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Mondo v Moses [2018] PGNC 448; N7563 (2 November 2018)

N7563

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 619 OF 2018

BETWEEN
JOHN MONDO, On behalf of SAIKOU CLAN
Plaintiffs

AND
STEVEN MOSES, On behalf of TARAWA WAWA CLAN
First Defendants

AND
IRUNA ROGAKILA, In his Capacity as the Registrar of
Incorporated Land Groups
Second Defendant

Waigani: Dingake J
2018: 27 September

Cases Cited:

Louis Medaing v Ramu Nico Management Ltd (2011) N4340 PGNC 149; Employers Federation of Papua New Guinea v Papua New Guinea Workers and Seamen’s Union (1982) PGNC 24.

Counsel:

Mr. Alex Maribu, for the Applicant/Plaintiffs
No Appearance, for the Respondent/Defendants

2^nd November, 2018

1. DINGAKE J: This is an application for an interim restraining order, as captured in notice of motion filed with this Court on the 6^th of September, 2018, Document No. 2, filed of record.
2. The facts founding this relief are set out in the supporting and supplementary affidavits of John Mondo filed on the 6^th of September, and the 8^th of October, 2018 respectively.
3. Essentially, John Mondo, claiming to represent the Saikon Clan avers that the Saikon Clan of which he is a member is the legitimate owner of customary lands, namely Aipaip, Samaga, Vulotah/Nodrogereg, Sakali and Berberi (waterfall).
4. Mr. Mondo, ostensibly on behalf of the clan complains that the first defendants have applied to be recognised as an Incorporated Land Group under Section 33 of the Incorporated Land Group Act, and that in their application they have included properties belonging to his clan.
5. In his supplementary affidavit, Mr. Mondo attaches a list of 39 persons as evidence of consent given to Valorem Attorneys and himself to represent them in Court against Steven Moses and Rogakila in the legal proceedings.
6. The supplementary affidavit does not say the number of persons making up the Saikon Clan, and neither does it sufficiently identify the ‘legal proceeding’ with respect to which authority is given.
7. The applicant expresses fear that the first defendants may manipulate and by pass the legal process and procedures and proceed to register their incorporated land group that includes their customary land, hence this application for a restraining order.
8. The primary considerations to be taken into account by the Court on whether to grant or refuse the relief sought are:
   • (a) Are there serious questions to be determined and does an arguable case exists;
   • (b) Has an undertaking as to damages been given;
   • (c) Would damages be an adequate remedy if interim order is not granted;
   • (d) Does the balance of convenience favour the granting of the relief sought;
   • (e) Do the interests of justice require that the interim order be made (Louis Medaing v Ramu Nico Management Ltd (2011) N4340 PGNC 149; Employers Federation of Papua New Guinea v Papua New Guinea Workers and Seamen’s Union (1982) PGNC 24.
9. I have considered that Mr. Mondo purports to represent a clan and has attached a list of 39 persons consenting to the lawyers mentioned and him representing the clan in legal proceedings. I do not consider the purported authority to be sufficient; firstly, it doesn’t identify which legal proceeding; secondly, there is no evidence as to the number of clan members in order to determine whether 39 constitutes a minority or majority of the clan members. On the evidence presented to the Court, I am not satisfied that sufficient authority has been presented to the Court.
10. Even if I am wrong to hold as I do, that there is no sufficient evidence establishing authority to bring this current litigation (OS No. 619 of 2018), I would still decline to grant the orders sought because the asserting underlying and supporting the motion are speculative and not supported by any evidence. More significantly there is no evidence that the applicants own the land they claim to be theirs or that the defendants may “manipulate” and “bypass” the legal process.
11. In the result, the application is without merit and it is dismissed with costs.

_______ ____________________________________________________
Valorem Attorneys: Lawyers for the Applicant
Pang Legal Services: Lawyers for the Respondent