Digicel (PNG) Ltd v Numbasa [2011] PGDC 2; DC1036 (12 January 2011)

DC1036

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING
IN ITS CIVIL JURISDICTION]
DCCi 250 of 2010

BETWEEN

DIGICEL (PNG) LIMITED
Informant

AND

GEORGE NUMBASA
Defendant

Wewak: D Susame

2011: 12th January

CIVIL LAW – Proceedings under s. 209 District Courts Act – Courts powers to issue protective
Orders is found under s. 214 – Legality of East Sepik Digicel Towers
Landowners Association – Whether actions taken by the association in
Setting up road block and threatening to disrupt Digicel’s operations lawful-

Cases Cited:
Nil

Counsels:

Informant: Mr. John Munnull jr.
Defendant: No legal representation

27th January 2011

JUDGMENT

Susame; - Digicel (PNG) Limited commenced this proceeding on 4th November 2010 pursuant to section 209 of the District Courts Act ch. 40. The information filed with accompanying affidavits alleges defendant in February 2010 and thereafter declared and threatened to cause grievous bodily harm to the informant’s employees and properties at Wewak, East Sepik Province. The informant basically seeks orders under section 214 of District Courts Act (DCA).

2. While the substantive matter was on foot, the informant filed an urgent application seeking interim protection orders. The motion was heard exparte on 4th November 2010 and order in the interim was granted and served on the defendant.

3. When the parties appeared in court for first mention on 18th November 2010 it was brought to the attention of the court by complainant’s counsel there had been an alleged breach of the terms of the interim order issued. The case was further adjourned on defendant’s request to allow him to find a suitable lawyer to represent him. In granting the adjournment the court also issued directional orders for the defendant to file his defence through his lawyer with copy served to the informant to reply by 20th December 2010. Matter was then set down for hearing at 9 o’clock morning on 10th January 2011.

4. When the parties returned to court again on 10th January 2011 no defence had been filed. The only document defendant filed was a notice of intention to defend. Defendant appeared without a counsel and sought further adjournment. Court stood the matter over to 11th January 2011 on which date after hearing submission form parties court refused defendant’s request for adjournment and that the trial of the matter to proceed at 9 o’clock morning on 12th January 2011.

5. The court preferred to first deal with the substantive case. The case alleging breach of court orders is to be later heard and determined as and when all relevant documents are filed and registered by the complainant.

LAW

6. Sections 209 and 210 of the DCA are enabling provisions for persons, individual or corporate who feels threatened or who is a victim of violence and abuse to use to commence court proceedings to pray for appropriate protective orders. And the court’s power to issue protective orders or order to keep peace is found in section 214 of the Act which the counsel for the complainant has correctly referred to in his submission.

Section 214 reads;

“214. CASE TO BE DISMISSED, OR SURETY OF THE PEACE, ETC., REQUIRED.

After hearing the evidence relating to information under Section 209 or 210, the Court may–

(a) dismiss the case; or

(b) require the defendant immediately, or at some time to be specified by the Court, to enter into a recognizance, oral or in writing, with or without sureties, in such reasonable amount as the Court thinks fit, to keep the peace or be of good behaviour, as the case may be, for such time as it thinks fit, or in default–commit the defendant to a correctional institution or police lock-up for such time as the Court thinks fit, not exceeding six months, unless in the meantime the required recognizance is given.”

FACTS

7. The complainant’s case consists of sworn affidavits of several witnesses and other documentary evidence including various correspondences that flowed between the defendant and complainant and copies of newspaper cuttings. Defendant relies on his own oral testimony taken on oath in court and sworn statement of two witnesses. At the close of hearing of evidence the court has also heard arguments from the parties.

8. It is only appropriate to set out the facts of the whole case. The defendant holds himself out to be the chairman of East Sepik Digicel Towers Landowners Association (ESDTLA). The group was form when the complainant company started erecting towers on various traditional land following land usage agreements between the Digicel and land owning individuals and groups. The defendant is also a privy to an agreement with Digicel permitting Digicel to erect a tower on his traditional land. Some of the land owning individuals and groups including the defendant claimed there is “very poor landowner beneficiary package” by Digicel for the usage of their land. So they formed the association as a corporate body to fight for their interest. The group held various meetings and sent number of correspondence for Digicel to address and receive their grievances and often went to the media to voice their concerns.

