Mainu v Bayam [2005] PGDC 131; DC548 (20 December 2005)

DC548

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

DCCi 471 of 2004

BETWEEN

KENSI MAINU
Complainant

AND

TAGIRO BAYAM
1st Defendnat

ESIEPE AMASE
2nd Defendant

EPISE UDANG
3rd Defendant

Lae: C Inkisopo
2005: 20 December

CIVIL - District Courts Act Chapter 40 – General Ancillary jurisdiction of the District Court under Section 22 of the Act – interlocutory restraining relief pending determination of ‘substantive matter’ - Application for restraining orders against the sale of cows & against the release of payment by buyer of cows sold pending the final determination of “substantive matter” – what is the “substantive matter” in this case that needs determination

District Court private prosecution - proceeding on summons upon information – is there a “substantive matter” on foot in the proceeding upon which restraining orders as sought could sustain – whether it was an appropriate originating process to proceed under private prosecution when the matter concerns an allegation of purportedly serious fundamental issue of ‘ownership’ –

Practice & Procedure – whether restraining orders previously granted ex- parte and in order should extend beyond the next return date – interim restraining orders can not subsist in vacuum but upon a substantive cause of action already on foot – the ‘balance of convenience’ does not favour the Applicant in having the ex parte restraining orders extended beyond the next return date – the various ex parte restraining orders granted on 12/12/05 should discharge forthwith.

Cases Cited
Rimbink Pato -vs- Anthony Manjin & Ors [1999] PNGLR 6

HELD:

(1) There being no ‘Substantive matter’ presently on foot upon which iterim restraining orders could subsist, the ex parte restraining orders issued on 12 December 2005 should not extend beyond the next return date.

(2) And further, the ‘Balance of Convenience’ does not favour the informant in having the said restraining orders extended beyond their return date but to discharge forthwith.

References

Counsel
Ms Wendy Dogura of Counsel of Manu & Associates, Lawyers, For the Complainant
Mr Robert Mugarenang of Counsel of MPA Legal Services Unit For the Defendants

20 December 2005

REASONS FOR RULING

C Inkisopo: (On 20 December, 2005, I delivered my ruling in this matter verbally with an undertaking to have it reduced down in to writing and this I now do so)

2. This is an application by Kensi Mainu (Informant) by way of a Notice of Motion seeking to extend certain ex parte restraining orders he obtained against the Defendants on 12 December, 2005 made returnable on 20 December, 2005. The Notice of Motion dated 12 December, 2005 itemizes specific relieves which are as follows;-

1. A certain restraining order taken out by the Defendants against him (Complainant) under the proceeding entitled DCPP 251/05 be set aside,
   
2. Trukai Industries Ltd be restrained from releasing the payment cheque for cows sold by the Defendants pending the outcome of the “substantive matter”,
   
3. The Defendants be restrained from further selling of cows from the Migiata cattle Project until the “substantive matter” is dealt with.
   

3. On the 12 of December, 2005 the matter was heard in chambers wherein I granted orders the dual restraining orders against the Trukai Industries Ltd and the Defendants respectively whilst reserving the issue of setting aside the exparte restraining order against the Applicant issued on behalf of the Defendants in a proceeding entitled DCPP 251/05.

4. I granted the orders made returnable on 20 December, 2005 and for notice to be served on the Defendants to attend on 20 December, 2005 and be heard.

5. On 20 December, 2005 the matter came on for mention/hearing where Counsel for the Defendants, Mr. Mugarenang of the Morobe Provincial Administration Legal Services Unit made appearance for the Defendants whilst Ms. Wendy Dogura of counsel of Manu & Associates Lawyers did for the Complainant/Applicant.

6. Ms. Dogura for the Applicant moved her client’s motion relying on her own affidavit dated 12 Deccmber, 2005 and also that of Mr. Saks Megao dated 05 December, 2005. An additional one sworn to and filed by Kensi Mainu the Applicant himself dated 06 December, 2005 was also relied upon.

7. As I gather from Counsel’s oral presentation, the number of relieves her client sought were interim restraining orders primarily restraining the Defendants and Trukai Industries Ltd from performing certain acts until the “substantive matter” has been dealt with. Relieves in the nature of interlocutory restraining orders are normally obtained to maintain the original status quo pending the final determination and resolution of a ‘substantive cause of action’ already on foot. Ms. Dogura submits that the proceeding numbered DCPP 471/04 is the actual originating process whereby the actual substantive cause of the matter has been spelt out – which is one of dispute as to “ownership” of the Magieta Cattle Project. Accordingly, as she argues, as the issue of ownership has yet to be decided, the Defendants should be restrained from further dealing with the cows of the project by way of sale to Trukai Industries Ltd and Trukai Industries Ltd should in turn be restrained from releasing the payment cheque to the Defendants for the cows sold to it. She further contends that if the payments were made or released with the primary issue of “ownership” of the project left up in the air, it will be “detrimental” to the village-based shareholders – to use Applicant’s Counsel’s words. The orders of 12 December, 2005 must therefore be extended beyond today’s return date as the primary issue of ownership is yet to be dealt with. She added further that the restraining order obtained against her client under proceeding titled DCPP 251/05 be set aside on the strength of her client’s affidavit.

8. Mr. Mugarenang of Counsel for the Defendants countered the submission by Applicant’s Counsel by arguing that the orders of the Court of 12 December, 2005 should not extend beyond today. He cites the following as reasons for his such submissions;-

(a) That there is no such thing as a ‘substantive matter’ on foot in this case to extend the said restraining order beyond today.

(b) The restraining order against Trukai Industries Ltd was inappropriate in that it was not a party to the substantive proceeding (if any) to be made a party, much less, to be issued with a restraining order.

