Finsch Road & Humade Victimised Settlers Association Inc. v Noma [2011] PGNC 289; N4408 (6 October 2011)

N4408

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 686 OF 2011

FINSCH ROAD & HUMADE VICTIMISED SETTLERS ASSOCIATION INC, JOE TIPAIJA (CHAIRMAN), JAMES HELA PORA (DEPUTY CHAIRMAN) & KONMAI KINDI (SECRETARY/PUBLIC OFFICER)
Plaintiffs

V

SIMON NOMA, TITI KANAI, ENESO KUNAI, JOHN YULA, NOKS IGINI, PINE BASA, ANDREW YAWALE, ROBERT MAGUR, SAKU TAKO & PAUL NELE
Defendants

Madang: Cannings J
2011: 23 September, 6 October

PRACTICE AND PROCEDURE – representative proceedings – whether judgment debt inures in favour of a group of plaintiffs or individual plaintiffs.

CONSTITUTIONAL LAW – human rights – Constitution of the Independent State of Papua New Guinea, Section 47: freedom of assembly and association – whether parties to court proceedings can be prevented from meeting and assembling to discuss court proceedings.

A group of 220 persons succeeded in representative proceedings brought in the National Court against the State arising from an unlawful squatter eviction exercise by the police, obtaining a total award of damages and interest of K2,924,531.98. The judgment of the Court awarded specific sums of damages and interest to each of the 220 plaintiffs. Soon after the judgment was handed down the two persons who had been the lead plaintiffs in those proceedings joined with other members of the committee that had been formed to manage the representative proceedings and formed an association, the objects of which included representing the views, interests and aspirations of the plaintiffs in the representative proceedings. The association then assumed the role of negotiating with the lawyers who had acted for the plaintiffs in the representative proceedings. The State paid to the plaintiffs' lawyers about 40% of the judgment due and undertook to pay the balance in due course. Differences subsequently arose amongst the plaintiffs as to disbursement of the proceeds of the judgment debt. Some of them (the defendants in the present proceedings) met and purported to elect a new executive committee of the association. The original executive committee then wrote to the law firm who had acted for the plaintiffs in the representative proceedings and terminated their services. This led to further disputation as the defendants in the present proceedings wished to retain the services of that firm. Members of the original executive committee then commenced the present proceedings seeking declarations that the association is a duly incorporated legal entity and that the election of the new executive committee is a nullity and an injunction that would restrain the defendants from convening meetings or gatherings to discuss issues relating to the squatter eviction exercise. At the trial of these proceedings the defendants said that they did not oppose the declarations sought by the plaintiffs, they only opposed the injunction.

Held:

(1) Declarations made in the terms proposed, as it was clear that the association was duly incorporated under the Associations Incorporation Act and that election of the defendants to the executive committee was conducted contrary to the terms of the constitution of the association.

(2) Injunction refused as granting it would interfere with the rights of the individual plaintiffs in the representative proceedings, as judgment creditors, to pursue, through a lawyer of their choice, satisfaction of the particular judgment debt that inured in their favour; and would interfere with their individual rights to assemble and associate and to belong or not to belong to any association under Constitution, Section 47.

(3) Costs of the proceedings awarded to the defendants.

Cases cited

The following cases are cited in the judgment:

Fuliva v Wagambie (2011) N4397
Mali v The State (2002) SC690
Pakui v The State (2006) N3001
Tipaiza v Yali (2008) N3472

ORIGINATING SUMMONS

This was a trial of an originating summons seeking declarations and an injunction.

Counsel

K Kindi, a plaintiff, for the plaintiffs
B W Meten, for the defendants

6 October, 2011

1. CANNINGS J: This is the Court's ruling on an application for declarations and an injunction that would restrain the defendants, Simon Noma and nine others, from convening meetings or gatherings to discuss issues relating to a squatter eviction exercise in Madang town in November 2002. The settlement from which hundreds of people were evicted by the police was known as Finsch Road-Humade. Houses and other property were burned and destroyed. This particular exercise is different to the one conducted in December 2003 in other parts of Madang town, which I recently ruled was conducted unlawfully (Fuliva v Wagambie (2011) N4397).

2. The November 2002 exercise led to representative proceedings, WS No 1555 of 2004, commenced in the National Court by two of the plaintiffs in the present proceedings, Joe Tipaija (then known as Joe Tipaiza) and James Hela Pora, for themselves and on behalf of 218 other former residents of the Finsch Road-Humade settlement. They obtained default judgment against the State in October 2007 and then, following a trial on assessment of damages, obtained in September 2008 a judgment awarding a total amount of damages and interest of K2,924,531.98 (Tipaiza v Yali (2008) N3472). The judgment awarded each of the 220 plaintiffs a particular amount of damages and interest, the precise sums being set out in a schedule that formed part of the formal order of the court. For example the plaintiff with the smallest claim, Sandy Joe, was awarded damages of K310.00 + interest of K143.84, a total sum of K453.84; the plaintiff with the biggest claim, Joe Tipaiza, was awarded damages of K402,090.00 + interest of K186,569.76, a total sum of K588,659.76.

