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Eki v Nealy [2018] PGNC 403; N7500 (21 September 2018)

N7500

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS (HR) NO. 20 OF 2018


MIKE EKI for and on behalf of himself, his family and twenty three (23) others with their respective families, whose names appear in the schedule attached
Plaintiffs


V


GERANG NEALY, Senior Field Supervisor, Stettin Bay Lumber Company Limited
First defendant


AND
MICHAEL NAWAN, Field Supervisor, Stettin Bay Lumber Company Limited
Second Defendant


AND
IGAT AKUM, Field Supervisor, Stettin Bay Lumber Company Limited
Third Defendant


AND
JOE LASO, Supervisor Planning & Monitoring, Stettin Bay Lumber Company Limited
Fourth Defendant


AND
TAI KUMBI, Field Officer Planning & Monitoring, Stettin Bay Lumber Company Limited
Fifth Defendant


AND
JIMMY KASAO, Field Officer Planning & Monitoring, Stettin Bay Lumber Company Limited
Sixth Defendant


AND
BENZAMIN ANANIAS, Driver Planning & Monitoring, Stettin Bay Lumber Company Limited
Seventh Defendant
AND
JOHN WAKORE, Security Manager, Stettin Bay Lumber Company Limited
Eighth Defendant


AND
PAUL KARONG, Security Guard, Stettin Bay Lumber Company Limited
Ninth Defendant


AND
MATHEW GABRIEL, Security Guard, Stettin Bay Lumber Company Limited
Tenth Defendant


AND
PETER YIU, General Manager, Stettin Bay Lumber Company Limited
Eleventh Defendant


AND
STETTIN BAY LUMBER COMPANY LIMITED
Twelfth Defendant


AND
PURING KASI
Thirteenth Defendant


AND
DANSI DATIWA
Fourteenth Defendant


AND
SAMUEL NUSALEM
Fifteeth Defendant


Kimbe: Miviri AJ
2018: 21st September


PRACTISE & PROCEEDURE – writ of summons – amended notice of motion – Order 12 r 01 – general relief – Order 4 r 46 (a) – setting aside District Court orders – staying order evicting plaintiffs – staying warrant of execution order – injunction – arguable case – protection of property – actionable wrong –damages not adequate remedy – S155 (3) (b) 155 (4) Constitution – motion granted.


Cases cited:

Chief Collector of Taxes v Bougainville Copper Limited [2007] PGSC 1; SC853 Craftworks Niugini Pty Ltd v Allan Mott [1997] PGSC 6; SC525

Fagon v Negiso Distributors Pty Ltd [1999] PGNC 50; N1900

Melchior Kasap & Peter Yama v The Electoral Commission [1988 - 89] PNGLR 318

Tali v Malpo, Commander of Papua New Guinea Defence Force [2001] PGNC 154; N2050

The State v Avia Ahi (No. 1) (1981) PNGLR 81

The State v Saki [1980] PNGLR 173

The State v Danny Sunu [1984] PNGLR 305
Counsel:


B Takua, for Plaintiffs

P Mokae, for Defendants

RULING
21th September, 2018


  1. MIVIRI, AJ: This is the Ruling of the Court pursuant to an Amended Notice of Motion filed by the Plaintiffs 30th August, 2018 whereby the following orders are sought:
  2. The Motion is supported by the “Affidavit in Support” of Mike Eki “Plaintiff “in the proceedings who sues on behalf of himself, his family and twenty four (24) others with their respective families.
  3. Terms (1) and (2) of the amended Notice of Motion of the Plaintiffs have been met hence this ruling and therefore no utility is served to maintain. They are discharged.
  4. The remaining other terms all will be the subject of this ruling which are set out below starting with the facts. It is also preliminary that service upon the defendants and their lawyers in accordance with the direction of the court made on Friday 14th September 2018 was complied with by the Plaintiffs and Affidavit of Service dated the 20th September 2018 by one Fidelis Gabe in this respect is on file as Court Document 6. Attached to it are annexure “A” Letter addressed to Stettin Bay Lumber Company Limited dated the 14th September 2018 advising hearing on 21st September 2018. Annexure “B” is receipt acknowledgment of the served documents dated the 19th September 2018 Time is 08.10am. Similar acknowledgements of receipts of all documents are on file a total of three altogether consistent with the defendants. There is no basis to not hear the application as it has been duly served as proved by the court record. The Court on that basis now hears the Motion and the Ruling is following.

Facts


  1. These are the facts in the matter established and undisputed by both sides of the dispute in this matter. The Plaintiffs have been employed by the twelfth Defendant “Company” since 1991 on contractual basis until 2008 when it permanently employed them. And allowed them to settle on its land Portion 78 Milinch Megigi Fourmil Talasea, WNBP, State lease Volume 3 Folio 154, which they cleared, developed and built at their own costs residences and lived on as permanent employees of the Twelfth Defendant Company. But since March 2015 after 8 years working for the Company they were laid off.

