr Pius Puk and that there was no meeting where Mr Kunukunu was elected as president. Each filed separate court proceedings seeking, among other orders, declarations to validate their elections as president. Mr Nondi sought an additional declaratory order to invalidate the election of Mr Kunukunu as president. The proceedings were consolidated and heard together.
Held:
1. On the evidence, there was a meeting of South Wiru Local-level Government where Mr Kunukunu was elected as president of South Wiru Local-level Government.
2. When section 12(1)(b) of the Local-level Governments Administration Act, 1997 is read together with section 18 of the same Act, it makes it mandatory that meetings of Local-level Governments are to be conducted in accordance with Standing Orders.
3. Where a Local-level Government does not have Standing Orders, it may adopt a model Standing Order drawn up and published in the Government Gazette by the Minister for Provincial and Local-level Governments Affairs pursuant to section 18(3) of the Local-level Governments Administration Act, 1997.
4. On the evidence, there was a model Standing Order adopted by South Wiru Local-level Government and as the meeting which resulted in the election of the plaintiff Mr Kunukunu as president was held without the model Standing Order, there was a serious flaw in the election of Mr Kunukunu as president of South Wiru Local-level Government.
5. The conduct of both meetings were in contravention of the Standing Orders of South Wiru Local-level Government as there were serious flaws and discrepancies in the authority of the District Administrator of Ialibu/Pangia. Thus, both Mr Kunukunu and Mr Nondi had failed to establish on the balance of probabilities that the District Administrator was duly appointed to conduct the meeting which resulted in each of them being elected president. Accordingly, there was no proper basis for the Court to declare either election valid.
6. As Mr Nondi had sought an additional declaratory order to invalidate the election of Mr Kunukunu as president, the election of Mr Kunukunu as president of South Wiru Local-level Government was declared illegal, null and void.
7. A re-election of a president for South Wiru Local-level Government on a date and time to be fixed and in accordance with the Local-level Government Administration Act, 1997 and the Standing Orders was ordered.
8. Each party was ordered to bear their own costs of both proceedings.
No cases cited:
Counsel:
Mr M Tamutai, for Plaintiff in OS No 472 of 2008
Mr D Gonol, for First Defendant in OS No 472 of 2008
No appearance, for Second & Third Defendants in OS No 472 of 2008
Mr D Gonol, for Plaintiff in OS No 361 of 2009
Mr M Tamutai, for First Defendant in OS No 361 of 2009
No appearance, for Second & Third Defendants in OS No 361 of 2009
JUDGMENT
12th January, 2012
1. MAKAIL, J: These proceedings OS No 472 of 2008 and OS No 361 of 2009 were consolidated and heard together. They concern the election of president of South Wiru Local-Level Government ("SWLLG") in Pangia of Southern Highlands Province. Mr Joseph Kunukunu claimed he was elected as president at Pangia station on 05th August 2008 and Mr Wambi Nondi also claimed he was elected as president at Agiru centre in Mendi on 18th August 2008.
Background
2. In proceeding OS No 472 of 2008, Mr Kunukunu as the plaintiff, sought the following relief:
"1. A Declaration that Joseph Kunukunu is the duly elected Council President for South Wiru Local Level Government Council, Pangia in the Southern Highlands Province.
2. An Order that the Defendants or their agents and servants BE RESTRAINED from interfering with Joseph Kunukunu from executing or performing his duties as a duly elected President of South Wiru Local Level Government.
3. An Order that the First Defendant BE RESTRAINED from holding himself out as President of South Wiru Local Level Government.
4. The Costs be in the cause.
5. Any other Orders this Honourable Court deems fit."
3. In proceeding OS No 361 of 2009, Mr Nondi as the plaintiff, sought the following relief:
"1. An Order by way of Declaration that Wambi Nondi is the duly elected President for South Wiru Local Level Government Council, Pangia, Southern Highlands Province as per elected on the 18th of August 2008, at Agiru Centre, Mendi .