3. In November 2008, the two persons who had been the lead plaintiffs in WS No 1555 of 2004, Joe Tipaiza and James Hela Pora, joined with other members of the committee that had been formed to manage those proceedings and formed an association, which was incorporated under the Associations Incorporation Act, called the Finsch Road Humade Victimised Settlers Association Inc. Its objects include 'representing the views, interests and aspirations of all victimised and disadvantaged former residents of Finsch Road and Humade settlements within the township of Madang', and appear broad enough to cover representing the interests of the plaintiffs in WS No 1555 of 2004.

4. The Association then assumed the role of negotiating with the lawyers who had acted for the plaintiffs in the representative proceedings, Kunai & Co Lawyers. The State was slow in satisfying the judgment debt. It appears that the first instalment of K1,250,000.00, being about 40% of the judgment debt, was paid into the trust account of Kunai & Co Lawyers in early 2011 and that the State undertook to pay the balance in due course. Differences subsequently arose amongst the plaintiffs in WS No 1555 of 2004 as to disbursement of the proceeds of the judgment debt. Some of them (the defendants in the present proceedings, led by Simon Noma) met and purported to elect a new executive committee of the association. Three members of the original executive committee of the Association, Messrs Tipaija, Pora and Kindi, then wrote on 19 July 2011 to Kunai & Co Lawyers and terminated their services and withdrew instructions to act on behalf of the plaintiffs in WS No 1555 of 2004. This led to further disputation as Mr Noma and his colleagues wished to retain the services of Kunai & Co Lawyers.

5. Members of the original executive committee then, on 16 August 2011, commenced the present proceedings, OS No 686 of 2011. They seek:

• declarations that the Association is a duly incorporated legal entity and that the election of the new executive committee is a nullity; and
  
• an injunction that would restrain the defendants from convening meetings or gatherings to discuss issues relating to the squatter eviction exercise of November 2002.
  

6. At the trial of these proceedings, which was conducted on 23 September 2011, the defendants said that they did not oppose the declarations sought by the plaintiffs, they only opposed the injunction. Out of that rather complex history two issues emerge. First, should the court make the declarations sought by the plaintiffs? Secondly, should an injunction be granted against the defendants?

1 SHOULD DECLARATIONS BE MADE?

7. The defendants say that they do not oppose the declarations as they do not dispute the legal status of the Association and do not wish to control its affairs or even be members of it. Mr Noma has given evidence that he and the other defendants were never voted in as members of the executive committee.

8. I have some difficulty accepting all of Mr Noma's evidence as it appears from the evidence given by the plaintiffs in the present proceedings that there was a series of meetings and gatherings in June this year attended by many of the plaintiffs in WS No 1555 of 2004, which were aimed at effecting changes in the executive committee of the Association. It is clear that the elections, to the extent that they took place, were not conducted in accordance with the constitution of the Association. I therefore consider that there is some utility in making the declarations sought by the plaintiffs, which will be set out formally in the order resolving these proceedings. This will remove any doubt that may exist as to the legal status of the Association or membership of its executive committee.

2 SHOULD AN INJUNCTION BE GRANTED?

9. The injunction sought by the plaintiffs is in these terms:

An order directing the ten defendants to cease from convening or attempting to convene any public meeting or gathering to discuss any ... issues relating to the Finsch Road & Humade Settlement Evictions 2002 unless ... it is done formally in subjection to the Association's constitution and also in close consultations with the Executive Committee.

10. The plaintiffs say that the injunction is necessary in the interests of justice as the Association was formed in 2008 to protect the interests of all plaintiffs in WS No 1555 of 2004 in pursuing the fruits of the judgment of September 2008 and all of the former residents of Finsch Road-Humade. They point out that they, Messrs Tipaija, Pora and Kindi, were instrumental in forming the committee soon after the eviction exercise in November 2002 that initiated WS No 1555 of 2004, that they and their fellow committee members worked hard organising the plaintiffs and instructing the lawyers, and that it took them four years to obtain justice. Three years have passed since the judgment was handed down and the State has yet to fully satisfy the judgment. It is important that the 220 plaintiffs stick together. It is not right for the defendants to be allowed to take over the affairs of the Association, as this will create confusion and dissension amongst the 220 plaintiffs in WS No 1555 of 2004.