Disputed Facts


  1. The Defendants dispute that Plaintiffs have been paid their entitlements but of their volition remain on Portion 78 Milinch Megigi Fourmil Talasea, WNBP, State lease Volume 3 Folio 154, “the land” and deny that Thirteenth, Fourteenth and Fifteenth Defendants were acting on the instruction of the Twelfth Defendant when they came in drunk armed and did what the Plaintiffs say they did. They were not abandoned without their final entitlements and repatriation fees for resettlement back to their home Provinces or elsewhere.
  2. On the 1st and the 2nd September, 2015 between 8.00am and 3.30pm Second to Tenth Defendants and Thirteenth to Fifteenth Defendants whilst armed with police issued firearms directed by First Defendant came to the residence of the Plaintiffs without Court Orders or Warrant or prior notice forcefully with violence threats raided and destroyed all 24 houses and personal effects which is evidenced by photographs as Annexure “C”. There were no Eviction Notices by Twelfth Defendant. The Thirteenth, Fourteenth and Fifteenth Defendants were alcoholically effected and drunk and were off duty police officers armed with high powered AR 15 rifles who were given beer by First Defendant and engaged to enforce the destructive exercise against them.
  3. That there was a valid eviction order on the basis of which they acted to move the Plaintiffs off their land not without. Further Thirteenth, Fourteenth and Fifteenth Defendants were not directed nor where they engaged by the Twelfth defendant to behave as they did. Any destruction to property was their doing and not the responsibility of the Twelfth Defendant.

Analysis of Evidence


  1. The Thirteenth, Fourteenth and Fifteenth Defendants are or were off duty policemen and could not have been where the Plaintiffs were without direction or control to in particular to find the land. And would not have ventured into the subject land where the Plaintiffs were by coincidence or good fortune particularly whilst armed with police issued AR 15 rifles. And Policeman as they were would not necessarily have the means to have liquor drunk and acting as they did whilst on duty.
  2. It is more than probable that they were engaged by the Twelfth Defendant because it is he who knew where the land was and the situation prevailing in respect of that land particularly with the ejectment of the Plaintiffs off that land of his. It is safe to make this assessment because that has led to the action now filed and the substantive proceedings that is on foot upon the basis of which this proceeding are footed and sought. It makes sense because in these proceedings the Defendants let alone the Twelfth Defendant have not filed evidence and material that indeed the Plaintiffs have been paid their dues for working on the land. And by which fact they are illegally on the subject land despite that fact. Mere assertions that they have been paid without evidence to that fact takes the Defendants nowhere in the matter.
  3. And Thirteenth, Fourteenth and Fifteenth Defendants are acting as they do in the presence and sight of the Twelfth Defendant and the Defendants all named on their land not of the Thirteenth, Fourteenth and Fifteenth Defendants land. They would not be there on their own accord unless directed by the Twelfth Defendants and all Defendants comprising the Twelfth Defendant its servants and agents. That is why and it is more than probable that is the reason why they are there and acting as they do there. It is within common sense and logic that that is the situation prevailing there in their engagement by design and operative there-from.

