N8228

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 745 OF 2019

BETWEEN:
WASU API, BONNY BOIE, JAMES LATO SANGI, BRUCE SASSO, PETER SUMO and ELIAS WOEI in their capacities as Principal landowners of Sosi TP No. 15-09, Vanimo, Sandaun Province
First Plaintiffs

AND:
JUSTIN WIYAI, DAMIEN WANOU, JEROME HUS, IGNAS ILAU, BENARD SUWAI, JAMES YOWO, DENIS OPO, STEVEN OGI, SAMUEL PIRU and SIMON BIPI, in their capacities as landowners
Second Plaintiffs

AND:
KILAND RESOURCES LIMITED for and on behalf of the landowners of Sosi TP No. 15-09, Vanimo, West Sepik Province whose names listed in the schedule annexed to this writ
Third Plaintiffs

AND:
GREEN TIMBER (PNG) LIMITED
First Defendant

AND:
PAPUA NEW GUINEA FOREST AUTHORITY
Second Defendant

Waigani: Anis J
2019: 1st & 28th November
2020: 9th March

NOTICE OF MOTION – Inter-pates hearing – whether to extend ex-parte restraining orders – whether there are fundamental defects in the relief sought or to the claim - whether the subject matter of complaint pleaded is the same - whether the correct defendant is named as a party - whether all the plaintiffs have given their consent - whether arguable case – whether sufficient or valid undertaking given – whether the plaintiffs had disclosed all the material facts to the Court to obtain interim orders

Cases Cited:

Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853
Otto Lowa v. John Mori (2016) N6353

Counsel:

T Tape, for the Plaintiffs
L Tangua, for the First Defendant
S Mitige, for the Second Defendant

RULING

9th March, 2019

1.	ANIS J:	On 1 November 2019, this Court granted ex-parte interim restraining orders in favour of the plaintiffs.  The matter returned for inter-pates hearing on whether to extend the restraining orders, on 28 November 2019.  It was heard on that day.  I reserved my ruling thereafter to a date to be advised.

2.	Parties have been notified so I will rule on it now.

BACKGROUND

3.	The third plaintiff is a landowner company established by landowners.  The landowners, which include the 1st and 2nd plaintiffs, claim that they come from Sossi which is situated in Bewani Wutung in Onei Local Level Government.  The local level government they say falls under Vanimo Green District in Sandaun, West Sepik Province.  They claim that in April of 2019, the first defendant brought onto their customary land logging machineries.  They claim that they were surprised by the actions of the defendants, and they claim that that was when they started to inquire.  They said they eventually discovered that a timber permit was or may have been issued over their land.  They acknowledge that their land had been the subject of a Timber Rights Purchase (TRP) licence, namely, TRP No. 151-10-09 in the past.  But they claim that the said TRP expired in 2007.  They claim that as far as they are aware, no further extension or timber licence has been issued after that, that is, over the land because they claim that they are the landowners therein and that they did not give their lawful consent or authority for a timber permit or a licence to be issued over their land; they argue that if such had been given then they would have known about it.  

4.	Therefore, they question the timber permit of the defendants on their land, which is why they have filed this proceeding.

NOTICE OF MOTION

5.	The main relief sought in the notice of motion are, and I quote:

2.	Pursuant to Order 14, Rule 10 of the National Court Rules, the First Defendant be restrained in the interim from conducting any logging operation anywhere within TP No. 151-10-09, Vanino Green District. West Sepik Province.

3.	Pursuant to Section 155(4) and 185 of the Constitution and/ or for the purposes of Order 8 Division 6 and/or Order 8 Rule 69 of the National Court Rules, an order that the First and Second Defendants export logs already harvested and pay the proceeds into the National Court Trust account until further orders from this court.

6.	Term 2 of the interim orders were granted ex-parte on 1 November 2019.  The said order remains to this day.

ISSUES

7.	The main contested issues I noted are as follows, (i) whether there are fundamental defects to the claim including questions concerning the mode of proceeding, namely, whether the proper mode should have been to file proceeding under Order 16 of the National Court Rules, (ii), whether consent and authorities had been sought from all the plaintiffs before filing the proceeding, (iii), whether there is an arguable case, (iv), whether the plaintiff had disclosed all the material facts and information prior to being granted the interim orders, and (v) whether the Undertaking as to Damages given is sufficient or valid.

COMPETENCY ARGUMENTS

8.	Let me deal with competency or jurisdictional arguments first.  The defendants firstly submit that the plaintiffs filed an incorrect mode of proceeding.  They submit that the correct mode should be by way of judicial review under Order 16 of the National Court Rules, and they question whether the proceeding is an abuse of process or unmeritorious.

9.	I have considered the submissions of the parties.  I think that for such matters, the complaint and relief sought must be considered at the outset.  Before I may begin to consider the mode of proceeding, I notice this.  The plaintiffs’ description of the timber permit, TRP TP No. 151-10-09, is different to the timber permit that the defendants are aware of.  The defendants have filed evidence which say that they are only aware of the timber permit described as TP 10-09.  And they gave evidence to support their claim, and I refer to the affidavit of Chee Kung Sik filed on 20 November 2019.  Annexure “D” to the affidavit attaches the said timber permit.  The said timber permit (i.e, TP 10-09) was granted by the second defendant on 26 October 2018.  It has a life-span of 5 years.  The defendants submit that the plaintiffs’ cause of action is therefore defective and thus is likely to fail.  When I consider the arguments, the relief and the prima facie evidence, I must agree with the defendants.  There appears to be a fundamental flaw in the description of the timber permit, that is, from the one alleged by the plaintiffs to the one issued by the second defendant.  Are the plaintiffs talking about the same permit or are they referring to another timber permit?  Where is the prima facie evidence which explains that by the plaintiffs? 

