Wanduma v Geng for and on behalf of the members of the Wunu Clan [2000] PGNC 3; N1963 (17 January 2000)

Unreported National Court Decisions

N1963

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP. NO. 10 OF 1999
BETWEEN: SASA WANDUMA
PLAINTIFF
AND: GIVISA GENG FOR AND ON BEHALF OF THE MEMBERS OF THE WUNU CLAN
FIRST RESPONDENT
AND: GEORGE MUTUWEREC, COUNCIL MANAGER, MUMENG LOCAL GOVERNMENT COUNCIL
SECOND RESPONDENT

Lae

Sakora J
12 March 1999
17 January 2000

PRACTICE AND PROCEDURE – Appeal – Application for interlocutory injunctive orders pending appeal – Compliance with District Court orders – No order to stay.

Counsel

Mr Ovia for the Applicant.

Mr Mukwesipu for the First Respondent.

Second Respondent in person.

17 January 2000

SAKORA J: This is an interlocutory application for interim injunctive orders pending the final hearing and determination of the substantive appeal in this matter. And the application is made pursuant to a Notice of Motion dated 9 and filed 17 February 1999.

Before embarking upon a consideration of this application, it is convenient that a brief background of the circumstances giving rise to the institution of the appeal should be outlined here. The first respondent in this appeal proceedings was the complainant in the District Court Summons to a person upon Complaint (No. PP 441 of 1998) claiming entitlement to certain monies from the present appellant and second respondent. The summons had been issued out of the Lae District Court on 2 November 1998. All parties had legal representation.

On 3 December 1998, the hearing date, the learned District Court magistrate, upon being satisfied that service of the summons on the two defendants had been duly effected, directed counsel to file and serve affidavits and written submissions on behalf of their respective clients. The case was then adjourned several times to enable parties to comply with the terms of the direction, more particularly in relation to their respective answering affidavits.

Eventually, on 28 December 1998 the Court handed down its decision on the claim, ordering both the first and second defendants (the present appellant and second respondent) to release the monies paid by a company named Highlands Products Pty Ltd and held by them to the Wunu Clan (on whose behalf the complainant/first respondent sued the defendants). It is this order of the District Court, Lae, that the appellant is aggrieved about. He filed his Notice of Appeal on 22 January 1999.

In the supporting affidavit filed by the appellant, it is contended that the appellant was to distribute the monies to the members of the Clan, and that to date the monies have been withheld by the second respondent, and, further that, as a direct consequence, he has been “kept in the dark” as to the present status of the monies. And one of the grounds of his appeal is that the learned magistrate erred in fact in holding that the complainant (the first respondent here) was a genuine representative of the Wunu Clan.

From the copy of the Agreement for Access to Water Source dated 17 October 1995 between the Wunu Clan and the Water Use Permit Holder, Highlands Products Pty Ltd (Annexure “A” to the affidavit of Givisa Geng sworn 10 March 1999; the appellant failed to annex this document to his affidavit as he deposed on 12 February 1999, para. 4), the company was to pay the Clan monies for the use of their water. It is the contention of the first respondent (para. 3 of his affidavit, supra) that, as a representative of the Clan, he was responsible for picking up the payments cheques from the company and distributing the proceeds to the members of the Clan.

The first respondent further contends that, in line with his representative capacity, and in direct compliance with the Court order in question (28 December 1998), he obtained the cheque in question from the second respondent on 7 January 1999. On the same day he cashed the cheque and distributed the monies to the members of the Wunu Clan. These contentions are made in an affidavit that he has filed in answer to the appellant’s supporting affidavits for 12 February 1999.

The appellant’s Notice of Motion seeks the following orders:

1. ـ T60; The Second Respondent be restrained from releasing royalty monies in the sum of K4,000 to the First Respondent and members therein (sip>

3. ҈ T60; That the FirstoRespt dent and Members of Wunu Clan therein (sic) be restrained from interfering or attempting to obtain monies from the Second Respondent and compromising this appeal.