Findings of Fact


  1. I find as a fact that on the 1st and the 2nd September 2015 between 8.00am and 3.30pm Second to Tenth Defendants and Thirteenth to Fifteenth Defendants whilst armed with police issued firearms led by the First Defendant came to the residence of the Plaintiffs without Court Orders or Warrant or prior notice forcefully with violence and threats raided and destroyed all 24 houses and personal effects which is evidenced by photographs as annexure “C”. There were no Eviction Notices by Twelfth Defendant. The Thirteenth Fourteenth and Fifteenth Defendants were alcoholically effected and drunk and were off duty Police Officers armed with high powered AR 15 rifles who were given beer by the first defendant and engaged to enforce the destructive exercise against them.
  2. I find as a fact that by the fact that they were off duty they were not acting in their capacity as policemen. Because to do so would mean officially been tasked to instruction down from the Police Station Commander or the Provincial Police Commander. There is no material in support in this regard. It is therefore clear that their actions were illegal and unlawful and not official. They were in the company and presence taking front of a matter with the defendants for their cause not State or Police cause. They acted in unison with all the Defendants in this matter and therefore are tied down together in law.
  3. And I further find as a fact that to rely on the court order annexure “F” of the Affidavit of Mike Eki as the basis including the warrant to members of the Police Force will not hold because the entry were not by policemen and were not officially from Police in carrying out court orders. Even then court orders do not entail damages as depicted by the photographs set out in annexure “C” of the affidavit of Mike Eki. That cannot be enforcement execution of orders of court. It depicts illegality unconstitutionality and breaches of law.
  4. On the basis of these facts the following are clear in law that the cause of action set in motion by the Writ of Summons filed has very serious issues to be tried and must be allowed to follow that course to find justice and protection of the law in that matter. There are 24 persons whose rights in law hinge on this Writ of Summons pending. Damages will not be an adequate remedy given what is set out above. There must be proper process in law to settle the matter once and for all. To give effect to the District Court Orders now flawed in the light of all set out above will be contrary to the justice of the case. The balance of convenience therefore favours that the process of law started by the writ of summons follow its natural course to arrive at where justice is due. It favours the applicants more than the defendants given all set out above: Chief Collector of Taxes v Bougainville Copper Limited [2007] PGSC 1; SC853 (2 February 2007).
  5. This is analogous to the situation in Tali v Malpo, Commander of Papua New Guinea Defence Force [2001] PGNC 154; N2050 (8 March 2001) because there has been already destruction of the houses where the 24 plaintiffs are resident. It is necessary that the status quo is maintained in the course of the action instituted now in court. Because this would not be the same situation as in Craftworks Niugini Pty Ltd v Allan Mott [1997] PGSC 6; SC525 (27 June 1997) where the Supreme Court reverted the matter back to the National Court for assessment of damages. That is not the situation here. The action has been instituted and is pending. It is necessary to maintain the status quo to allow the process of law started in court by the writ to be completed. Plaintiffs be allowed to be where they are to remain on Portion 78 Milinch Megigi Fourmil Talasea, WNBP, State lease Volume 3 Folio 154 until settlement of the Writ now before the court.
  6. It means to give effect to the District Court Eviction Order of 1st September 2016, and the subsequent warrant of Execution Order dated the 7th August, 2017, in the proceedings DC No. 116 of 2016, be set aside forthwith, pending final determination of the substantive matter, pursuant to Order 12 Rule 1 of the National Court Rules 1983 and or Section 155(4) of the Constitution.
  7. The situation of the Plaintiffs cannot be likened to Fagon v Negiso Distributors Pty Ltd [1999] PGNC 50; N1900 (10 June 1999) where employment was properly terminated thus resort to Section 155 of the Constitution could not avail him. Here given the facts that have come out clear section 155 (3) (b) and section 155 (4) in my view can be brought in aid to provide dispositive powers to the National Court to either assume original jurisdiction of a cause that was statutory barred or as here where exceptional circumstances warranted. There are a long list of cases that evidence this very unique procedure as Avia Ahi v The State (No. 1) (1981) PNGLR 81, Saki v The State [1980] PNGLR 173, Danny Sunu v The State [1984] PNGLR 305, Melchior Kasap & Peter Yama v The Electoral Commission [1988 - 89] PNGLR 318, on sound legal grounds or where it was in the best interest of justice for appropriate orders to be made.
  8. And accordingly on the basis of these Defendants all including particularly the Twelfth Defendant/Respondent, its servants, agents, representatives or anyone acting under its direction or control be restraint forthwith, from ejecting and interfering in any way with the Plaintiffs from their current residence, at Portion 78, Milinch Megigi, Fourmil Talasea (Mopili Plantation) in West New Britain Province, State Lease Volume 3, Folio 154 (the land), pending the final determination of the substantive matter by this Court, pursuant to Order 12 Rule 1 of the National Court Rules 1983 and or Section 155 (4) of the Constitution.
  9. And further the Plaintiffs be allowed by all the Defendants and in particular the Twelfth Defendants/ Respondent to plant and harvest food crops on the land, for purpose of earning and sustaining their daily living, pending the final determination of the substantive matter by this Court, pursuant to Order 12 Rule 1 of the National Court Rules and or Section 155 (4) of the Constitution.
  10. As to all the Defendants and in particular the Twelfth Defendant/Respondent to provide logistic support to the Plaintiffs whenever the Plaintiffs need transport to and from their residence at the land for purposes of accessing health service, schools, and markets for selling of their crops pending the final determination of the substantive matter by this Court, pursuant to Order 12 Rule 1 of the National Court Rules and or Section 155 (4) of the Constitution no orders are made in that regard as that is the subject of the proceedings by writ before the court. Here the justice of the case calls that the status quo is maintained. If that was the maintenance of a service that the defendants including the Twelfth Defendant/Respondent did provide logistic support to the Plaintiffs whenever the Plaintiffs need transport to and from their residence at the land for purposes of accessing health service, schools, and markets for selling of their crops than that must be maintained but if it was not the case then it should not be imposed upon for now.

Issue


  1. Whether or not an injunction lies to preserve status quo pending substantive proceedings?

Ruling


  1. The basis both in fact and law have been made out by the Plaintiffs on the basis of the material filed to accord and accordingly the terms of the notice of motion they are seeking to maintain the Status quo and to allow the process instituted by writ to bring finality to the matter is granted except for term (6). All other terms from (1) to (5) are granted as motioned.
  2. There is sound legal grounds made out on the balance of probabilities including that it has been established that it is in the best interest of justice for appropriate orders to be made given that no material contrary has been led by the defendants all and accordingly in accordance with the exercise of powers and discretion under Section 155 (3) (b) and 155 (4) of the Constitution the Motion of the Plaintiffs are granted in the terms sought except for the qualification for term number (6).
  3. Costs will be in the course.

Orders Accordingly.

__________________________________________________________________

Public Solicitors: Lawyer for the Plaintiff Applicant

Justin Talopa Lawyers: Lawyer for the Defendant

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