Councilor Rex Kune and Councilor Michael Kapak v Mr Gokumi Kimen, District Administrator for South Waghi District and Mr Benny Laki, Principal Advisor for Provincial & Local Level Government Affairs – WHP, and Mr Malcolm Culligan, Obe, Provincial Administrator- Dept of Western Highlands, and Mr Manasupe Zurenuoc, Obe, The Secretary for Department of Provincial & Local Level Government Affairs, and The Independent State of Papua New Guinea (2010) N4018

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 20 April 2010
• Court: National Court
• Citation: (2010) N4018
• Docket Number: OS NO 147 OF 2010
• Year: 2010
• Judgement Number: N4018

Full Title: OS NO 147 OF 2010; Councilor Rex Kune v Councilor Michael Kapak and Mr Gokumi Kimen District Administrator for South Waghi District and Mr Benny Laki Principal Advisor for Provincial & Local Level Government Affairs - WHP and Mr Malcolm Culligan, OBE Provincial Administrator- Dept of Western Highlands and Mr Manasupe Zurenuoc OBE The Secretary for Department of Provincial & Local Level Government Affairs and The Independent State of Papua New Guinea (2010) N4018

National Court: Makail, J

Judgment Delivered: 20 April 2010

N4018

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 147 OF 2010

BETWEEN

COUNCILOR REX KUNE

Plaintiff

AND

COUNCILOR MICHAEL KAPAK

First Defendant

AND

MR GOKUMI KIMEN

District Administrator for South Waghi District

Second Defendant

AND

MR BENNY LAKI

Principal Advisor for Provincial & Local Level Government Affairs - WHP

Third Defendant

AND

MR MALCOLM CULLIGAN, OBE

Provincial Administrator- Dept of Western Highlands

Fourth Defendant

AND

MR MANASUPE ZURENUOC, OBE

The Secretary for Department of Provincial & Local Level Government Affairs

Fifth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Sixth Defendant

Minj: Makail, J

2010: 15th & 20th April

INJUNCTIONS - Interlocutory injunctions - Equitable relief - Prohibitory injunctions - Mandatory injunctions - Grant of - Principles of

ELECTIONS - Local Level Government elections - Election of president - Validity of - Dispute of - Motion of no confidence - Sufficiency of votes - Two thirds absolute majority - Local-level Governments Administration Act, 1997 - Section 12(3)(c).

PRACTICE & PROCEDURE - Pleading of reliefs - Failure of - Effect of - Request to amend by seeking additional reliefs - Grounds of - National Court Rules - Order 12, rule 1 - Order 8, rule 50.

Cases cited:

Thaddeus Kambanei -v- The National Executive Council & 5 Ors (2006) N3064

Yama Group of Companies Ltd -v- PNG Power Ltd (2005) N2831

Paul Marika -v- Clement Silari (2004) N2729

Hagai Joshua & Gimson Sauno -v- Eron Meya & Ors [1988-89] PNGLR 188

Counsel:

Mr R Otto, for Plaintiff

Mr P Pagne, for First, Second & Third Defendants

No appearance, for Fourth, Fifth & Sixth Defendants

INTERLOCUTORY RULING

20th April, 2010

1. MAKAIL, J: In this interlocutory ruling, the plaintiff is an elected council member of Ngunba Tsens council ward in South Waghi Local Level Government and seeks by notice of motion filed on 06th April 2010, inter-alia, an interlocutory injunction to restrain the first defendant from holding himself out as president of South Waghi Local Level Government, the second, third, fourth, fifth and sixth defendants from recognizing the first defendant as president of South Waghi Local Level Government and a mandatory injunction compelling the defendants to allow him to carry out his duties and functions as president of South Waghi Local Level Government.

2. The interlocutory application arose from a dispute in relation to the validity of the election of the plaintiff as president of South Waghi Local Level Government. From the affidavit of the plaintiff sworn and filed on 06th April 2010, affidavit of Maria Gele sworn and filed on 6th April 2010, affidavit of Peter Hai sworn and filed on 6th April 2010, a further affidavit of the plaintiff sworn and filed on 14th April 2010, and affidavit in reply of the second defendant sworn and filed on 12th April 2010, much of the facts surrounding the election of the plaintiff as president are not in dispute.