2. An Order by way of Declaration that the First Defendant, Joseph Kunukunu's purported election, as President of South Wiru Local Level Government Council in Pangia Southern Highlands Province on the 5th of August 2008 is null and void on the grounds that: -
a) There was no such inaugural meeting conducted in Pangia to elect a President on the 5th August 2008.
b) If there was such an inaugural meeting on the 5th August 2008, that meeting did not properly proceed as:
i) The Chief Executive Officer being the District Administrator of Ialibu-Pangia, Pius Puk did not chair the meeting.
ii) The purported Acting Chairman, Jack Tulia was not the District Administrator, and not the Chief Executive Officer to chair the inaugural meeting.
iii) The District Administrator, Pius Puk did not delegate his authority to Jack Tulia to conduct the inaugural meeting.
iv) Mr. Jack Tulia did not occupy the position of District Administrator. Rather, he was the Deputy District Administrator and had no power to conduct such a meeting.
v) Even if Jack Tulia had powers (which is denied) he was suspended of his position for insubordination on the 4th August 2008. He therefore, did not have powers or at all to conduct the inaugural meeting as he did.
vi) The inaugural meeting initially scheduled for the 5th August 2008 at Pangia Station was cancelled and postponed to the next day at Ialibu Station.
vii) The Commissioner for Oaths, Kapa Dilini swearing in the alleged elected councilors and subsequently the president elect did not have the powers under the Oaths, Affirmations Act to swear in councilors as he did.
viii) The meeting if convened on the 5th August 2008, as alleged, Seven (7) persons who were self-appointed and not duly elected councilors, in the Wards either declared failed or substituted with the elected councilor were part of the election of President is any.
ix) The Writ used in the alleged inaugural meeting as returned was not the one accepted by the Electoral Commissioner and was therefore an invalid Writ. The Writ accepted by the Electoral Commissioner was the one containing 30 names of councilors returned.
3. In the alternative, a re-election of the President of the South Wiru Local Level Government Council be ordered.
4. The Plaintiff's costs of this proceeding be settled by the Defendants.
5. Any other or further orders this Honourable Court deems fit."
4. On 19th August 2008, the Court granted interim orders in favour of Mr Kunukunu, in the proceeding OS No 472 of 2008, which among other orders, restrained Mr Nondi from holding himself out and exercising powers of president, and allowed Mr Kunukunu to exercise the powers of president without any interference pending the hearing and determination of the proceeding. Thus, since 19th August 2008, the South Wiru LLG had been under the leadership of Mr Kunukunu.
Parties' evidence
5. Mr Kunukunu relied on the following affidavits:
1. His affidavit sworn on 18th August 2008 and filed on 19th August 2008, (exhibit "P1");
2. His further affidavit sworn on 15th September 2008 and filed on 17th September 2008, (exhibit "P2");
3. Affidavit of Edwin Kumbe Yokola sworn and filed on 19th August 2008, (exhibit "P3");
4. Supplementary affidavit of Edwin Kumbe Yokola sworn and filed on 12th May 2010, (exhibit "P4"); and
5. Affidavit of Jack Tulia sworn and filed on 11th May 2010, (exhibit "P5").
6. Except for Mr Tulia, Mr Kunukunu and Mr Yokola also gave further oral evidence and were cross-examined by counsel for Mr Nondi.
