N4143

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO 543 OF 2010

BETWEEN

PASTOR JOHNSON PYAWA
for and on behalf of Simakin Tribesmen
Plaintiff

AND

CR ANDAKE NUNWA
for and on behalf of Kisan Tribesmen
First Defendant

AND

CR POLE YALUMA
for and on behalf of Kisan Lai Tribesmen
Second Defendant

AND

CR TAPU YAKA
for and on behalf of Lambe Kayagon Lai Tribesmen
Third Defendant

AND

CR KAIWA WAMBI
for and on behalf of Kale Tribesmen
Fourth Defendant

AND

CR IMBU WAPE
for and on behalf of Andaluni Tribesmen
Fifth Defendant

AND

CR LAI
for and on behalf of Kolo Taika Tribesmen
Sixth Defendant

AND

CR LALI
for and on behalf of Kolo Kungu Tribesmen
Seventh Defendant

Mount Hagen: Makail, J
2010: 08th & 11th October

PRACTICE & PROCEDURE - Injunctions - Quia timet injunctions - Principles of - Purpose of - Preservation of status quo - Tribal fight - Imminent danger to lives and property - Evidence of - Sufficiency of - Circumstances where quia timet injunctions may lie discussed - Application refused. 

Cases cited:

Papua New Guinea cases:

Robinson -v- National Airlines Commission [1983] PNGLR 476

Overseas cases:

Hubbard -v- Vosper [1972] 2 WLR 389

Other references & texts:

FH Lawson, Remedies of English Law, Butterworths (2nd ed 1980)

Counsel:

Plaintiff in person 
No appearance for Defendants

INTERLOCUTORY RULING

11th October, 2010

1. MAKAIL, J: This is an ex-parte application by the plaintiff who represents himself and members of the Simakin Tribe of Lumusa in the border of Western Highlands and Enga provinces seeking inter-alia, orders to restrain the defendants who are councilors of six wards in that area and their respective tribesmen from entering the Simakin tribe's customary land and provoking, threatening, intimidating or declaring war on his tribe until further order. He also seeks to restrain his own tribesmen from getting involved or joining the tribal fight until further order.

2. I heard his submissions on 8th October, 2010. I have also perused the documents he has filed in support of the application. They were:

1. Originating summons filed on 22nd September, 2010;

2. His affidavit in support sworn and filed on 22nd September, 2010;

3. Undertaking as to Damages filed on 22nd September, 2010; and

4. Authority to Act filed on 22nd September, 2010.

3. First, I accept that this is a representative action and he has authority from his tribesmen by virtue of the Authority to Act (supra) to represent them as the principal plaintiff in this action. Secondly, I accept that he has given an undertaking to pay any damages if the Court grants the interlocutory injunction and the action ultimately fails and the interlocutory injunction is discharged. Thirdly, I am satisfied based on his affidavit in support that there is some urgency in relation to the hearing of the application. This is because there is a tribal fight in that area and it poses potential danger to lives and property of the plaintiff's tribe. I grant leave to him to move the application ex-parte.

4. In his affidavit in support (supra) he deposes that he is a Pastor of the Baptist Church and a community leader in the Simakin tribe. The defendants are warring tribes. Presently, there is intensive tribal war involving these defendants. High powered guns and arms of mass destructions are being used in the tribal fight. The tribal fight has been going on for months and it is very difficult for the police to intervene and stop it. His tribe is not involved but is on the verge of getting involved or joining the tribal war.

5. This is because lately, the defendants threatened his tribe. They declared war on them. A week ago, a young man from his tribe was killed by the defendants. This has provoked his tribe to get involved. As a result, he and other tribal leaders of his tribe have urged their members to refrain from joining the tribal fight. They are to remain neutral and maintain peace and harmony in their village. They have signed a peace agreement resolving to refrain from participating in the tribal fight and declaring peace in their community. They have done that to protect their members' lives and properties including Government and Church run services in the area such as schools, health centre and stores.

6. During the hearing, I enquired if he had reported the alleged tribal fight to the police and he said no. He gave the reason that there was no point in reporting it to the police because police were powerless. He said there was an early tribal fight and the police were called in to stop it but they did nothing. This was why he did not report the latest one to the police.

