Wamp v Nukundi [2022] PGNC 162; N9578 (13 April 2022)

N9578

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 168 0F 2021

JOHN WAMP, President of Muglamp Rural Local Level Government
First Plaintiff

RODNEY ROT KUR, President of Mala Kinjibi Rural Local Level Government
Second Plaintiff

JERRY ANIS, President for Kotna Rural Local Level Government
Third Plaintiff
V
HONOURABLE WESLEY NUKUNDI, Member for Dei Open & Minister for Immigration & Border Security
First Defendant

MR. BATAMAI TIPI, Administrator for Dei District
Second Defendant

CATHY RIPA, Treasurer for Dei District
Third Defendant

THE MANAGER, MT HAGEN BRANCH OF BANK SOUTH PACIFIC
Fourth Defendant

Mt. Hagen: Eliakim AJ
2022: 12^th & 13^th April

PRACTICE AND PROCEDURE – application to freeze the Dei District Development Authority bank accounts- Inherent jurisdiction of the court invoked under s.155(4) of the Constitution – Principles for interim injunction considered and in favor of grant - Application granted.

Cases Cited

PNG Ports Corporation Ltd -v- Starships (PNG) Ltd [2011] N4213
Peter Makeng & Ors -v- Timbers (PNG) Ltd & Ors [2008] N3317
Powi v. Southern Highlands Provincial Government (2006) SC844
Medaing -v- Ramu Nico Management (MCC) Ltd [2011] PGSC 44; SC1156
Cyanide Co. -v- Ethicon Ltd (1975) 1 A11 ER, 594
Ewasse Landowners Association Inc. -v- Hargy Oil Palm Ltd (2005) N2878
Robinson -v- National Airlines Commission [1983] PNGLR 276
Aloi v Aka [2020] N835
Ramu Nico management (MCC) Limited -v-Tarsie (2010) SC1075

Counsel

P. K. Kunai, for the Plaintiffs
C. Kup-Ogut, for the First, Second & Third Defendants
No Appearance for the Fourth Defendant

RULING

13^th April, 2022

1. ELIAKIM AJ: The plaintiffs moved on their Notice of Motion filed 21 May 2021 seeking an injunction to freeze the Dei District Development Authority bank accounts.
   

BRIEF FACTS

2. The plaintiffs, in their capacity as Presidents of the respective LLGs, have filed proceedings against the defendants, particularly the current sitting member Hon. Wesley Nukundi, claiming that he has failed to call and hold any Dei District Development Authority (‘DDA’) Board meetings since 2019, yet public funds are being expended by the Authority.
   
3. The court in its ruling on 01 April 2022 determined that the plaintiffs have standing to sue in their capacity as presidents and or heads of the respective LLGs of the Dei Open electorate. Further, that a reasonable cause of action has been disclosed and there was nothing frivolous and vexatious about their claim.
   
4. The plaintiffs are now seeking interim injunctive orders to freeze all Dei DDA Bank Accounts as the first, second and third defendants continue to expend public funds without the authority of the Dei DDA Board as is required under the DDA Act.
   

SUBMISSIONS

5. The plaintiffs rely on their sworn affidavits filed herein. They each have deposed in their affidavits that there has not been a single Dei DDA Board Meeting held in the last two years and yet, they are aware of Dei District funds being expended and without lawful board authority. Further, they insist that the first defendant must provide acquittals so that their people in the Dei District must know how he has been using their District funds without any DDA Board meetings and without involvement of the three (3) LLG Presidents who are voting members of the DDA Board.
   
6. Mr. Kup-Ogut for the defendants in relying on Batamai Tipi’s affidavit, submitted that there has been board meetings held but the evidence of such has not been provided in Mr. Tipi’s affidavit, but instead will be provided at trial proper. Mr. Tipi on the other hand has provided evidence that funds are being expanded and applied by the Dei DDA based on Financial Instructions from the Department of Finance.
   

Preliminary issue

7. The plaintiff invokes the court’s jurisdiction under s.155(4) of the Constitution, however encountered a typographical error in the Notice of Motion which had ‘s.15(4) of the Constitution’ instead of ‘s.155(4) of the Constitution.
   