9. But, Digicel’s position was made clear to the defendant and his group that it will not attend to their grievances firstly, because the association was not a registered corporation with the Registrar of Companies and illegally operating and it had no obligation to talk to the association. Secondly, the use of name Digicel for incorporation of the association is without the consent of Digicel which is in breach of Intellectual Property (trademark, copyright etc,) law. And thirdly, not all land owning groups and individuals were members of the group and Digicel will only hold talks with each individual or group that it had entered agreement with.

10. To their disappointment defendant and his group received no favourable response from Digicel. So in one of their meetings they resolved to set up road block and stop Digicel employees from accessing Digicel equipments and properties where towers were erected. This is evidenced by copies of letters and copies of newspaper articles used as court exhibits by the complainant. (Refer to letter dated 18th October 2010 marked ‘D’). Some of the grieving and frustrated landowners then set up barricades on or about 29th October 2010. Police had to intervene and remove the road blocks and forcefully dispersed people that were involved.

FINDINGS

11. There is no contention from the defendant against allegations complainant had raised. The defendant admits as a fact that the association is not registered as a legal entity. He also acknowledges the objection for use of the name ‘Digicel’ and considers registering the association under a different name when he solicits membership of all other landowners in the Province. The association at this stage does not have membership of all but few landowners in the Province defendant had solicited to form the association. So it cannot be true for defendant or his associates to say the association represents the interest of all landowners in the entire Province.

12. There is no doubt that the so called East Sepik Digicel Towers Landowners Association is not a registered legal entity. The association since its inception has been illegally and without the complainant’s consent using the complainant’s trademark name ‘Digicel’ to promote its interests through various modes of communication. The group until it becomes a legal entity cannot as a collective or corporate body function and demand Digicel to respond to its demands and grievances. There is no obligation for Digicel to do so simply because no such body or entity exists at law.

13. Having said the above however, it would be most unreasonable for Digicel to totally ignore the landowners concerns and not do anything about it. There are prevailing issues Digicel and each grieving land owning individuals and group who are privy to the land usage agreement with Digicel must diplomatically and mutually iron out. The management of Digicel Company must therefore create an avenue to address the issues that have been echoed by the aggrieved landowners to reach an amicable settlement.

13. The defendant does not deny the threats issued and actions taken to set up roadblocks on or about 29th October 2010. He however, stated the actions were taken to make Digicel respond to their outstanding demands. Nonetheless, the issuing of threats by the defendant to cause interruptions to Digicel’s communication network in the entire Province and the actions taken by defendant and his group to set up road blocks and threaten company employees and properties were unlawful.

14. I have considered all of the circumstances of the case. The defendant and his group as I perceive are very adamant with their cause. In my view there is real potential that defendant and his group will do further interruptions to Digicel’s operations in the Province. As a result thousands of users in the Province will be denied the use of this vital communication service provided by Digicel Company.

15. It is for the interest of both the Digicel Company and the public that the court will invoke its powers under s. 214 of DCA and issue appropriate orders to preserve peace and order.

16. The complainant had submitted for this Court to exercise its powers under section 214 (b) of the District Courts Act and grant these orders:

i. punish the defendant for being in contempt of court orders issued on 4th November 2010,

ii. the court excercise its powers under s. 214 (b) of DCA and issue appropriate orders to preserve peace,

iii. in the alternative interim order of 4th November 2010 be made permanent,

iv. defendant not to use the name ESDTLA to incite any trouble whatsoever against operations of Digicel in ESP.

v. the defendant pay costs on an indemnity basis.

17. Accordingly, the following orders are issued:

i. The defendant enters into a written recognisance with cash surety payment of K500.00 within 07 days and he is to keep peace for a period of twelve months.

ii. That the defendant is restraint from using the name East Sepik Digicel Towers Landowners Association and incite further trouble and disturbance against Digicel’s operations in East Sepik Province.

iii. That the defendant personally or through his agents is restraint from issuing threats of violence towards Digicel employees or cause destructions to properties owned by Digicel (PNG) Limited

iv. That the defendant is to report at Wewak Hill Court Registry 03rd February 2011 with receipt of payment of surety ordered and for signing and service of the sealed court order.

v. As regards costs, it is a matter of discretion so I order that cost be in the cause.

18. Finally, with respect to the breach of order or contempt of court allegation I leave that to the complainant’s counsel to file relevant documents and fix a date with the civil registry clerk for prosecution of the defendant.
_____________________________________________________________________________

Lawyers for the Complainant: By its employed lawyer
Lawyers for the Defendant: No lawyers representing