7. As for Mr Nondi, he relied on the following affidavits:
1. His affidavit sworn on 29th April 2010 and filed on 05th May 2010, (exhibit "D1");
2. His further affidavit sworn on 12th March 2010 and filed on 06th April 2010, (exhibit "D2");
3. His further affidavit sworn on 04th September 2010 and filed on 05th September 2010, (exhibit "D3");
4. His final affidavit sworn on 06th July 2009 and filed on 10th July 2009, (exhibit "D4");
5. Affidavit of Peter Perekoiya sworn and filed on 15th October 2008, (exhibit "D5"); and
6. Affidavit in support of Peter Perekoiya sworn on 31st July 2009 and filed on 15th September 2009, (exhibit "D6").
8. Mr Nondi and Mr Perekoiya also gave further oral evidence and were cross-examined by counsel for Mr Kunukunu.
Consideration of Issues
9. In each proceeding, Mr Kunukunu and Mr Nondi sought declaratory orders to validate each other's election. Mr Nondi also sought an additional declaratory order to invalidate the election of Mr Kunukunu. Therefore, the onus of proof is upon each of them to establish that he has met all the requirements of the law relating to the election of president for the Court to declare him president. As for Mr Nondi, he must also establish that Mr Kunukunu failed to observe the same requirements.
10. In submissions, their respective counsel raised a number of issues but I consider there are only three main issues for determination. The first common issue is whether there was a meeting of SWLLG on 05th August 2008 whereby Mr Kunukunu was elected president. In his submissions, Mr Tamutai of counsel for Mr Kunukunu focused on the election of Mr Kunukunu of 05th August 2008 at Pangia station where he strongly submitted an inaugural meeting was held following the elections of councilors for the Pangia Local-level Government and it was there that Mr Kunukunu was elected unopposed as president. At that meeting, 18 councilors attended and all voted for Mr Kunukunu and the meeting was chaired by the Deputy District Administrator, Mr Jack Tulia who was then the acting District Administrator of Ialibu/Pangia District. Mr Tulia was acting District Administrator because the incumbent Mr Pius Puk was suspended from duties on disciplinary grounds.
11. He further submitted even if Mr Puk was District Administrator, he had by implication delegated his powers as District Administrator to Mr Tulia to conduct the meeting. Mr Gonol of counsel for Mr Nondi submitted otherwise. He relied on the evidence of Mr Nondi and his witness Mr Perekoiya and submitted there was no such inaugural meeting conducted in Pangia to elect a President on 5th August 2008.
12. The first issue of whether or not there was a meeting on 05th August 2008 at Pangia station whereby Mr Kunukunu was elected as president is a question of fact and must be decided on the evidence before the Court. Firstly, there is no dispute a notice had been sent out for the first inaugural meeting to be held at Pangia station on 05th August 2008. Mr Kunukunu and his witnesses said following the notice, a meeting was held on that date while Mr Nondi and his witnesses said there was no meeting. Mr Nondi said the meeting was cancelled and was postponed to the next day (06th August 2008) at Ialibu station.
13. Mr Nondi did not deny he was present at Pangia station on 05th August 2008. It is his further evidence he and other group of councilors who had been camping in Mt Hagen had travelled to Pangia on 05th August 2008 and witnessed a lot of confusion among the people who had gathered there for the meeting. He said Mr Tulia who hailed from a village near Pangia station mobilised his tribesmen and forcefully locked the gates of Pangia District office. They did that to force the authorities to reinstate Mr Tulia. But Mr Kunukunu gave evidence that the meeting was held outside the District office as the gate to the District office was locked. His evidence is verified by Mr Yokola who also gave further evidence that it was Mr Nondi and his supporters who barricaded the District office and made it impossible for them to convene the meeting.
14. On the evidence, I am satisfied on the balance of probabilities there was a meeting on 05th August 2008. It was held outside the District office as the access to the District office was hindered. Whether it was Mr Tulia and his tribesmen or whether it was Mr Nondi and his supporters who hindered access to the District office, in my opinion, is not significant. What is significant is that, the atmosphere at that time was volatile as there were two groups of councilors waiting to convene a meeting for their swearing in and most importantly, elect a new president. One group led by Mr Kunukunu and the other led by Mr Nondi. The meeting convened without Mr Nondi and his group of councilors. At that meeting, 18 councilors attended and it was chaired by Mr Tulia. Mr Kunukunu was elected unopposed as president.