7. A grant of an interlocutory injunction is discretionary. Its purpose is to prevent an act or event from occurring or from continuing. It is to maintain the status quo until the determination of the substantive dispute. In Robinson -v- National Airlines Commission [1983] PNGLR 476, Andrew, J observed that interlocutory injunctions are discretionary, and there are no real principles that can be laid down as to when they should or should not be granted except that they are granted in circumstances where it is "just or convenient" and what is "just and convenient" is dependent on the facts of each case. His Honour quoted a passage from Lord Denning MR in Hubbard -v- Vosper [1972] 2 WLR 389 at 396 which I find relevant here and respectfully quote:

"In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of claim but also the strength of the defence and then decide what is best to be done. Sometimes it is best to grant an injunction so as to maintain the status quo until the trial. At other times, it is best not to impose a restraint upon the defendant but leave him free to go ahead. The remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made the subject of strict rules."

8. In this case, it is noted that the plaintiff's main concern is about a tribal fight in the area where his tribe is located. The tribal fight has the potential of spilling over to his tribe because of the close proximity between his tribe's village and the villages of the defendants. Also, there is likelihood that his tribe would get involved in the tribal fight because the defendants had allegedly killed a young man from his tribe. These facts suggest that the plaintiff is indeed seeking a quia timet injunction. A quia timet injunction is granted to stop an act or event from happening in future and the Courts have been extremely reluctant to grant injunctions of this nature because no-one knows when the act or event will happen. The Courts require very strong evidence to show that it will occur if they do not act.

9. In the book by F H Lawson: Remedies of English Law, Butterworths (2nd ed 1980), p 189, the learned author discusses the circumstances upon which quia timet injunctions may be granted:

"As Lord Dunedin said (A-G for Dominion of Canada -v- Ritchie Contracting and Supplying Co Ltd [1919] AC 999 at 1005), 'no one can obtain a quia timet order by merely saying "Timeo"'. Certainly a court will not act upon a mere indication that the defendant is in a position to commit a tort against the plaintiff or what he is doing may end up in causing damage to him. As James LJ said (Salvin -v- North Brancepeth (1874) 9 Ch App 705 at 709), 'The court has, in dealing with questions of this kind, no right to take into account contingent, prospective or remote damage.' The court will assume that the defendant will not act unlawfully and will take all necessary precautions to avoid damage. This is all the more so if he assures the plaintiff of his good intentions. In Lord Eldon LC's words (Coffin-v- Coffin (1821) Jac 70 at 72 'The court never grants injunctions on the principle that they will do no harm to the defendant, if he does not intent to commit the act in question; but if there be no ground for the injunction, it will not support it'." 

10. The learned author went on to discuss at p 189:

"The difficulty in satisfying the court will obviously be greatest where the prospective causing of damage is the ground of the application. There must then, it has been said 'be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantial. I should almost say it must be proved that it will be irreparable.' It is also said that the violation of the plaintiff's right will be inevitable, which is interpreted as meaning 'a very great probability'. If, on the other hand, the defendant is clearly preparing or threatens to do something that is itself a violation of a right of the plaintiff, the plaintiff need not wait until he acts." (Emphasis mine).

11. From these discussions, I summarise the principles of quia timet injunctions as follows:

1. There must be proof of imminent danger to the plaintiff's rights.

2. There must be proof of prospective damage which is very substantial or irreparable.

3. The violation of the plaintiff's right is inevitable.

12. Given the factual background of this application, I will determine the application in accordance with the principles of quia timet injunctions as discussed above. I accept that, as a Pastor and community leader, he is concerned about the lives and welfare of the members of his tribe including properties and services provided by the Government and churches in the area. He has every right to be concern about the imminent danger posed by the tribal fight, and I commend him for that. He certainly has good intentions. That is no doubt about that. He is acting in good faith. His principal ground for the application is the prospective cause of damage that will arise if the Court does not intervene and grant the interlocutory injunction. The prospective cause of damage is the on going tribal fight amongst the defendants. 

13. I have considered the evidence in his affidavit in support (supra), and note that the tribal fight seems to be amongst the defendants. However, the plaintiff is worried that it might spill over anytime to his tribe and that may be disastrous. The case is premised on an event that is about to occur, and to succeed, the plaintiff must put forward a strong case. It must not be a speculative one. There must be sufficient evidence to support a strong case based on the principles set out above. There is no doubt in my mind that all persons have a right to live and be protected from unjust deprivation of property as guaranteed by sections 35 and 53 of the Constitution. Like all persons in this country, the plaintiff and his tribesmen have these rights, which must be protected.

