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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO 673 OF 2014
SAMA M MELLOMBO
Plaintiff
V
LIMA MULLUNG
First Defendant
WOE GORI
Second Defendant
KUAI DUP
Third Defendant
CHRIS DAUG
Fourth Defendant
Madang: Cannings J
2015: 30 January, 10 March
ASSOCIATIONS INCORPORATION ACT – incorporated association – certified constitution of an incorporated association – interpretation of provisions of constitution of incorporated association regarding office-bearers of association – election and removal from office of office-bearers – whether procedures for removal and replacement of office-bearers followed
The plaintiff sought a declaration that the defendants had been lawfully removed as office-bearers of an incorporated association and that he and others had been lawfully elected to replace them. The first defendant had been the chairman for a considerable period.
Held:
(1) The constitution of the association required that there be an executive committee consisting of 12 members, three being appointed by each of the four landowning areas; and that it was the executive committee that elected the four office-bearers: chairman, deputy chairman, secretary and treasurer.
(2) To be appointed a member of the executive committee, there first has to be a vacancy. For there to be a vacancy a member of the executive committee must: have completed his term, die, resign, be involved in a serious accident, commit misconduct in office or otherwise be lawfully removed from office in accordance with the constitution.
(3) A member of the executive committee may be removed if he loses the confidence of the executive committee or the landowning clans he represents (who are responsible for his appointment) or the members of the association (expressed at a properly convened general meeting) and the principles of natural justice are adhered to.
(4) Here, all members of the executive committee were lawfully removed from office, in that: a special or extraordinary meeting was convened following a request by at least 50 members of the association in accordance with Section 17.2 of the association's constitution; the defendants and other members of the executive committee were given adequate notice that an item on the agenda of the meeting would be their proposed removal; the failure of the defendants to convene or attend the meeting did not mean that the meeting could not go ahead or that no business could be transacted; members of the association were given adequate notice of the meeting; the question of removal of the members of the executive committee was properly put and voted on at the meeting, thereby creating vacancies in the 12 offices of executive committee members.
(5) The plaintiff and 11 other persons were duly appointed as members of the executive committee in accordance with Section 9.5 of the constitution.
(6) The new executive committee then duly appointed the plaintiff as chairman of the association and three others as vice-chairman, secretary and treasurer.
(7) The plaintiff was therefore granted the primary relief he sought. It was ordered and declared that the defendants were lawfully removed from office, that the plaintiff was duly elected as chairman and public officer and three others were duly elected as vice-chairman, secretary and treasurer, that the defendants shall give possession of all of the association's assets in their custody or control to the plaintiff and that the defendants are restrained from holding themselves out as office-bearers of the association.
Cases cited
The following cases are cited in the judgment:
Lima Mullung v Sama Mellombo (2014) N5505
Pasisi v Bururu (2010) N3890)
Vitolo v Mautu (2010) N4104
ORIGINATING SUMMONS
This was an application for declarations and orders regarding election of officer-bearers in an incorporated association.
Counsel
S M Mellombo, the plaintiff, in person
10th March, 2015
1. CANNINGS J: The plaintiff, Sama M Mellombo, applies by originating summons for a declaration that he is the duly elected chairman of the Basamuk Landowners Association Incorporated. He also seeks a declaration that the first defendant, Lima Mullung, has been lawfully removed as chairman of that association and that the other three defendants, Woe Gori, Kuai Dup and Chris Daug, have been lawfully removed as office-bearers and replaced by others. The Basamuk Landowners Association is an incorporated association under the Associations Incorporation Act Chapter No 142.
2. Meten Lawyers filed a notice of intention to defend on behalf of the defendants and participated in the pre-trial process including setting of the trial date. However there was no appearance by or on behalf of the defendants at the trial. The plaintiff's evidence was tendered without objection. The plaintiff, of course, remained obliged to satisfy the Court that he should be granted the relief sought in the originating summons.
3. The plaintiff claims that the defendants were removed from office and replaced by him and others aligned with him at an extraordinary meeting of the Basamuk Landowners Association held at Asamingal Market, Tugyag, Ward 30 Saidor Local-level Government area, Rai Coast District, Madang Province on Wednesday 16 April 2014.
4. This is not the first time that this Court has been called upon to determine the question of management and control of the Basamuk Landowners Association. On 21 February 2014 the Court gave its decision in OS No 601 of 2013, Lima Mullung v Sama Mellombo (2014) N5505. In that case the first defendant, Mr Mullung, successfully applied for a declaration that he had been elected as chairman of the Association in February 2013 and that the purported election of the plaintiff, Mr Mellombo, in October 2013, was null and void.
5. It is evident that since that decision Mr Mellombo has made another attempt to wrest control of the Association from Mr Mullung. The ultimate question is whether on this occasion Mr Mellombo has done it properly. Three issues arise:
1 WHAT PROCEDURES HAVE TO BE FOLLOWED FOR REMOVAL AND ELECTION OF OFFICE-BEARERS?
6. This issue was determined in the previous case, Lima Mullung v Sama Mellombo (2014) N5505. The constitution of the Association provides that there are four office-bearers: chairman, deputy chairman, secretary and treasurer. They are elected, not directly by the members of the association, but by the members of the executive committee (sections 9 and 12). To be elected an office-bearer a person must be a member of the executive committee and be a customary landowner (sections 9, 10).
