Mipo v Soso [2013] PGNC 69; N5071 (18 February 2013)

N5071

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO.53 OF 2013

BETWEEN

JOHN MIPO, GEORGE APA, NOKO KOKO
Plaintiff

v

HON. JULIE SOSO AKEKE
GOVERNOR, EASTERN HIGHLANDS PROVINCE
First Defendant

AND

GITENE. B. PUPUNESO
ACTING CABINET SECRETARY
Second Defendant

AND

SOLOMON TATO
ACTING PROVINCIAL ADMINISTRATOR
EASDTERN HIGHLANDS PROVINCIAL GOVERNMENT
Third Defendant

AND

EASTERN HIGHLANDS PROVINCIAL GOVERNMENT
Fourth Defendant

Goroka: Ipang AJ
2013: 18 February

INTERIM INJUNCTION – Plaintiffs who are in liquor sales business apply for interim injunctive restriction or ban of liquor sales in bottle shops, Community Clubs (Urban and Rural) Public Bars and Taverns pending substantive determination – Order 4 Rule 32 (b) & Order 12 Rule 1 of the National Court Rules.

Cases Cited

Public Employees Association of Papua New Guinea and Napolean Liosi v Public Service Commission [1988 – 89] PNGLR 585

Counsel

Mr. D.A. Umba, for the Plaintiffs
No appearances, for the Defendants

18th February, 2013

1. IPANG AJ: The plaintiffs filed an application on the 13th February, 2013 and move their application today seeking for the following orders:

1. Pursuant to Order 6 Rule 12 (1) of the National Court Rules leave be granted to the plaintiffs to dispense with the requirements of service of the Originating Summons, Notice of Motion, the Affidavits of the plaintiffs and the under taking as to damages.
   
2. Pursuant to Order 4 Rule 32 (b) and Order 12 Rule 1 of the National Court Rules an interim injunction is granted restraining the Defendants from imposing and enforcing the restriction or ban of liquor sale in bottle shops community clubs (urban and rural) public bars and taverns in the Eastern Highlands Province pending the final determination of the substantive issues.
   
3. All bottle shops and community clubs (urban and rural) public bars and taverns in the Eastern Highlands Province shall continue to trade as per their license trading hours conditions pending the final determination of the substantive issues.
   
4. Any such further or other orders as this Honourable Court deems fit.
   
2. In support of the application, plaintiffs rely on the following documents:
   
   1. The Originating Summons (OS) filed on the 13 February, 2013.
      
   2. The affidavits of John Mipo, Nick Koko and George Apa filed on the 13th February, 2013.
      
   3. The undertaking as to damages filed by John Mipo, Noko Koko and George Apa on the 13th February, 2013.
      
   4. Affidavit of service filed on the 18th February, 2012 for Section 5 Notice of Claims By and Against the State Act served on the State.
      
3. In his affidavit sworn on the 12th February, 2013 and filed on the 13th February, 2013 Plaintiff Noko Koko deposed that he is the owner of Club 52 and operates his club at Black Kona in Goroka. He produced a copy of his licence issued by the Fourth Defendant.
   
4. He said he was aware that sometime in October, 2012 the First Defendant made a decision to impose a ban or restriction on club owners and bottle shop owners from selling liquor for a period of 12 months. The plaintiff has produced to Court copy of the said decision signed by First and Second Defendants.
   
5. Koko said on the 8th January, 2013 the Third Defendant signed a Notice to All Liquior outlets advising that the restriction for sale and ban will come in to effect from 1st January, 2013 to 31st December, 2013. Copy of the Notice was produced and shown to Court. He said the restriction and the ban has not been enforced as yet and Koko hinted out that they could have been enforced as of 17 February, 2013.
   
6. He sought legal advice and was told that the decision by the Provincial Executive Council (PEC) and the documents signed by the First, Second and Third Defendants could be in breach of certain provisions of Liquor Control (Amendment) Act 1982. Thus, he says the legality of the decision and the documents signed are in question.
   
7. In his liquor business, Koko says he makes an average of K20, 000.00 weekly income. From this income he pays wages for his seven employees, land rentals, electricity, transport costs and other associated costs. He says he also support his family and himself.
   
8. The other plaintiff George Apa and John Mipo also filed their respective affidavits and deposed of facts similar to what Noko Koko has deposed to.
   

The Law

9. The law on interim injunction is settled in this jurisdiction. As it is stated, before an interim injunction can be granted, the applicant must satisfy the court:
   
   • (a) That there is a serious question to be determined; and
     
   • (b) That the balance of convenience favours the grant of the injunction (refer to Public Employees Association of Papua New Guinea and Napolean Liosi v Public Services Commission [1988 – 89] PNGLR 585)
     

Application of the Law to the Facts

Whether there is a serious question to be determined.

10. Mr. Umba of Counsel for the Plaintiffs submitted that Section 35 of the Liquor Control (Amendment) Act 1982, the power to suspend and restrict trading hours can be done so by Minister and not by the Defendants. Thus, raises the legality of the ban and restriction on sale of liquor. I am satisfied the plaintiffs have raised serious questions to be determined.
    

Whether balance of convenience lies in favour of granting the injuction.

11. The affidavits filed by the Plaintiffs, the Plaintiff Noko Koko deposed of his weekly income of K20, 000.00 made from liquor sales. He paid wages for his 7 employees, land rentals, electricity, transport costs, supports his family members and himself. He said if restriction is in place he would suffer for the next 10 months in 2013. Plaintiff John Mipo deposed the same in paragraphs 3 & 4 of his affidavit. George Apa deposed the same in paragraph 3 & 4 of his affidavit.
    
12. I am satisfied the plaintiffs have made out their case for the grant of interim injunction so accordingly, I grant the orders sought by the Plaintiffs in the following:
    
    1. Pursuant to Order 4 Rule 32 (b) and Order 12 Rule 1 of the National Court Rules an interim injunction is granted restraining the Defendants from imposing or enforcing the restriction or the ban of liquor sale in bottle shops, community clubs (Urban and Rural) public bars and taverns pending final determination of substantive issues.
       
    2. The matter shall return to Court on the 8th of March, 2013 at 9:30am for inter parte hearing on whether or not interim injunction should be extended or not.
       
    3. Plaintiffs shall serve all the Defendants sealed copies of all documents filed in this matter.
       
    4. Costs be in the cause.
       

____________________________________________
D.A. Umba Lawyers: Lawyers for the Plaintiffs
No Appearance for the Defendants