Kirokim v Henry [2018] PGSC 48; SC1705 (11 July 2018)

SC1705

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 47 of 2018

BETWEEN:
BIUL KIROKIM & JAFFET BIUL & THEIR FAMILIES
Appellants

AND:
ELLY HENRY & HER FAMILY
Respondents

Waigani: Dingake J
2018: 11^th July

PRACTICE AND PROCEDURE – Section 5 1 (a) and (b) of the Supreme Court Act – Applicants not demonstrated by evidence any prejudice that would befall them if application is refused – application refused.

Cases Cited:

American Cyanamid Co. v Ethicon Ltd [1975] UKHL 1; (1975) AC 396
Norah Mairi v Alkan Tololo (No 1) [1976] PNGLR 59
Mt. Hagen Airport Hotel Pty Ltd v Gibbes 1976 PNGLR 216
Samson Jubi & 3 Ors v Susan Edna Fraser & 2 Ors (2004) SC735
Airlines of PNG v Air Niugini Ltd (2010) N4047
PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC 1126

Counsel:

Mr. Gregory Manda, for the Appellants
Mr. Ricky Joseph, for the Respondents

11^th July, 2018

1. DINGAKE J: This is an application by the respondent, for an injunction to restrain the appellants from receiving all royalty and land lease payment from OK Tedi Mining Limited and/or Finalbin Landowners Royalty Trust and that all money payable as royalty and lease payment should be paid into the Supreme Court Trust Account, pending an appeal filed by the appellants in OS No. 920 of 2017; Biul Kirokim and Jaffet Biul & Their Families v. Elly Henry & Her Family
2. The applicants have abandoned prayer two (2) in the Notice of Motion, in which they sought an additional order that each party and their respective families are entitled to 25% of each royalty or royalty related payments, concerning this proceeding are paid into the Supreme Court Trust Account.
3. The application is made pursuant to Section 5(1) (a) and (b) of the Supreme Court Act or Section 155(4) of the Constitution and or the inherent jurisdiction of the Court.
4. The parties hereto are family members, belonging to the Kirokim family. The deponent to the applicants’ supporting affidavit avers that the appellant and her mother were biological children of Ariklaipnok Kirokim and Konip and Enespi, a land owner family in the Finalbin Area, Tabubil, Western Province.
5. The Kirokim family owns a portion of land which OK Tedi is located and are entitled to receive royalty payments and other related payments twice a year.
6. It would seem on the evidence filed of record, that there have been disagreements between the parties hereto on sharing the royalty and other related payments.
7. The dispute with respect to the distribution of payments ended up before the Tabubil District Court. On the 14^th of September, 2015, the District Court ordered that all royalty related payments, be distributed between the families as follows: the appellants to get 70% and the respondent to get 30%.
8. An attempt to set aside that Order by the appellants was not successful.
9. The applicants aver that the appellants distributed 30% of royalty and royalty related payments to the respondents in 2015, but failed to do so in 2016 and 2017.
10. After two (2) years of the decision of the District Court, the appellants appealed the said decision to the National Court and the following proceedings were filed:
    • CIA No. 130 of 2017; Biul Kirokom & Family v Elly Henry & Family and OS No. 920 of 2017; Biul Kirokim & Family v Elly Henry & Family (pending leave to file an Appeal out of time).
11. On the 17^th of April, 2018, the Court (per Gavara-Nanu J), upheld the respondent’s application filed on the 21^st of March, 2018, challenging the competency of the appellant’s appeal.
12. The appellants have appealed the decision of this Court (per Gavara-Nanu J), to the Supreme Court.
13. The appeal is pending.
14. Section 5 1 (a) and (b) of the Supreme Court Act provides as follows:
    • 5. Incidental directions and interim orders.
    • (1) Where an appeal is pending before the Supreme Court—
      • (a) a direction not involving the decision on the appeal; or
      • (b) an interim order to prevent prejudice to the claims of the parties; or
15. Section 5 1 (b) of the Supreme Court Act gives a single judge of the Supreme Court power to issue an interim order to prevent prejudice to the claims of the parties.
16. In order to obtain the relief sought the applicant has to satisfy three (3) elements, namely:
    1. That there is a serious question to be tried;
    2. The balance of convenience favours the grant of an injunction ; and
    100. Damage is not an appropriate remedy.

(American Cyanamid Co. v Ethicon Ltd [1975] UKHL 1; (1975) AC 396; Mairi v Alkon Tololo and Ors (No. 1) 1976 PNGLR 59; Mt. Hagen Airport Hotel Pty Ltd v Gibbes 1976 PNGLR 216; Samson Jubi v Susan Edna Fraser (2004)).

17. I am not inclined to grant the relief sought because the ultimate claim of the applicant involves unspecified but quantifiable amounts of money. It is the kind of case where damages would provide an adequate remedy to the applicants in due course. There is no evidence before me to suggest that the plaintiff may not be able to pay. There is evidence that plaintiff’s are paid regularly by OK Tedi Mining Company.
18. The authorities suggest that if damages would provide an adequate remedy, the interlocutory injunctive relief should ordinarily be refused (Airlines of PNG v Air Niugini Ltd (2010) N4047; PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC 1126 at 30).
19. It is a common approach of the Courts, other things being even, to preserve the status quo. I am inclined to do so, for two reasons: (i) There is no evidence on the amount of money involved and the prejudice that may be occasioned to the respondents by in effect freezing payment by granting the relief sought. (ii) The applicants have not demonstrated by evidence any hardship or prejudice which would befall them if the interim interlocutory relief is refused. By their own evidence the applicants did not get their share of the royalties and other related payment, in 2016 and 2017, and took no step to enforce what they consider their entitlement.
20. In the result, the application is without merit, and it is refused.

______________________________________________________________
Greg Manda Lawyers: Lawyer for the Appellant
Rageau Manua & Kikira Lawyers: Lawyer for the Respondent