15. But was the meeting of 05th August 2008 valid? This is the second common issue between the parties and, in my view, the essence of the dispute between the parties. Was the meeting lawfully convened and lawfully conducted? In his submissions, Mr Gonol submitted if there was an inaugural meeting on 05th August 2008, that meeting did not properly proceed and is invalid, thus invalidating the election of Mr Kunukunu as president, and the reasons he gave, are those as pleaded in the originating summons in OS No 361 of 2009 (supra). They are:
16. These grounds may be summarised into 4 main grounds. The first relates to the authority of Mr Tulia to conduct the meeting of 05th August 2008 and the second ground relates to the authority of the Commissioner for Oaths to administer oaths to the elected councilors at that meeting. Thirdly is the quorum of the meeting of 05th August 2008, and finally, the propriety of the writ that was used at the meeting of 05th August 2008.
17. As I understood Mr Tamutai's lengthy submissions correctly, he submitted the SWLLG did not have Standing Orders. As it did not have Standing Orders, it was a matter of discretion whether to adopt and follow a set of Standing Orders or waive the requirements of Standing Orders and proceed with the meeting of 05th August 2008 without it. This is because section 12(1)(b) of the Local-level Governments Administration Act, 1997 which provides for use of Standing Orders in meetings is not mandatory but merely directory.
18. He submitted Standing Orders are mere guidelines for the conduct of meetings of Local-level Governments. Their absence does not invalidate resolutions reached or passed at the meetings. Accordingly, as there were no Standing Orders at that time, the meeting of 05th August 2008 proceeded without them and Mr Tulia was appointed to chair the meeting and from that meeting, Mr Kunukunu was elected President. For these reasons, the Court should not disturb the resolution of the meeting of 05th August 2008 which resulted in the election of Mr Kunukunu as president as to do so would cause great injustice and inconvenience to the SWLLG and the people of South Wiru.
19. However, I am not persuaded by Mr Tamutai's submissions and must accept Mr Gonol's submissions. Mr Gonol submitted the grounds relating to the authority of Mr Tulia as acting District Administrator to chair the meeting of 05th August 2008 have their base in the Standing Orders of SWLLG. Notwithstanding Mr Tamutai's submission in relation to the absence of a Standing Order for SWLLG, he submitted there is one for SWLLG. It is a model one adopted by SWLLG which Mr Nondi has annexed in his affidavit (exhibit "D1"). Therefore, he submitted, according to the model Standing Orders, the only authorised person to chair the inaugural meeting is the District Administrator. Mr Tulia was not the District Administrator. He was the Deputy District Administrator and at that time, he was suspended from duties, hence could not lawfully chair the meeting. The only authorised person was Mr Puk who was the District Administrator.
20. Mr Gonol's submission in relation to the mandatory requirement of using Standing Orders in meetings of Local-level Governments has a lot of force as it is supported by evidence and law. Section 29 of the Organic Law on Provincial Governments and Local-level Governments provides for the membership of the legislative arm of a Local-level Government. It states that the legislative arm shall consist of a head of the Local-level Government who shall be elected in accordance with an Organic Law or an Act of Parliament and such other members. There is no Organic Law on the election of a head of a Local-level Government in place but there is an Act of Parliament. That Act of Parliament is the Local-level Governments Administration Act, 1997. The relevant provision of that Act dealing with election of a head of a Local-level Government is section 12.
21. I set out the parts relevant to the present case below:
"12. ELECTION OF HEAD OF A LOCAL-LEVEL GOVERNMENT.
(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) .............
(4) ............
(5) ............."
22. It is required that a meeting of a Local-level Government must be conducted in accordance with Standing Orders. Section 18 of the same Act provides for Standing Orders as follows:
"18. STANDING ORDERS.
(1) A Local-level Government shall make Standing Orders which shall, subject to the Organic Law and this Act, provide for -
(a) the calling, regulating and conducting of the meetings of the Local-level Government and of the committees of the Local-level Government; and
(b) the authentication of all documents required to be sealed with the seal of the Local-level Government; and
(c) such other matters relative to the procedures of the Local-level Government and committees of the Local-level Government as are necessary or convenient or as are directed by the Minister.