3. There are a total of 45 council members of the South Waghi Local Level Government. The election of the councilor for Kudjip Hospital ward was declared a failure following the Local-level Government elections in 2008, hence no councilor was elected to represent that ward on the South Waghi Local Level Government assembly at this point in time. This left only 44 sitting councilors on the South Waghi Local Level Government assembly. Also, following the Local-level Government elections in 2008, the first defendant was elected by the council members as president of South Waghi Local Level Government.

4. After the 18 months grace period lapsed on 18th August 2009, the plaintiff gave notice to call a meeting to move a motion of no confidence against the first defendant as president. According to the notice dated 2nd February 2010, a number of reasons were put forward as grounds for the motion of no confidence in the first defendant as president. One of them was that, the first defendant “abused his tenure by squandering public funds and has miserably failed to administer the prescribed duties of this LLG according to law.” An example of a case of abuse of public funds was that, the first and second quarter grants allocation to South Waghi Local Level Government in June 2009 were not expended according to its 2009 budget. It was alleged that these funds were paid by the first defendant to settle his debts incurred during the period of the election of president. As a result, there are no funds to pay Peace Committees allowances, ancillary staff wages and implementation of identified projects in the District.

5. On 23rd March 2010, 43 councilors of South Waghi Local Level Government including the plaintiff and the first defendant convened a meeting at the South Waghi Local Level Government Chambers in Minj town. Also present were the second, third and fourth defendants. This meeting was convened to debate the motion of no confidence in the first defendant as president. The meeting was chaired by the second defendant while the third and fourth defendants attended to oversee and ensure that the meeting proceeded smoothly. The first defendant was nominated again to contest the presidency post and the plaintiff was nominated as an alternate candidate for president and votes were taken. The votes were taken by secret ballot and after they were taken, the results were counted. The results were:

1. One councilor (Councilor Robert Mun) abstained from voting;

2. The first defendant scored 15 votes; and

3. The plaintiff scored 28 votes.

6. As the plaintiff scored the highest vote, the fourth defendant declared him as new president. On the next day, the 24th March 2010, the fourth defendant wrote to the fifth defendant to seek clarification in relation to the election of the plaintiff, in particular on the issue of two thirds absolute majority rule. On 25th March 2010, the fifth defendant replied to the fourth defendant advising that in a case of a vote of no confidence in a president of a Local Level Government, the two thirds absolute majority rule is counted from the total number of seats in a Local Level Government. In this case, as South Waghi Local Level Government has 44 sitting councilors, two thirds absolute majority of 44 is 29 or more. Based on that advice, the second defendant wrote to the plaintiff advising him that his election as president on 23rd March 2010 was void because the results had not met the two thirds absolute majority rule. As a result, the first defendant remained president and continued to perform his duties and functions as president. This led to the plaintiff commencing this proceeding on 6th April 2010 to assert his claim as president elect.

7. I have heard submissions from counsel representing the plaintiff and counsel for the first, second and third defendants in relation to the application for interim orders. I have not heard any from the fourth, fifth and sixth defendants although it is noted that they had been respectively served the court process on 09th April 2010. In essence, the plaintiff seeks an interlocutory prohibitory injunction and a mandatory injunction. An interlocutory injunction is an equitable relief. It is granted at the discretion of the Court. The Court’s power to grant injunctions, interlocutory or permanent is derived from the principles of common law and equity as applied in England prior to Papua New Guinea’s independence on 16th September 1975 and adopted as part of the Underlying law: see schedule 2.2 of the Constitution.

8. The principles applicable for grant of injunctions are settled in this jurisdiction. An applicant must first, satisfy the Court that there are serious issues raised in the proceeding. Secondly, that, the balance of convenience favour the grant of the injunction and finally, that damages would not be an adequate remedy. In respect of mandatory injunctions, an applicant must show that there is a strong case or real prospect of success at trial in relation to the issue or issues raised in the proceeding and that, there will be less damage or less injustice to the defendant in the event that the applicant is unsuccessful at trial. As to the question of damage or injustice to the defendant, the Court would normally refuse the relief unless it is shown that the prejudice and hardship to the applicant is disproportionate to the prejudice and hardship to be caused to the defendant in performing the order.

9. In Thaddeus Kambanei -v- The National Executive Council & 5 Ors (2006) N3064, Injia, DCJ (as he then was) quoted with approval the principles listed by Lay, J in Yama Group of Companies Ltd -v- PNG Power Ltd (2005) N2831 following his comprehensive consideration of the English, Australian and Papua New Guinean authorities as follows:

"A mandatory injunction should normally only be granted where a strong case that...