Home | Databases | WorldLII | Search | Feedback Papua New Guinea District Court

Kaumu v Ipu [2008] PGDC 79; DC785 (28 February 2008)

DC785

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN IT’S CIVIL JURISDICTION]

DCCi NO 2569 OF 2007

BETWEEN

ALOIS KAUMU
Complainant

AND

STANLEY IPU
First Defendant

AND

TAWEP KAMEN INVESTMENT LIMITED
Second Defendant

Port Moresby: C.BIDAR

2007: 21 December
2008: 28 February

District Court – Practice and Procedure – Application for interim restraining or injunctive orders - Applicant to disclose all relevant facts before grant of restraining orders – Principles- Serious or arguable case – Balance of convenience requirement – Matter not frivolous or vexatious.

Counsel

Complainant/Cross Respondent appeared in person
C. Raurela for Defendants/Cross applicants

RULING

BIDAR, PM: On 14 December 2007. The Complainant applied ex-parte and obtained interim restraining and other orders against the defendants. The orders were made returnable on the 18 December 2007, and were served on the defendants.

2. On the 18 December 2007, the defendants filed a cross-application through their lawyers seeking among other orders uplifting of orders of 14 December 2007, as well as seeking possession of the property described as section 24 allotment 3, Godina Street, Hohola, National Capital District pursuant to Section 6 of the Summary Ejectment Act.

3. The basis upon which the complaint obtained interim restraining orders is pleaded in his complaint, which is in these terms:

"The defendants did unlawfully and illegally collaborated with and directed members of Police force of Highway Patrol to illegally evict the complainant from the house located at section 24, allotment 3, Godina street, Hohola, National Capital District, without any lawful order of the court have threatened the use of Police to conduct an illegal search and eviction of the complainant and his family which the complainant will be severely affected by. The defendants owes the complainant in excess of Ten Thousand Kina (K10, 000.00) been awards made by this court for illegal rents collected by them which they have not complied with the settlement of which will entitle the defendant its property (particulars attached). The complainant being aggrieved prays the court for these orders.

(i) The first and second defendants pay compensation to the complainant as ordered by the court.

(ii) Judgment for damages for unnecessary mental stress, pain and suffering in the sum of Five Thousand Kina (K5, 000.00).

(iii) The direction issued by the first defendant to the members of the Police Highway Patrol or their agents or servants to illegally evict the complainant occupying the hose at Section 24 Allotment 3, Hohola, National Capital district be stayed forthwith until so ordered by a court of competent jurisdiction.

(iv) The defendant his agents or servants be restrained from taking any eviction action until and unless the order of the court to pay the monies due as ordered.

(v) An order that the first defendant reimburse the complainant’s rentals illegally/collected in the sum of Ten thousand Kina (K10, 000.00) as accrued to date.

(vi) An order that the defendants pay the complainant’s costs.

4. I deal first of all with the principles governing grant of restraining or injunctive relief. First of all there ought to be serious issues to deal with (an arguable case) and not frivolous or vexatious one. That damages are not an appropriate remedy and that the balance convenience favours grant of injunctive relief.

5. The complaint, which I reproduced, raises matters such as breaches of Constitutional rights as well as seeking damages/compensation. I understand that this court has made certain orders previously including payment of monies. That claim had been dealt with and if the orders have not been complied with, then the complainant should institute enforcement proceedings. I would accept the submission by Mr. Raurela that it is res judicata and the complainant is estopped from bringing the same claim the second time. In respect to allegations of breaches of Constitutional rights, appropriate proceedings should be filed against parties concerned including the State in the National Court.

6. Upon reading the affidavit, material and hearing counsel for the defendants and the complainant, the court is not satisfied that the complainant has pleaded an arguable case (or there are serious issues to be tried, so as to maintain the continuity of the interim restraining orders). In any event the claim for Police actions, lies in an action for damages against Police and the State before the court of competent jurisdiction. That the injunctive relief is not an appropriate relief in the circumstances.

7. In all the circumstances, I grant the defendants’ cross-motion, filed on 18 December 2007, I make the following orders:

(i) The ex parte restraining orders of this court dated 14 December 2007 is uplifted and set aside.

(ii) It follows that, there are no serious issues to be tried as pleaded in the complaint but in any event, complainant’s claim lies in damages against Police and the State. The entire proceedings should be dismissed.

(iii) In relation to claim for vacant possession of the property described as section 24, allotment 3, Hohola. National Capital District pursuant to section 6 of the Summary Ejectment Act, the court declines to grant that relief, which is a substantive one. The courts view is that, it is a subject of a separate ejectment proceedings which the second defendant might wish to pursue, under the provisions of Summary Ejectment Act.

(iv) In relation to claim for compensation, Complainant should institute enforcement proceedings against the second defendant.

(v) That the costs follow the event.

___________________________________________

Complainant/Cross Respondent in person
C. Raurela for Defendant/Cross applicants.