11. I appreciate the plaintiffs' concerns and I consider that they have acted with proper motives in commencing the present proceedings. However, I am inclined to agree with the submissions of Mr Meten for the defendants that the present proceedings are unnecessary and that it is the plaintiffs themselves – Messrs Tipaija, Pora and Kindi – who have confused things by injecting the Association, which is a separate legal entity, into the negotiations with the State and Kunai & Co Lawyers concerning the satisfaction of the judgment debt and disbursement of the proceeds. As I remarked at the beginning of this judgment, the order of the Court in WS No 1555 of 2004 awarded each of the 220 plaintiffs a particular amount of damages and interest, in the following terms:

1. damages, payable by the fifth defendant to the plaintiffs, as prescribed by "damages awarded" in the Schedule;
   
2. interest payable by the fifth defendant to the plaintiffs, as prescribed by "interest awarded" in the Schedule;
   
3. being a total judgment sum for each plaintiff, as prescribed by "judgment sum" in the Schedule, to be paid within 30 days after the date of entry of this judgment;
   
4. costs of the proceedings shall be paid by the fifth defendant to the plaintiffs on a party-party basis, to be taxed if not agreed.
   

12. The effect of the order was that a judgment debt, expressed as a "judgment sum", in the amount set out in the Schedule, inured in favour of each of the 220 plaintiffs. In effect the Court gave 220 judgments, entitling each of the 220 plaintiffs to be paid the judgment sum displayed next to their name in the Schedule. Though WS No 1555 of 2004 was commenced as representative proceedings and each plaintiff authorised the lead plaintiffs, Mr Tipaiza and Mr Pora, to represent them, thus binding the other 218 plaintiffs to decisions made by Mr Tipaiza and Mr Pora as to the conduct of the proceedings (Mali v The State (2002) SC690), the terms of the judgment of September 2008 foreclosed that authority. The right to determine how each plaintiff's judgment debt was to be enforced thereupon vested in each individual plaintiff. Put simply it is none of the Association's business to intervene and decide how the plaintiffs should go about securing the proceeds of their judgment debts. This is sufficient reason to refuse the injunction sought by Messrs Tipaija, Pora and Kindi in the present proceedings: granting the injunction would interfere with the rights of the individual plaintiffs in WS No 1555 of 2004, as judgment creditors, to pursue, through a lawyer of their choice (a person's right to be represented by a lawyer of his or her choice being a constitutional right, see Pakui v The State (2006) N3001), satisfaction of the particular judgment debt that inured in their favour.

13. An injunction in the terms sought would be inappropriate for another reason: it would interfere with the rights of the defendants in the present proceedings and anybody else, including the plaintiffs in WS No 1555 of 2004, to assemble and associate and to belong or not to belong to any association. This is a human right conferred on every person in Papua New Guinea by Section 47 (freedom of assembly and association) of the Constitution which states:

Every person has the right peacefully to assemble and associate and to form or belong to, or not to belong to, political parties, industrial organizations or other associations, except to the extent that the exercise of that right is regulated or restricted by a law—

(a) that makes reasonable provision in respect of the registration of all or any associations; or

(b) that imposes reasonable restrictions on public office-holders; or

(c) that imposes restrictions on non-citizens; or

(d) that complies with Section 38 (general qualifications on qualified rights).

The injunction sought would serve no useful purpose and will be refused.

REMARKS

14. These proceedings have, in my view, been unnecessary and ill-conceived, and for that reason it is only fair that costs follow the event: the plaintiffs will pay the defendants' costs. I reiterate that the order in WS No 1555 of 2004 was very precise in its terms. I was the trial judge, so I am very familiar with how and why the order was framed in those terms. There should be nothing further to discuss or debate or argue about as to how much each plaintiff is to receive as his or her judgment sum. The plaintiffs had a law firm that represented them throughout the bulk of the proceedings and they would be well advised to leave the matter in the hands of that same firm to bring the proceedings to a fair, equitable and orderly conclusion. It appears that some of the plaintiffs in WS No 1555 of 2004 have attempted to negotiate directly with the office of Solicitor-General as to satisfaction of the judgment debt. This is improper behaviour. Plaintiffs who instruct lawyers to represent them should let their lawyers do their work without this form of interference. If a judgment debtor, such as the State in this case, is slow in satisfying a judgment debt, there are legal processes available which can be availed of to expedite the matter.

ORDER

(1) It is declared that Finsch Road Humade Victimised Settlers Association Inc is a duly incorporated legal entity that has its own constitution that governs its operations.

(2) It is declared that election of new executives for the Finsch Road Humade Victimised Settlers Association Inc was conducted unlawfully and is a nullity.

(3) The application for an injunction restraining the defendants from convening or attempting to convene public meetings or gatherings to discuss issues relating to the Finsch Road-Humade squatter eviction exercise in Madang town of November 2002, is refused.

(4) The plaintiffs shall pay the defendants' costs of these proceedings, on a party-party basis, to be taxed if not agreed.

(5) Time for entry of the order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Judgment accordingly.
____________________________

Lawyers for the Plaintiffs: Nil
Meten Lawyers: Lawyers for the Defendants