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Wereh v Cajetan [2019] PGNC 406; N8086 (4 November 2019)

N8086

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (EP) NO. 2 OF 2019

BETWEEN
SAMSON WEREH
District Administrator and Chief Executive Officer
for Ialibu-Pangia District
Plaintiff

AND
JOSEPH CAJETAN
Acting Provincial Administrator for Southern Highlands Provincial Administration
First Defendant

AND
SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT
Second Defendant

Waigani: Makail, J
2019: 10^th October & 4^th November

ELECTION – Local-level Governments Election – Election of Heads of Local-level Governments – Election following Local-level Governments election – Holding of inaugural meeting – Organic Law on National and Local-level Governments Elections– Section 234(2)(b) – Local-level Governments Administration Act, 1997 – Section 12(1)(a)

Cases cited:
Nil

JUDGMENT

4^th November, 2019

1. MAKAIL, J: This case is about a conflict over the venue of the meeting for the election of the head of Ialibu Urban Local-level Government (“Ialibu ULLG”) in Southern Highland Province. It arises from the recent Local-level Government election whereby members who were elected in the election will, elect from amongst themselves, a head of the ULLG pursuant to Section 234(2)(b) of the Organic Law on National and Local-level Governments Elections and Section 12(1)(a) of the Local-level Government Administration Act, 1997.

2. It is important to sort out the differing opinions on the authorised venue of the meeting because it is pivotal to the question of who is the head of the Ialibu ULLG.

Conflict of Venue of Meeting

3. One group of members met at Ialibu Government Station and elected the head. The meeting was called by the plaintiff and held on 7^th August 2019. The second group met in Mendi on 14^th August 2019 and elected another head of the same ULLG. This meeting was called by the first defendant.

Authority to call Meeting

4. The conflicting venue of the meeting raises the pertinent question of who is or who was authorised to call the meeting. It also resulted in the suspension of the plaintiff as the District Administrator and Chief Executive Officer (“CEO”) of Ialibu-Pangia District for insubordination.

5. There is no provision in the Organic Law on National and Local-level Governments Elections or the Organic Law on Provincial Governments and Local-level Governments to answer this question. The reference to “a meeting of a Local-level Government shall be called by the head of that Local-level Government” in Section 23 of the Local-level Government Administration Act, 1997 does not assist because there was no head at the material time to make that call.

Press Release issued by Minister

6. The plaintiff relies on a press release issued by the Minister for Inter-Government Relations (“Minister”) dated 31^st July 2019 to claim that he was authorised to call the meeting at Ialibu Government Station at the Council Chamber for the election of the head and that his suspension by the first defendant was unlawful.

7. Paragraph 2 of the press release refers to who should call and preside over the first meeting of the Local-level Government (“LLG”). It states that it is the District Administrator as CEO or his delegate who can call and conduct the first meeting of the LLG.

8. Paragraph 3 refers to the date to conduct the first meeting. It states that it should not be more than 15 days after the date fixed for the return of the writs for the LLG elections. Finally, paragraph 4 refers to the venue of the first meeting. It states that the meeting must be conducted within the LLG Seat of the Government which is the Council Chamber or alternatively, a suitable venue within the District Headquarter.

9. The plaintiff submits that as the District Administrator and CEO of Ialibu-Pangia District and consistent with the press release of the Minister, he called and conducted the first meeting of the Ialibu Urban LLG on 7^th August 2019 at Ialibu Council Chamber to elect the head of the Ialibu Urban LLG.

10. Furthermore, he refers to a Circular Instruction No. 02 of 2019 by the Minister and a letter by the Minister to the Governor of the second defendant dated 28^th September 2019 as supporting his authority to call the meeting at Ialibu.

Circular Instruction issued by Provincial Administrator

11. The defendants say that the press release is incapable of conferring authority on the plaintiff to call the first meeting of the Ialibu ULLG to elect its head. It was merely a press release as a public announcement. In any case, it does not support the plaintiff’s claim as asserted but rather the position of the first defendant wherein the first defendant sought a “neutral venue” for the election of not only the head of the Ialibu ULLG but other LLGs in the province to be in Mendi.

