|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
OS NO 115 OF 2013
TOBBY BARE OF MAURE CLAN, BRUNO GARIMA OF MAURE CLAN, JOHN ARUA OF IMURUBA CLAN, EDDY UTU OF IMURUBA CLAN, BONNY YOMBAI OF PAGAIZI
CLAN & BITS KRIVI OF ROAD EASEMENT AREA
Plaintiffs
V
MATHEW DENGUO TIGAVU OF NOKOMBOI CLAN, MICHAEL YORI OF NOKOMBOI CLAN, KENNY MANGOA OF NOKOMBOI CLAN, ANGIA BUNGRU OF WATER EASEMENT
AREA, SIMON MARIMBI OF ROAD EASEMENT AREA, DIRI MOVIKAI OF MAURE CLAN, AUGUST KIKIMBE OF PAGAIZI CLAN, EDWARD KURAME OF PAGAIZI CLAN,
EDDIE ITARAI OF PAGAIZI CLAN, SEVURE NOKOMA OF PAGAIZI CLAN, RAPHAEL BANANGA BENE,
DISTRICT MINE AND LIAISON OFFICER & NICHOLAS WAI PUK, RAMU NICKEL PROJECT LIAISON OFFICER
Defendants
Madang: Cannings J
2013: 14 June, 22 August, 25 October
INCORPORATED ASSOCIATION – interpretation of provisions of constitution of incorporated association regarding election of office-bearers of executive committee – whether Vice-Chairman entitled to preside in absence of deceased Chairman – distinction between eligibility to participate in election of officer-bearers and quorum requirements.
The plaintiffs were aggrieved by the manner of election of the office-bearers of a landowner association, arguing that it offended against two provisions of the association's constitution. It was argued that: (1) Section 11(2)(b)(ii), which provides that in the absence of the Chairman, the Vice-Chairman will call and preside over all Executive Committee meetings, was breached as the meeting at which the office-bearers were elected was presided over by a person other than the Vice-Chairman, in circumstances where the Chairman was deceased and the Vice-Chairman was entitled to preside at the meeting; and (2) Section 12(3)(a), which provides that "election of the four office-bearers shall be made by the 13 appointees in Sub-section 2(a) and (b)", was breached as only 10 of the required number of 13 were present, thus there was no quorum.
Held:
(1) The meeting at which the office-bearers were elected was not a meeting of the Executive Committee, as such. It was a special meeting for the purposes of election of office-bearers and only certain members of the Executive Committee were entitled to participate. The constitution of the Association was silent on the procedure to be adopted for such an election. Here, the procedure was fair and transparent and there was no breach of the constitution arising from the Vice-Chairman not presiding at the meeting. There was no breach of Section 11(2)(b)(ii).
(2) Section 12(3)(a) is an eligibility provision. It does not prescribe the quorum for a meeting. As the constitution is silent on the procedure to be adopted for election of office-bearers it is sufficient if the 13 persons eligible to take part in the election of office-bearers are afforded a reasonable opportunity to do so. In this case, all 15 members of the Executive Committee attended the meeting place. Five of them boycotted the meeting of their own volition. Each member of the Executive Committee was afforded a reasonable opportunity to participate. There was no breach of Section 12(3)(a).
(3) As neither of the alleged breaches of the constitution was proven, all relief sought by the plaintiffs was refused.
Cases cited
No cases are cited in the judgment.
ORIGINATING SUMMONS
This was an application for declarations and orders regarding election of officer-bearers in an incorporated association.
Counsel
W Akuani, for the plaintiffs
G Pipike, for the first to tenth defendants
25th October, 2013
1. CANNINGS J: The plaintiffs, Tobby Bare and five others, are members of the Kurumbukari Landowners Association Incorporated. They are aggrieved by the manner in which four office-bearers were elected at a meeting of some members of the Executive Committee of the Association at Usino Local-level Government Chambers on 7 February 2013. The office-bearers elected were:
2. The plaintiffs apply by originating summons for various declarations and orders which would nullify election of the office-bearers and result in a fresh election being held. The plaintiffs argue that the election of 7 February 2013 offended against two provisions of the association's constitution: Section 11(2)(b)(ii), which relates to the role of the Vice-Chairman, and Section 12(3)(a), which concerns the members of the Executive Committee responsible for election of the office-bearers. I will address the issues in this order:
1 WAS SECTION 11(2)(b)(ii) BREACHED?
3. Section 11 prescribes the duties and responsibilities of the four office-bearers. Section 11(2) deals with the Vice-Chairman. It states:
The Vice-Chairman shall: [sic]
(a) In the absence of the Chairman, the Vice-Chairman will be responsible for the overall administration of the Association, and
(b) In the absence or unwillingness of the Chairman, he will call for and preside over all:
- (i) the general meetings, and
- (ii) the Executive Committee meetings.
4. The situation prevailing in February 2013 was that the occasion had arisen for election of the four office-bearers. To be eligible for election as an office-bearer a member of the Association must be a member of the Executive Committee, which at the time of the meeting consisted of 15 members. The third plaintiff, Mr John Arua, was the Vice-Chairman immediately prior to the meeting.