(2) The head of a Local-level Government shall cause a copy of the Standing Orders made by the Local-level Government (and of any amendments to the Standing Orders), certified under the hand of the head of the Local-level Government and the executive officer, to be forwarded to the Minister.
(3) The Minister may draw up and have published in the Local-level Government Gazette model Standing Orders, which may be adopted, with or without modification, by a Local-level Government."
23. There is no dispute no determination has been made for the election of the president of SWLLG under section 234(2) of the Organic Law on National and Local-level Government Elections. As there is no determination, the election of the President must take place in accordance with the Standing Orders of SWLLG. There is evidence from Mr Nondi of a model Standing Orders. He said this model Standing Order was accepted by the SWLLG and had been used by the SWLLG in past proceedings up til the 2008 Local-level Government elections.
24. While Mr Kunukunu and Mr Yokola maintained in their evidence that there were no Standing Orders for SWLLG and that it was strongly suggested to Mr Nondi during cross-examination by Mr Tamutai that the production of the model Standing Order was a fabrication as SWLLG had none, I am not satisfied Mr Nondi's evidence in relation to a Standing Order was fabricated. On the evidence, I accept, as fact, the SWLLG had Standing Orders and it is the one referred to by Mr Nondi in his response on cross-examination and affidavit (exhibit 'D1"). It is the model Standing Order drawn up and published in the Government Gazette by the Minister for Provincial and Local-level Government Affairs.
25. With respect, I reject Mr Tamutai's submission that Standing Orders are mere guidelines for the conduct of meetings of Local-level Governments and failure to observe them does not invalidate resolutions reached or passed at meetings. In my opinion, they are mandatory guidelines because when section 12(1)(b) of the Local-level Governments Administration Act, 1997 is read together with section 18 of the same Act, it makes it mandatory that meetings of Local-level Governments are to be conducted in accordance with Standing Orders. Where a Local-level Government does not have Standing Orders, it may adopt a model Standing Order drawn up and published in the Government Gazette by the Minister for Provincial and Local-level Government Affairs pursuant to section 18(3) of the Local-level Governments Administration Act, 1997.
26. There are very good reasons for meetings of Local-level Governments to be conducted in accordance with Standing Orders. One that immediately comes to mind is that, it is to prevent abuse of power by councilors and the other is that, it is to ensure that meetings are conducted fairly and in an orderly manner. They are important guidelines for the conduct of meetings and in a case where an inaugural meeting is convened following elections, they become very crucial in determining how the head (president) of a Local-level Government is elected. They determine when, where and how an inaugural meeting is called and who should chair it.
27. If I were to accept Mr Tamutai's submission that there are no Standing Orders for SWLLG or put it the other way, if a Local-level Government does not use Standing Orders, in my view, it may lead to chaos and confusion at meetings of Local-level Governments. That appears to be the case in the present case because Mr Kunukunu maintains that SWLLG does not have Standing Orders. The end result, we have two different people being elected president at two different meetings.
28. As I have found there is a model Standing Order adopted by SWLLG and as the meeting which resulted in the election of Mr Kunukunu as president was held without the model Standing Order, I find there is a serious flaw in the election of Mr Kunukunu as president of SWLLG. The failure to use Standing Orders has resulted in two different people being elected president at two different meetings. It follows there is no proper basis for the Court to declare Mr Kunukunu as president of SWLLG.
29. Further, it appears the meeting was held in contravention of the model Standing Orders. According to Standing Order 9, at the swearing of the councilors, it is the "chief executive officer" who is responsible for the reading of the local-level government gazette notification calling the local-level government together and also the presentation to the meeting of the writs or copies of the writs for the election of each elected councilor and the swearing in of the councilor. Furthermore, according to Standing Order 10(1), the local-level government shall then elect one of its councilors to be the head (president) of the local-level government and the chief executive officer is the person who shall act as chairman for the purposes of the election.