4. &##160;;ټ Further,ther,ther, the the first Respondent and members of Wunu Clan therein (sic) be restrained from causing animosity and brea peace of the community against the appellant and his members of Wunu Clan or his family.

Mr Ovia of counsel for the appellant relies on the affidavit of the appellant sworn 12 February 1999 (supra). Learned counsel submits that the royalty monies, the subject of the District Court complaint, were in the end ordered to be released by the appellant and the second respondent. These monies had been received by the second respondent in his official capacity from the company, the water use permit holder.

There is a Notice of Appeal filed against the District Court decision, and, it is contended for the appellant, the appeal process will be either frustrated or pre-empted if the interim injunctive relief sought now are not granted. It is submitted that support for this comes from the provisions of Order 14 Rule 10 (3) of the National Court Rules (NCR). It is instructive to set out hereunder the entire Rule which is in the following terms:

10. &##160;ervation tion of prof property.

(1) &#1n proceedings concerningrning any property, or in proceedings in which any question mase asny property, the Court may make orders for the dehe detentitention, custody or preservation of the property.

(2) An order unde- Sub (ulemay) may authorise any person to enter any land or to do any other thing for the purpose of giving effect toorder

(60;&##160;; In proceedings concerning the right of any any partyparty to a to a fund fund, the, the Court may order that the fund be paid into Court or otherwise secured.

Mr Ovia submits further that the balance of convenience favours the preservation of the status quo. However, in view of the recent distribution of the monies, as evidenced by the contents of the affidavit of the first respondent (supra), the first relief under the Notice of Motion will now not be possible. Therefore, he urges the Court to make the alternative order sought, which is that the first respondent reimburse the monies to the second respondent, or that these be paid direct to the Court as envisaged by Order 14 Rule 10 (3) NCR (supra).

Mr Mukwesipu of counsel for the first respondent submits that this application should be dismissed. It is contended in this respect that there is an existing Agreement (Annexure “A” to the affidavit of Givisa Geng) between the parties concerned as to how the royalty payments for the water use should be distributed to the resource owners. And, it is argued, this agreement was endorsed by the decision of the District Court. Thus, the monies were duly released as ordered and distributed in pursuance of the order and the agreement.

The Second respondent appeared in person, thus without legal representation, and I heard him. He basically submitted that he had been ordered on 28 December 1998 by the District Court to pay the royalty monies he had in his custody. He duly complied with this order on 7 January 1999. It was not his duty, he suggests, to decide who to give monies to contrary to the terms of the agreement or in defiance of the Court order.

The second respondent makes the pertinent point that if he had withheld those monies in the way the appellant would want done, and in direct disobedience of the Court order, he would be in contempt of Court. He makes the point also that he had not been served with either the Notice of Appeal or the Notice of Motion for this application according to the requirements of the NCR.

The Court notes in this respect that the second respondent discharged his obligation under the District Court order some two weeks before the Notice of Appeal was filed. And he has, to this day, not been served with a copy of the Appeal notice. It is noted also that no Order for Stay has ever been taken out on the 28 December 1998 District Court order.

In the end result, it is the opinion of this Court that this application should be dismissed. I find no merit at all in this application. Contrary to the assertion of the applicant, the subject District Court order did not mention him as somebody who should be involved in the distribution of the monies to the individual members of the Wunu Clan. Rather, he and the second defendant were ordered to release the monies to the Clan pursuant to the 17 October 1995 agreement (Annexure “A” to the Givisa Geng affidavit).

In the subject District Court proceedings, the appellant was sued in his personal and individual capacity by the complainant/first respondent in his representative capacity. This must surely be acknowledged by the appellant himself, when he appeals in his individual capacity and the first respondent is accorded in the Notice of Appeal a representative capacity (see also: the documentation for the Notice of Motion).

Issue of balance of convenience and maintenance of the status quo do not, in my opinion, arise here.

The Court orders that this application be dismissed with costs.

Lawyers for the Applicant: Gamoga & Co. Lawyers

Lawyers for the First Respondent: Warner Shand Lawyers

Second Respondent in person