5. The plaintiffs argue that Mr Arua was, because of the death of the Chairman David Tigavu in January 2012, the acting Chairman. More specifically they argue that Mr Arua, as Vice-Chairman, was in February 2013 authorised by Section 11(2)(b)(ii) to call and preside over all Executive Committee meetings. However, that did not happen as the meeting was organised and called by the District Mine and Liaison Officer, Mr Raphael Bananga Bene (the eleventh defendant) and the Ramu Nickel Project Officer, Mr Nicholas Wai Puk (the twelfth defendant) and presided over by an officer of the Electoral Commission, Mr Walter Mombi, who performed the role of returning officer. The plaintiffs thus argue that because Mr Arua did not call the meeting of 7 February 2013 and was not permitted to preside, Section 11(2)(b)(ii) was breached and the meeting and the election of the officer-bearers were unlawful.
6. The defendants (specifically the first to tenth defendants as the eleventh and twelfth defendants were not represented) do not dispute the facts relied on by the plaintiffs. They agree that the meeting was organised by Mr Bene and Mr Wai and that it was presided over, in the sense that election of office-bearers was controlled, by Mr Mombi. However they argue that the meeting of 7 February 2013 was not a normal Executive Committee meeting. It was a special meeting facilitated by the Mineral Resources Authority and Madang Provincial Government in accordance with procedures that had applied in the past and the election of office-bearers was conducted by an independent authority. Besides that Mr Arua was present at the meeting but decided with a few other members of the Executive Committee to walk out of the meeting in protest.
7. I uphold the defendants' argument that this was not a normal Executive Committee meeting. It was a meeting called for the sole purpose of election of office-bearers. It was not a meeting of the Executive Committee, as such. It was a special meeting and only certain members of the Executive Committee were entitled to participate in the election of office-bearers. The constitution of the Association is silent on the procedure to be adopted for such an election. Here, I find that the procedure was fair and transparent, particularly as the meeting and the election were called and conducted by independent public officials. There was no breach of the constitution arising from the Vice-Chairman not presiding. There was no breach of Section 11(2)(b)(ii).
2 WAS SECTION 12(3)(a) BREACHED?
8. The qualifications for membership of the Executive Committee and for election as an office-bearer are prescribed by Section 10 of the constitution. To be a member of the Executive Committee a person must be a financial member of the Association and be "mature and well respected within the area". To be an office-bearer a person must be a member of the Executive Committee and "a customary landowner". Section 12 provides for the election of members of the Executive Committee and office-bearers. It states:
9. The plaintiffs argue that on 7 February 2013 the Executive Committee consisted of 15 members. They all attended the meeting place but only ten remained for and participated in the election of office-bearers. The other five, including Mr Arua, boycotted the meeting. The plaintiffs argue that Section 12(3)(a) requires that all 13 Executive Committee members referred to in that provision attend the meeting and participate in election of the office-bearers. Any lesser number will amount to a lack of a quorum. Because only ten members participated, Section 12(3)(a)was breached, and therefore the meeting and the election of officer-bearers were unlawful.
10. The defendants do not dispute the facts relied on by the plaintiffs. They agree that the meeting place was attended by the full membership of the Executive Committee but five members boycotted the meeting and only ten members participated in the election of office-bearers. However they argue that Section 12(3)(a) does not prescribe the quorum for a meeting that elects office-bearers. It is simply an eligibility provision.
11. I uphold the defendants' argument that Section 12(3)(a) is an eligibility provision. It does not prescribe a quorum. As I ruled above, this was not a normal Executive Committee meeting. It was a meeting called for the sole purpose of election of office-bearers. It was not a meeting of the Executive Committee, as such. It was a special meeting and only certain members of the Executive Committee – the 13 appointed under Sections 12(2)(a) and 12(2)(b) – were entitled to participate in the election of office-bearers. The constitution of the Association is silent on the procedure to be adopted for such an election. In particular, no quorum is prescribed. I find that, provided each of the 13 members of the Executive Committee entitled to participate in the election of office-bearers is afforded a reasonable opportunity to do so, the requirements of Section 12(3)(a) will have been complied with. In this case all 15 members of the Executive Committee attended the meeting place. Five of them boycotted the meeting of their own volition. Each member of the Executive Committee was afforded a reasonable opportunity to participate. There was no breach of Section 12(3)(a).
3 WHAT ORDERS SHOULD THE COURT MAKE?
12. As neither of the alleged breaches of the constitution has been proven, it follows that all relief sought by the plaintiffs will be refused. Costs will follow the event.
ORDER
(1) All relief sought in the originating summons is refused.
(2) The plaintiffs shall pay the first to tenth defendants' costs of these proceedings on a party-party basis which shall, if not agreed, be taxed.
Ordered accordingly.
____________________________________________________
William Akuani Lawyers: Lawyers for the Plaintiffs
Paul Paraka Lawyers: Lawyers for the 1st to 10th Defendants
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2013/251.html