8. Mr. Kup Ogut for the defendants objected arguing that the notice of motion was incompetent and lacking form as the reference to the court’s jurisdiction must be concise as per the requirements under Order 4 Rule 49(8) of the National Court Rules.
   
9. This was not a case where no reference was cited at all so as to keep the defendants and the court completely guessing as to the court’s jurisdiction, but is a case where the reference has been cited but missing a number to the relevant provision.
   
10. In my view however, the defendants in fact have not been prejudiced in any way, as they have in their written submissions filed on 12/04/22, made reference to s.155(4) of the Constitution in response to the plaintiff’s application. As such, there is no evidence that the defendants were misled or denied a fair hearing as a consequence of the typo graphical error of s.15(4) instead of s.155(4) of the Constitution.
    
11. In any event, a motion may not be dismissed solely because it has failed to state a concise statement of the court’s jurisdiction. As such, I granted leave to the plaintiff’s counsel to amend the typo graphical error and include the number ‘5’ so as to read ‘s.155(4)’ of the Constitution. (PNG Ports Corporation Ltd -v- Starships (PNG) Ltd [2011] N4213)
    

The Inherent Jurisdiction of the Court

12. Section 155(4) of the Constitution is not the source of primary jurisdictional power. (Peter Makeng & Ors -v- Timbers (PNG) Ltd & Ors [2008] N3317)
    
13. Section 155(4) confers jurisdiction on the court to issue facilitative orders in aid of enforcement of a primary right conferred by law, whether such right be conferred by statute or subordinate legislation enacted under the enabling statute. (SCR No.2 of 1981 [1982] PNGLR 150).
    
14. The Supreme Court in the case of Powi v. Southern Highlands Provincial Government (2006) SC844, (also adopted in the case of Medaing -v- Ramu Nico Management (MCC) Ltd [2011] PGSC 44; SC1156) in its view stated that there are about (5) five important features of Section 155 (4):
    
    • (i) “The provision vests the Supreme and National Court with two kinds of jurisdictional powers, namely orders in the nature of prerogative writs and the power to make "such other orders as are necessary to do justice in the particular circumstances of each case" before the Court;
    • (ii) Although the power is inherent, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution;
    • (iii) Where remedies are already provided for under other law, the provision does not apply;
    • (iv) The provision does not grant the Supreme Court power to set aside or review the decision of another Supreme Court regardless of number (sic) it is constituted, except as may be provided for by any law; and
    • (v) A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law."
      
15. Applying the features outlined in the Powi case above, the plaintiffs in order to benefit from the courts inherent jurisdiction under s.155(4) of the Constitution, has ‘an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law."
    
16. In my view, the plaintiffs have clearly demonstrated that their rights and that of their people in the Dei District have been affected by the purported non-compliance and lack of accountability and transparency by the first defendant in failing to call board meetings on important programs and projects of benefit to the district and its people.
    
17. Thus, the court exercises its inherent jurisdiction under s.155(4) of the Constitution in this regard.
    

PRINCIPLES FOR GRANTING OF INJUNCTION

18. The principles upon which a court may grant in interlocutory injunction are well established in our jurisdiction.
    
19. The leading authority in the grant of an interim injunction is the English case of American Cyanide Co. -v- Ethicon Ltd (1975) 1 A11 ER, 594. That case has been followed and applied in PNG on numerous occasions.
    
20. The principles were adopted and applied in the cases of Ewasse Landowners Association Inc. -v- Hargy Oil Palm Ltd (2005) N2878; Robinson -v- National Airlines Commission [1983] PNG LR 276 and lately in the case Aloi v Aka [2020] PGNC 135; N835.
    
    • (i) Whether there is a serious question to be tried or there is an arguable case;
    • (ii) Where does the balance of convenience lie?
    • (iii) Will damages be an adequate remedy if the injunction is not granted?
    • (iv) Whether the applicant has given an Undertaking as to Damages.
      
    • (i) Arguable Case
      
21. The thrust of the plaintiffs’ claim is that the first defendant has breached and continues to breach the DDA Act by failing to call a Board meeting for the last two years, yet public funds are being expended without the Board’s authority.
    
22. There is absolutely no evidence before me of any Dei DDA Board meetings authorizing any expenditures within the last two years.
    