10.	The problem for the plaintiffs, in my view, thickens from there.  The next thing I notice is this.  Now that all or most of evidence are in, particularly evidence coming in from the defendants, it appears that the plaintiffs may be suing the wrong parties.  The person that holds a timber permit from the area the plaintiffs may be interested in, is not any of the defendants who are named in the proceeding.  That person, based on Mr Sik’s evidence and based on the issued TP 10-09, is Alliance Lumber (PNG) Ltd.  The company holds the timber permit TP 10-09.  If in fact the plaintiffs have grievances against the holder of the timber permit TP 10-09 and want to void the said timber permit, would it not be that Alliance Lumber (PNG) Ltd should be named as the party to the proceeding?  Without naming a correct party and by obtaining interim relief against persons who may not have direct interests in reliefs that are being sought, in my view, shall amount to non-disclosure of the material or full facts and may also constitute a serious abuse of court process.  The plaintiffs, therefore and in my view have a lot of explaining to do if the matter is to continue.  But because of their actions or inactions, it is my firm view that they ought to suffer the consequences and that may be for this Court to lift the interim injunction.

11.	The next problem I see is this.  The principal plaintiff appears to be Elias Woei.  Evidence now adduced by some of the plaintiffs, show that they never consented to them being joined as plaintiffs.  I refer to plaintiff Dennis Opo, Ignas Ilau, Bernard Suwai, Damien Pupu, Jerome Hus, Samuel Piru, Simon Bipi and James Yowo.  So from the 16 plaintiffs that are named as first and second plaintiffs in the originating summons, 8 or half of them have now filed affidavits for the 1st defendant to say that they either never consented, their consents had been obtained fraudulently, or that they have decided against being named as plaintiffs.  They all gave evidence to support the first defendant and its timber operations on their land.  To me, these evidence puts into serious question firstly the conduct of the lead plaintiff Mr Woei.  The 8 plaintiffs have raised serious allegations against Mr Woei which include their claim that they had not consented to be joined before they were named as plaintiffs; that some of their signatures had been forged; and some have changed their minds and no longer support him.  The other serious allegation raised by these persons is this.  They say that Mr Woei had not been truthful with his evidence when he applied for the interim orders.  They allege that he knew all this time of the logging operation, that is, from when it started to the present time; they filed evidence to show that Mr Woei had participated and had received various benefits from the current logging operation and its developer.  These allegations to me appear serious and I note that they came from the said 8 plaintiffs and other witnesses, who have given evidence for the first defendant.  

12.	With serious doubts now appearing to the credibility of the plaintiff Mr Woei and also on whether all the plaintiffs have been properly joined or named, it also, in my view, puts into question whether the Undertaking as to Damages filed on 31 October 2019 (the Undertaking) by Mr Woei, that is, in his capacity as a director of the 3rd plaintiff, is valid or sufficient.  Upon a closer look at the Undertaking, I notice this.  The Undertaking is given by a company which is the 3rd plaintiff.  And the 3rd plaintiff is named as a plaintiff which is suing not for itself at all, but rather, and I quote, for and on behalf of the landowners of Sosi TP No. 15-09 Vanimo, West Sepik Province whose names listed in the schedule annexed to this writ.  The said description is stated with the name of the 3rd plaintiff in the originating summons.  What does this mean?  To me, it means an unusual situation.  In a normal situation, a plaintiff may give an undertaking in regard to action that it has commenced.  In this case, the 3rd plaintiff is not commencing any action itself as a person.  But it is suing or part-taking in a proceeding for a third party or parties.  I refer to Mr Woei’s affidavit filed on 22 October 2019.  At paragraphs 3 to 5 of his affidavit, he deposes that he and his group including directors and shareholders of the 3rd Plaintiff had held a meeting on 7 October 2019.  He deposes that it was at that meeting that they had appointed their lawyers and had executed a deed of appointment for their lawyers to act for them.  However, I note that there is nothing whatsoever to say what type of meeting that was.  Was that a shareholders’ meeting of the company?  If it was a company meeting, whether proper notices were given following the processes under the Companies Act 1997 for such a meeting to take place?  I find this evidence by Mr Woei’s all too confusing if not bizarre.  These therefore puts into serious question the validity of the Undertaking given and their consents for their lawyers to represent them.  A valid undertaking as to damages is an important requirement to be had before the Court may consider whether to grant or extend an interim order.  See case: Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853; Otto Lowa v. John Mori (2016) N6353.  I find that the plaintiffs have failed in that regard.  

SUMMARY

13.	The above reasons are sufficient for me to refuse to extend the interim injunction.  The interim restraining order granted on 1 November 2019 will be set aside.

14.	I note that relief 3 of the application is dependent upon the grant of relief 2 which is the interim restraining order.  Because I will now refuse relief 2, the application will fail in its entirety.

COST

15.	An order for cost in this type of application is discretionary.  Cost will follow the event.  I will order cost in favour of the defendants on a party/party basis to be taxed if not agreed.

THE ORDERS OF THE COURT

16.	I will make the following orders:

1.	The plaintiffs’ notice of motion filed on 22 October 2019 is refused.

2.	For clarity, the interim restraining orders obtained by the plaintiffs on 1 November 2019 are set aside.

3.	The plaintiffs shall pay the defendants’ costs of the application on a party/party basis to be taxed if not agreed.

4.	Time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

The Court orders accordingly.
_______________________________________________________________
Kandawalyn Lawyers: Lawyers for the Plaintiffs
Tangua Lawyers: Lawyers for the First Defendant
In-house Lawyer Lawyer for the Second Defendant