30. The term "chief executive officer" is defined by Standing Order 1 (Interpretation) as:
(a) the District Administrator appointed under section 73 of the Organic Law; or
(b) a person or officer appointed by the District Administrator to perform duties as chief executive officer under these Standing Orders in relation to the Local-level Government.
31. The evidence in relation to Mr Tulia's appointment as District Administrator under section 73 of the Organic Law on Provincial Governments and Local-level Governments is clear. According to his affidavit (exhibit" P5"), there is a contract of employment confirming his appointment as District Administrator for Ialibu/Pangia. The period of appointment is 12 months commencing on 17th November 2006 and ending on 16th November 2007. However, it is unclear from the evidence whether the appointment was extended beyond 16th November 2007. There is also no evidence that he was appointed acting District Administrator after the 12 months period had expired.
32. The evidence is that, he was the Deputy District Administrator and was suspended from duties at the relevant time: see copy of letter from the Provincial Administrator Mr William Powi dated 04th August 2008 in his affidavit (exhibit "P5"). Furthermore, while I accept that he was one of the members appointed to oversee the inaugural meeting of 05th August 2008, there is no evidence he was delegated powers to conduct the meeting of 05th August 2008 by the District Administrator. I am also not satisfied that just because he was one of the members assigned to oversee the meeting, the swearing of new councilors and election of new president and that Mr Puk was absent at that time gave him the authority to conduct the meeting. In my opinion, there must be delegation of authority by Mr Puk to him for him to conduct the meeting as required by Standing Orders 1(b) and 10(1) of SWLLG.
33. Then, there is evidence Mr Puk is the District Administrator. There is Mr Puk's letter to the Provincial Administrator Mr Powi dated 07th August 2008 and his letter to the Deputy Provincial Administrator Mr Stoney Kumalo dated 15th August 2008 in the affidavit of Mr Nondi (exhibit "D2") showing that he signed off as District Administrator. Mr Kunukunu does not deny the existence of these letters nor their authenticity. While there is no evidence of an instrument of appointment or a contract of employment confirming his appointment, on the strength of these letters, it appears there were two District Administrators for Ialibu/Pangia in 2008 because if Mr Puk was District Administrator in 2008, Mr Tulia also maintains that he was the District Administrator. In my view, there is serious conflict in relation to the occupant of the position of District Administrator.
34. These are serious flaws and discrepancies in relation to the authority of Mr Tulia to conduct the inaugural meeting of 05th August 2008 and a Court of law will be hesitant to endorse or validate a decision of a public body such as SWLLG where serious flaws or discrepancies have occurred in the decision making process. They also undermine or raise doubts in relation to the authority of Mr Puk to hold himself out as District Administrator of Ialibu/Pangia and conduct a subsequent meeting on 06th August 2008 at Ialibu station which eventually led to a final meeting whereby Mr Kumalo, the Deputy Provincial Administrator of Southern Highlands Province was purportedly delegated powers to conduct the meeting by Mr Puk at Agiru Centre in Mendi on 18th August 2008 where Mr Nondi was elected president.
35. On the evidence, I am not satisfied Mr Kunukunu has established that Mr Tulia was an authorised person either in his capacity as District Administrator or if he was Deputy Administrator, had under delegated authority from the District Administrator to conduct the meeting of 05th August 2008. For these reasons, there is no proper basis for the Court to declare him president of SWLLG and I dismiss the proceeding OS No 472 of 2008. Further, as Mr Nondi has sought an additional declaratory order to invalidate the election of Mr Kunukunu, based on the above reasons, I declare the election of Mr Kunukunu as president of SWLLG illegal, null and void.
36. As I have dismissed Mr Kunukunu's court proceeding, I consider it not necessary to consider the remaining grounds put forward by Mr Nondi. On the other hand, should Mr Nondi be declared president? Has he made out a case for the Court to declare him president? This is the final issue.