(c) The alleged proceeding founding the so-called “substantive matter” was talking about something else than a tussle over the “ownership” of the Magieta Cattle Project.

(d) The Applicant in pursuing this action is doing so in his own personal capacity as opposed to being in a representative capacity in the face of evidence disclosing facts that suggest the project to being co-owned by villages of Gitukea and Paukenga in the Sialum area of the Tewae/Siassi District of the Morobe Province.

Hence, the question of locus standi of the Applicant was rendered an issue that needed a determination on.

9. On those bases, Counsel for the Defendant contends that the said two (2) restraining orders issued on 12 December, 2005 should discharge forthwith and that they should not extend beyond today.

Applicant’s Counsel in reply says;-

(a) Though not specifically showing it to being so, she maintains that the claim in DCPP 471/04 is one of “ownership dispute” of the cattle project and she attempts to refer to the Court of that and similar conception by another District Court Magistrate Mr. M. Ipang at which the Court reminded Counsel that the Court is not bound to accept an other Court’s views on that issue but to make its own determinations based on evidentiary matter immediately before it. She next submitted that the proceeding entitled DCPP 471/04 was drawn up by the Applicant himself who is a villager not well versed with the legal processes and their niceties. On the issue of Applicant’s capacity (locus standi), she says that Applicant was doing so for the good of the two (2) villages whose members are the sole shareholders of the cattle project, the subject of this proceeding.

On the issue of Trukai Industries Ltd not being a party hence no order that binds it should be issued against it, Ms. Dogura submits that even though it was not a party it is directly or indirectly involved as an interested party in this matter as it was the one to be paying for the cows sold to it from the Project in issue.

Findings

1. I find that there is no precise unambiguous cause of action on foot that addresses the issue of a dispute over the ownership of the Magieta Cattle project. The proceeding entitled DCPP 471/04 is to my mind clearly addressing a different issue of, as I gather, a dispute over the executive management post of the project that has been allegedly illegally dealing with the cows by way of sale to Trukai Industries Ltd. Nowhere in that proceeding does it talk about a dispute as to ‘ownership of the project’. It is not within this Court’s ambit of duty to read into the originating process a purported claim that is just not pleaded there. What is in the originating process in DCPP 471/04 as a claim duly pleaded are: (as quoted verbatim)
   

“Each a illegally claiming to be the executive of the Migieta Cattle Project at Sialum Tewae/Siassi District Morobe Province and has been selling and shipping and never produce financial reports when ask by shareholders of the said project... and sought to (1) restrain each of the Defendants from selling or shipping any more cows from the said Migiata Cattle Project, (2) restrain each of the Defendants from further killing and selling of live cows from the said project at black market (3) and any other orders the Court deems meet”.

It is just that and the Court can do nothing thereon but to make determinations on that which is already pleaded there in the originating process.

10. Accordingly, I am not satisfied that there is or are any substantive causes of action on foot to warrant the extension of the various restraining orders granted on 12 December, 2005 beyond today’s return date. It would therefore be inappropriate to permit the restraining order of 12 December, 2005 to extend beyond today. To my mind the balance of convenience does favour discharging the restraining orders issued on 12 December, 2005 than to extend them beyond today.

11. This line of reasoning effectively puts an end to the several restraining orders issued against the Defendants and Trukai Industries Ltd. I am fortified in that conclusion by the fact that, apart from disclosing no ‘substantive matter’ on foot, the originating process talks about something totally different from what the Applicant attempts to have us believe – that there is a ‘project ownership dispute’ in existence when in fact there is really none. Furthermore, Applicant seems to this Court to be pushing this matter by naming himself “Kensi Mainu” as Informant in his personal capacity and not in a ‘Representative’ capacity. The question that quickly comes to mind is as to whose interests he represents or otherwise whose interests does he seek to protect and promote? If he was alleging that the executives are managing the project against the interests of the shareholders, there are proper avenues that this issue can be pursued through such avenues as proceeding under the Companies Act (if the project I issue is under an incorporated entity etc.) or other relevant legislation and not under these purported proceedings by way of a simple private prosecution such as was done in this instant case. Once those process are in motion can interim injunctive relieves can be sought and granted as a corollary matter of course.

12. Applicant’s pursuit of this matter in his personal capacity has been a cause for concern to this Court as the implications are far-reaching, a matter I do not intend to delve into.

13. Applicant in my view has not made out a case to my satisfaction on the balance of probabilities. And further, the balance of convenience does not favour the Applicant in having the two (2) restraining orders granted on 12 December, 2005 extended beyond today – they should therefore be discharged forthwith and I so order.

14. The restraining order taken out by the Defendants against the Applicant under DCPP No 251/05 is set aside forthwith.

15. This matter concerns a large-scale commercial project involving a large number of village-based shareholders. The issues concerned seem to me to be an issue of “management” which is such that it should be properly brought before the Court either in this or the National Court and be dealt with appropriately all that and related issues therein involved. It seems grossly inappropriate to be instituting proceedings of a matter that involves a large-scale commercial project under the process of a simple private prosecution under the District Courts Act, 1963.

I therefore order as follows;-

(a) Restraining order of 12 December, 20055 restraining the Trukai Industries Ltd from releasing the cheque payment for cows sold to it by the Defendants is discharged forthwith and should not extend beyond or past today (20 December, 2005).

(b) Similarly, the restraining order against the Defendants from further dealing with the cows from Magieta Cattle Project should discharge forthwith and should not extend beyond today (20 December, 2005).

(c) The restraining order taken out against the Applicant under proceeding entitled DC PP No 251/05 is set aside forthwith.

(d) Each party bears his/their own costs of prosecuting and/or defending this Application.

Ms Wendy Dogura For Complainant Manu & Associates
Mr Robert Mugarenang For Dependants MPA Legal Services Unit