7. There are 12 members of the executive committee. They are not elected by all members of the association. Instead they are appointed by the clans that represent each of the four landowning areas in the land lying within the leases in Ward 30 of the relevant Local-level Government area (section 2A(1)).
8. Each of those four areas is entitled to appoint three members (as their representatives) to the executive committee (sections 9(5), 12(2)(a)). To be appointed a member of the executive committee, a person must be a financial member of the association and "mature and well respected within the area" (section 10).
9. To be appointed as a member of the executive committee, there must be a vacancy. For there to be a vacancy, a member of the executive committee must: have completed his term (which is three years (section 9(3)), die, resign, be involved in a serious accident, commit misconduct in office or otherwise be lawfully removed from office in accordance with the constitution (sections 13, 14, 15).
10. The constitution is silent on the procedure for removal from office of a member of the executive committee. However, it is to be reasonably inferred that a member may be removed if he loses the confidence of the executive committee or the landowning clans he represents (who are responsible for his appointment) or the members of the association (expressed at a properly convened general meeting) and the principles of natural justice are adhered to (Pasisi v Bururu (2010) N3890), Vitolo v Mautu (2010) N4104).
2 WERE PROPER PROCEDURES FOLLOWED IN THIS CASE?
11. I make the following findings of fact as to the procedure that was actually adopted:
(a) In early March 2014, 100 members of the Association, including the plaintiff, signed a petition, addressed to the defendants, calling for a special or extraordinary meeting of the Association to be held within 30 days.
(b) The petition was personally served on the second, third and fourth defendants on 7 March 2014 and it was posted on 11 March 2014 to the first defendant.
(c) The plaintiff visited the first defendant on 17 March 2014 at his residence in Madang town and informed him of the petition.
(d) The defendants failed to convene the meeting requested.
(e) On 9 April 2014 the plaintiff published a toksave notifying all members of the Association of an extraordinary general meeting of the Association at Asamingal Market at 10.00 am on 16 April 2014. Two items were listed on the agenda: financial reports for the last three years and the proposal to appoint a new executive committee. All members of the Association were urged to attend.
(f) A meeting took place in accordance with the toksave. The defendants did not attend. According to the minutes of the meeting, all financial members from the four landowning areas were in attendance. Mr D Dumba of Lumuguang Clan (of the Limestone area) was appointed chairman of the meeting. As to the first agenda item it was resolved that "the Treasurer failed to attend the meeting to present the annual audited accounts of the Association ..." As to the second agenda item, Yambel Udi moved a motion for removal of all members of the executive committee on various grounds including "no annual finance reports for the past three years given to members of the Association". The motion was seconded by John Imso. The result was recorded as "All agreed. Motion carried." The clans of each of the four landowning areas then gave the names of three persons from each area appointed as the 12 executive committee members. An election was then conducted amongst that group of 12, resulting in the election of the following office-bearers:
- Chairman (and Public Officer) Sama Mellombo;
- Vice-Chairman Daru Dumba;
- Secretary Walon Sebmam;
- Treasurer Yambel Udi.
12. I find that the above procedure was compliant with the constitution of the Association. A proper request was made to the defendants for an extraordinary general meeting. The defendants breached the constitution by not convening such a meeting. The plaintiff responded reasonably and lawfully by facilitating the meeting. Proper notice of the meeting was given in accordance with the constitution. The agenda and the time and place of the meeting were clear. The defendants failed to attend the meeting, which was lawfully conducted in their absence. The failure of the defendants to convene or attend the meeting did not mean that the meeting could not go ahead or that no business could be transacted. They were given a reasonable opportunity to be heard on the question of whether they should be removed from office so the principles of natural justice were complied with. The members of the Association unanimously voted for the removal of the defendants as members of the executive committee. They had lost the confidence of the members and were lawfully removed from office. That created 12 vacancies, which were filled when the clans of each of the four landowning areas gave the names of three persons from each area appointed as the 12 executive committee members. An election was then properly conducted amongst that group of 12, resulting in the election of the plaintiff and three others as office-bearers. I am satisfied that as a matter of law proper procedures were followed.
3 WHAT DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?
13. The plaintiff has proven that proper procedures were followed. He will be granted the primary relief he seeks. In paragraph 6 of the originating summons he seeks an order to hold the signatories to the Association's bank account personally responsible for cash cheques drawn against the Association's account. I refuse to make such an order. Although there is evidence that considerable amounts of cash have been withdrawn from the account over the past few years, that has not been a central issue in this case and the order sought is cast in terms that are too vague to be meaningful. Costs will follow the event.
ORDER
(1) The defendants have been lawfully removed as office-bearers of Basamuk Landowners Association Inc.
(2) The plaintiff, Sama M Mellombo, is the duly elected chairman and public officer of Basamuk Landowners Association Inc and the other members of the executive committee are Mrs N Willem, Mr J Imso, Mr S Lukunge, Mr Y Udi (treasurer), Mr G Josare, Mr T Igo, Mr D Dumba (vice-chairman), Mr Y Kube, Mr W Sebmam (secretary), Mr S Nunguro and Mr L Udi.
(3) The defendants shall forthwith give possession of all of the assets of Basamuk Landowners Association in their custody or control to the plaintiff, who is obliged to use and deploy them for the use and betterment of the interests of the Association.
(4) The defendants are restrained from holding themselves out as office-bearers of Basamuk Landowners Association Inc.
(5) The defendants shall pay the plaintiff's costs of these proceedings on a party-party basis which shall, if not agreed, be taxed.
Ordered accordingly.
____________________________
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