N5372

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO 493 OF 2013

BETWEEN

JOE SAPORO
Plaintiff

AND:

FRANCIS TAVONGA
Defendant

(No.1)

Kimbe: Geita AJ
2013: 6th September

PRACTICE & PROCEDURE – Motions – Urgent application – Procedures seeking urgent interim relief – Rule 5 Motions (Amendment) Rules 2005.
PRACTICE & PROCEDURE – Interim Stay Orders – Order 14 Rule 9 (a) National Court Rules – Case considered urgent – Motion granted. 
Case cited:
Mt.Hagen Airport Hotel v Gibbs [1976] PNGLR 316)
Counsel:
Ms. Josephine Waiwai, for the Plaintiff 

REASONS FOR DECISION
6th September, 2013

1. GEITA AJ: Around 5 pm on 6th September 2013 the applicant filed an application by a notice of motion seeking amongst other orders, the following orders citing its urgent nature:

a). That the requirement for service pursuant to Order 1 Rule 7; of the National Court Rules be dispensed with;

b) That the following orders be made pursuant to Order 14 Rule 9 (a) of the National Court Rules:

1) That the entire proceedings in DLC No. 13 between the Plaintiff and the Defendant be stayed;

2) That the execution and enforcement of the following District Land Court Proceedings at Kimbe registered as DLC No. 13 of 2013 be stayed: Ex-parte temporary order dated 25 April 2013; Ex-parte order dated 8 August 2013; Ex-parte order dated 13 August 2013; Ex-parte order dated 14 August 2013; Warrant of arrest dated 13 August 2013; Ex-parte Garnishee Notice dated 22 August 2013; Court order dated 6 September 2013.

c) That the defendant, his servants and or agents and relatives be restrained from harassing, intimidating or demanding any party who is to effect the Court Orders by the District Land Court.

d) That any persons in breach of the order be imprisoned.

2. The plaintiff came to court armed with a Notice of Motion, Originating Summons, and Affidavit in support from the plaintiff and Undertaking as to Damages, seeking urgent injunctive orders ex-parte. Upon the granting of leave with orders dispensing the requirements of service to the defendants this application was heard ex-parte.

3. The brief facts as I understand them from the plaintiff's affidavit and supporting annexure are these: The plaintiff and the defendant together with their respective supporters appear to have an ongoing difference as to who should be the principal beneficiary of timber royalty monies for their people in the Cape Glouster area, Kimbe, West New Britain Province. A trail of ex-parte and temporary orders made in favour of both parties at different times with varying outcomes have complicated all early resolution attempts to this ongoing dispute. The most recent District Land Court Order delivered this morning by His Worship Mr. Paul N'Dranoh directing Mr. David Sui to pay to the defendants more than one million kina from Lolo Development Corporation Ltd account within 24 hours or be imprisoned for two months is one such order. Mr. David Sui is the Managing Director of the plaintiffs Management Company. The 24 hours direction expires 11.20am Saturday 7 September 2013 hence the urgency of this application. The plaintiff deposed that he was unable to obtain copies of His Worship's decision this morning as he had gone home and the District Court Registry had closed for the week end. However I proceeded to consider the plaintiff's application on the strength of other supporting annexure marked "B" in the form of ex-parte court order of 22 August 2013 which gave rise to His Worships recent order this morning. The ex-parte court order of 22 August read in part as follows:

1. Leave is granted to the Complainant/Judgment Creditor's to issue a Garnishee Notice to the Garnishee to secure payments for the settlement of the judgment debt of K1,371,843.16 which judgment was ordered by this Court on 8th August 2013.

 2. The Defendants/Judgment Debtors shall pay the Complainant/Judgment Creditor's cost of an incidental to this application.

 3. ...

4. The granting of interlocutory orders are discretionary by the National Court pursuant to section 155 (3) (4) of the Constitution and Order 16, rules 1 & 9 of the National Court Rules. The purpose of an interlocutory injunction is to preserve the status quo until the hearing of the main action (Frost CJ in Mt.Hagen Airport Hotel v Gibbs [1976] PNGLR 316).

5. Having satisfied myself that the procedures for seeking urgent interim relief set out in Rule 5 of the Motions (Amendment) Rules 2005 were complied with together with the urgency of the matter, Order 14 Rule 9 National Court Rules. I grant the urgent orders sought for in this application in the following:

 1) That the entire proceedings in DLC No. 13 between the Plaintiff and the Defendant be stayed;

2) That the execution and enforcement of certain District Land Court Proceedings (enumerated above) at Kimbe registered as DLC No. 13 of 2013 be stayed;

3) That the defendant, his servants and or agents and relatives be restrained from harassing, intimidating or demanding any party who is to effect the Court Orders by the District Land Court;

6. All necessary documents to be duly served on the defendants and the matter returned to this court on 9th September 2013.
Orders accordingly.
____________________________________
M.S Wagambie Lawyers: Lawyer for the Plaintiff