14. The issue is, is there evidence establishing that the defendants will violate these rights and there is imminent danger to their lives and property. Further, is there evidence establishing that apprehended damage will be substantial or irreparable?

15. First, there is no evidence of the nature of interest or right that he seeks to protect apart from a general assertion at paragraph 6 of his affidavit that "[t]he Sumakin are very concerned about the welfare of their family members, properties, Government and Church Services…….." In my view, this evidence is vague and lacks particulars in so far as proving the right or interest he seeks to protect. He did not set out the nature of property that is likely to be destroyed by the defendants, like for example, food gardens, houses, coffee gardens, school buildings and health centre. In my view, his evidence is vague and lacks particulars. Secondly although he said in submissions that he is worried that the defendants might destroy schools and a health centre run by the Government and the church, in my view, this submission is not supported by any evidence. There is indeed no evidence establishing the property interests or rights of the plaintiff and his tribesmen to persuade the Court to conclude that there is imminent danger to these interests or rights.

16. Thirdly, he did not say when the defendants are likely to enter upon his tribe's customary land or village and attack them and the name of the young man allegedly killed by the defendants, date, time and location of the alleged killing. This evidence is very important to persuade the Court to conclude that there is imminent danger to his life and that of his tribesmen, especially where it is alleged that the defendants had killed one of his tribesmen two weeks ago. Further and finally, even if there is some general evidence of the property interests he seeks to protect like food gardens, houses, school and health centre, again, there is no evidence of the value of these properties before the Court so as to establish the substantial or irreparable prospective damage that may arise if the interlocutory injunction is not granted. In the circumstances, I am not satisfied that the plaintiff has established that there is imminent danger to his life and property including that of his tribesmen. 

17. This is where I think he has come to the wrong place for redress and that is another reason for me to find that this is not an appropriate case where a quia timet injunction may lie. If it is true a young man from his tribe has been killed by the defendants, the members of his tribe should not take the law into their own hands by retaliating. They must exercise restraint for the good of their people and community. If it is also true that the defendants are likely to enter their customary land and wage war against them including destroying their food gardens and properties, then those involved must be punished accordingly. The plaintiff's tribesmen must not take the law into their own hands.

18. There are legitimate authorities established by the laws of this country that may deal with people who break the laws of this country. They are the Police, the Courts and the Correctional Services. People who kill other people must be reported to the police. People who destroy other people's properties must be reported to the police. Police are empowered under section 197 of the Constitution to investigate the circumstances of the alleged offence(s), arrest and charge the alleged perpetrator(s) so that they may be brought before the Courts for trial and if found guilty, punished accordingly. When people do not follow these legitimate processes established by the Government under the various laws of this country, more trouble will occur. There will be chaos and misery for the people. People with arms will rise up and terrorise the insecure ones. There will be lawlessness and tyranny in our country. 

19. In this case, I consider that it is not for the tribesmen of the deceased to avenge the death of the youth. If they do, I am sure the tribal fight will escalate and will result in perhaps, more unwarranted deaths and loss of property. I am sure, that is not what the plaintiff and many others want. That is why it is so important that the alleged killing must be reported to the police immediately. The threats of destruction to their properties and food gardens must also be reported immediately to the police. The police station is the first place the plaintiff must visit. In this respect, there is no evidence from the plaintiff that he reported the alleged killing to the police in Mt Hagen. 

20. There is also no evidence that he reported the tribal fight to the police. The position was the same when I enquired with him during the hearing and I reject his submissions that even if he did report the tribal fight to the police, they were unlikely to intervene because they had done nothing in past tribal fight conflicts. In my view, that submission is based on speculation and not supported by evidence. I consider that reporting the alleged killing of the youth and the tribal fight to the police is essential and the plaintiff should have and must do; not coming to the Courts. It is a police matter at this stage. 

21. For these reasons, I consider that this is a case where it is not fair and convenient to grant the interlocutory injunction and I refuse the application with cost to be in the cause.

Ruling and orders accordingly.
____________________________________

Plaintiff in person