23. Let me add at this juncture that certain breaches under the Public Finance Management Act (‘PFMA’) and the OLPLLG constitute offences, and non-compliance breaches in terms of disbursements and expenditure of public funds are quite serious with severe penalties.
    
24. I find therefore that there is a serious question to be tried.
    
    • (ii) Balance of Convenience
      
25. I apply and adopt the reasoning and questions raised by his honour Cannings J in the case Ewasse Landowners Association Incorporated v Hargy Oil Palms Ltd (2005) N2878:
    

“It has always struck me that that is a rather curious form of words, meaningful probably only to lawyers. So I will try and put that time-honored phrase into plain English. What is the best thing to do on an interim basis taking into account the conflicting interests? Where do the interests of justice lie? What will happen if an injunction is not granted? What will happen if an injunction is granted? Who will suffer the greatest inconvenience?”

26. The issue before the court is one of compliance in relation to the disbursement and expenditure of public funds in accordance with the relevant laws, particularly the PFMA, the OLPLLG and the DDA Act.
    
27. Section 112 of the OLPLLG establishes the provincial and district treasury. Sub section (1) states:
    

“There shall be established in a province an extended service of the National Department responsible for finance matters to be known as the Provincial and District Treasury, to be headed by a Provincial Treasurer.”

28. Sub section (5) provides; “The role of the Provincial and District Treasurer is to ensure that public moneys are managed and released strictly in accordance with law.”
    
29. The interest of justice and the balance of convenience therefore favors the grant of the interim injunction.
    
30. The parties can however discuss and consider any interim arrangements about essential expenditure, if any, but specifically for operational expenses of the Authority only.
    
    • (iii) Damages an adequate remedy
      
31. Under the unique circumstances of this particular case where the plaintiffs have no personal interest in the public funds siting in the Dei DDA accounts, I am of the view that damages will not be an adequate remedy if injunction is not granted.
    
    • (iv) Undertaking as to Damages
      
32. The defendants argued that the undertaking by the plaintiffs do not bear the LLG common seal and therefore have been personally made. Further, that the plaintiffs are incapable of meeting possible damages that may be incurred by the contractors and service providers should the defendants not be able to access the funds in the Dei DDA accounts.
    
33. Mr. Kunai submits that the plaintiffs do not have any personal interests in any funds held in the Dei DDA Account. Thus, this is not a claim by persons seeking to reap the benefits of the DSIP funds or any government grants that may be sitting in that account. Instead, they are trying to protect public funds from further expansion without proper lawful compliance processes under the OLPLLG and the DDA.
    
34. I find that the plaintiff’s claim is not without reason nor instituted for any wrongful purpose. Further, this claim is not about their personal interest but is about protecting the interest of a public institution.
    
35. I therefore adopt the views held by Davani J in the Ramu Nico management (MCC) Limited -v-Tarsie (2010) SC1075 in which she supported the trial judge summation that “if the court were to insist on Plaintiffs being adjudged financially capable of meeting all undertakings, that there is a danger the National Court may be closing its doors to the citizens of Papua New Guinea. That the court should instead be largely focused on the genuineness of a plaintiff’s motives”.
    
36. There is overwhelming evidence leaning towards granting the relief sought by the plaintiffs. Further, the DDA can sue and be sued under its corporate name pursuant to section 4 of the DDA Act. To do justice in this case, I therefore invoke the court’s inherent jurisdiction to include the Dei District Development Authority as the fifth defendant in this proceeding.
    
37. I therefore grant the plaintiffs’ application.
    

ORDERS

1. The plaintiffs’ Notice of Motion filed 12/05/21 is granted.
2. All accounts under the account name ‘Dei District Development Authority’ including account numbers 7007895068 and 1000878758, held at the Bank South Pacific, Mt Hagen Branch are immediately put on hold until a properly constituted Dei DDA Board Meeting is held and with further orders of this court.
3. The Dei District Development Authority is included as the Fifth Defendant in this proceeding.
4. Costs of today is reserved.
5. The matter is listed for Directions Hearing on 26 April 2022 at 9.30am.
6. Time shall be abridged to time of settlement to take place forthwith.

________________________________________________________________
Kunai & Co. Lawyers: Lawyers for the Plaintiffs
Kup & Co Lawyers: Lawyers for the Defendants