12. To this end, the first defendant says that due to security reasons, he had a meeting with the Minister prior to the calling of the meeting of each LLG and it was agreed that in the case of Southern Highlands Province, election of the heads of the LLGs will be held at Mendi at Agiru Centre Assembly Hall. They rely on a Circular Instruction issued by the first defendant dated 5^th August 2019 as the authority to hold the said meeting in Mendi.

Consideration

13. However, the plaintiff’s case is preferred over the defendants’ because first, it is consistent with the instructions of the Minister in the press release of 31^st July 2019. That is to say, unless it is proven to the contrary, on the face of the record, the press release must be accepted as being authorised by the Minister to give directions to the District Administrators and other stakeholders to call and conduct meetings for the elections of heads of LLGs. On this authority, it is sufficient to find that the first meeting called by the plaintiff was called by an authorised person at an authorised venue in the District and within 15 days after the date fixed for the return of writs.

14. Second, the claim by the first defendant that the Minister had agreed to allow elections of the heads of LLGs in Southern Highlands Province to be held in Mendi as a “neutral venue” is doubtful and will be rejected because there is evidence in the Circular Instruction No. 02 of 2019 dated 7^th August 2019 by the Minister under Item 2 stating that “District Administrators as official Chief Executive Officers to the LLG Assembly or the Delegates are responsible to schedule, call, and preside” over the first meeting of the Local-level Government.

15. Third, the further evidence in the letter by the Minister to the Governor of the second defendant dated 28^th September 2019 puts it beyond doubt that the meeting held at Ialibu to elect the head of the Ialibu Urban LLG was in order. Fourth, given the three-tier Government structure that Papua New Guinea has adopted, the third level being the LLG must be given that level of independence and authority to conduct its meeting to elect its head with minimal interference or control by the Provincial Government, in this case, the second defendant.

16. For all these reasons, the call by the plaintiff to conduct the first meeting of the Ialibu ULLG on 7^th August 2019 at Ialibu was in order and will be upheld by the Court. As a consequence, there was no lawful reason to suspend the plaintiff.

Relief

17. As to the relief, the first defendant points out that the statute and Organic Law in the originating summons as cited by the plaintiff as forming the legal basis of the claim do not exist. While there may be a reference to an incorrect name of the statute and Organic Law under consideration, there is no evidence to show that the defendants were misled or denied a fair trial as a consequence of the incorrect name of the statute and Organic Law.

18. Thus, the reference to “Local Level Government Act” at paragraphs 1, 3 and 4 and “Organic Law on Provincial and Local Level Government” at paragraph 2 of the originating summons will be modified and read as “Local-level Government Administration Act” and “Organic Law on Provincial Government and Local-level Government”.

Order

19. The orders sought in the originating summons will be granted as follows:

1. An Order that the first defendant’s Circular Instruction dated 5^th August 2019 is in direct breach of the Ministerial Directive in the press release dated 31^st July 2019 and as such, any election conducted in Mendi for the Local-level Governments for Ialibu Pangia District is illegal, null and void ab initio pursuant to Section 155(4) of the Constitution and is inconsistent with Section 12(1)(a) and (b) of the Local-level Government Administration Act as it is contrary to the Ministerial Directive of the Minister for Inter-Government Relations.
   
2. An Order declaring that the suspension of the plaintiff, on the basis of non-compliance with the first defendant’s Circular Instruction dated 5^th August 2019, which is in direct breach of Section 234 of the Organic Law on Provincial Governments and Local-level Governments and the Minister for Inter-Government Relation’s instructions in the press release dated 31^st July 2019 is illegal, null and void ab initio pursuant to Section 155(4) of the Constitution.
   
3. An Order that the plaintiff in accordance with Circular Instruction No. 02 of 2019 shall conduct the elections in Ialibu-Pangia electorate pursuant to Section 23 of the Local-level Government Administration Act.
   
4. An Order that the first defendant’s Circular Instruction dated 5^th August 2019 in having the first meeting conducted in Mendi for the Ialibu Urban Local-level Government is inconsistent with Section 12 and Section 23 of the Local-level Government Administration Act, and therefore, null and void and of no effect.
   
5. The defendants shall pay the plaintiff’s costs of the proceeding, to be taxed, if not agreed.
   

Judgment and orders accordingly.
______________________________________________________________
Kipoi Lawyers : Lawyers for Plaintiff
Jopo Lawyers : Lawyers for First Defendant
Harvey Nii Lawyers : Lawyers for Second Defendant