37. Mr Gonol submitted Mr Nondi should be declared president because he was properly elected at a meeting at Agiru Centre in Mendi on 18th August 2008 because Standing Orders of SWLLG were used. That meeting was chaired by Mr Kumalo, the Deputy Provincial Administrator of Southern Highlands Province. He further submitted Mr Kumalo chaired the meeting because Mr Puk delegated his powers by appointing Mr Kumalo to perform duties on his behalf in relation to the election of president. This was in accordance with Standing Orders 1(b) and 10(1) of SWLLG.
38. Firstly, there is no dispute a meeting of SWLLG was held at Agiru Centre in Mendi on 18th August 2008. Secondly, I accept Mr Gonol's submission to the extent that the meeting of 18th August 2008 was conducted using Standing Orders and I reject Mr Tamutai's submission that no Standing Orders were used in the conduct of that meeting. Mr Tamutai's submission ignores the evidence of a model Standing Order in the affidavit of Mr Nondi (exhibit "D1"). Further, it makes no difference since I have found that there is a Standing Order for SWLLG and that is the model Standing Order referred to above.
39. But for the same reasons I have given above, there are serious flaws or discrepancies in relation to the authority of Mr Puk to conduct the meeting of 06th August 2008 at Ialibu station. That meeting eventually led to the meeting of 18th August 2008 which was chaired by Mr Kumalo purportedly under delegated authority from Mr Puk. There is conflicting evidence in relation to who the District Administrator for Ialibu/Pangia was in 2008, especially between 05th August and 18th August 2008. That was the period the two elections took place. There is also no evidence of a delegation of authority by Mr Puk to Mr Kumalo to chair the meeting of 18th August 2008 as required by Standing Order 1(b).
40. For these reasons, I am not satisfied Mr Nondi has established that Mr Puk was an authorised person in his capacity as District Administrator to conduct the meeting on 06th August 2008 at Ialibu or delegated his powers as District Administrator to Mr Kumalo to chair the meeting of 18th August 2008 at Agiru Centre in Mendi. Therefore, there is no proper basis for the Court to also declare Mr Nondi as president of SWLLG. I refuse to declare Mr Nondi as president of SWLLG.
Conclusion
41. The end result is, I am not satisfied Mr Kunukunu and Mr Nondi have established each of their case on the balance of probabilities. In each case, serious breaches of the laws in relation to non-use of Standing Orders and authority of Chairman of meetings have occurred, and in my opinion, none of them is entitled to be declared president. The breaches in the election process must be rectified forthwith. Mr Nondi has sought an alternative relief. It is an order for a re-election of the president. I consider it fair and appropriate in the circumstances to order a re-election of the president, for to simply refuse the declaratory orders in relation to the validation of each party's election will leave a vacancy in the position of president. And so, it must be filled and this time, parties must strictly observe the processes set out under the Local-level Government Administration Act, 1997 and the Standing Orders. I grant that relief.
Cost
42. Cost is a discretionary matter. The general rule is it is awarded to the successful party. In the present case, Mr Kunukunu and Mr Nondi have not succeeded in obtaining the primary relief of declaring each election valid. Mr Nondi has, however, succeeded in obtaining the alternative relief. That is, an order for a re-election of president. I appreciate he has incurred costs in bringing the dispute to Court. He must be reimbursed his cost but at the end of the day, he has failed to obtain a declaration to validate his election as president elect. He and Mr Kunukunu must go back to the drawing board for a final result. For this reason, I will not award cost to him. I shall order that each party bear their own costs of both proceedings.
Order
43. The formal orders of the Court are:
4. Each party shall bear their own costs of both proceedings.
____________________________________
Tamutai Lawyers: Lawyers for Plaintiff (OS No 472 of 2008)
Paulus Dowa Lawyers: Lawyers for First Defendant (OS No 472 of 2008)
Paulus Dowa Lawyers: Lawyers for Plaintiff (OS No 361 of 2009)
Tamutai Lawyers: Lawyers for First Defendant (OS No 361 of 2009)
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2012/8.html