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Doudi v Otto [2022] PGNC 473; N10004 (3 November 2022)

N10004

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 172 OF 2022

BETWEEN:
RYAN DOUDI on his own behalf and on behalf of the Members of the Geneto Incorporated Land Group No 14273 whose names appear in the schedule attached to the Originating Summons
First Plaintiff

AND
GENETO INCPORATED LAND GROUP (ILG NO. 14273)
Second Plaintiff

V
BOGI DOUDI OTTO
First Defendant

AND
ELPHIS AUBOTI
Second Defendant

AND
ALE ANE in his capacity as Registrar of Titles, Department of Lands and Physical Planning
Third Defendant

Alotau: Collier J
2022: 1^st & 3^rd November

PRACTICE & PROCEDURE – Notice of Motion seeking interim injunctive relief by the defendants in the form of restraining orders against plaintiffs – whereas the defendants seek vacation of interim injunctive Orders previously made ex parte – ex parte Orders were validly made and remain necessary until substantive determination of the proceeding – whereas an undertaking as to damages is a compulsory precondition to the granting of interim injunctive relief - defendants have not made an undertaking as to damages – plaintiff’s Notice of Motion dismissed

Cases Cited:
Chief Collector of Taxes v Bougainville Copper Ltd; Bougainville Copper Ltd v Chief Collector of Taxes (2007) SC853
East Arowe Timbers Resources Ltd v Cakara Alam (PNG) Ltd [2008] N3270
Hotel Kokopo Ltd v National Development Bank [2013] N5111
Kula Oil Palm Ltd v Tieba [2021] PGNC 611
Wamena Trading v Civil Aviation Authority (2006) N3058

Counsel:

Mr C Raurela, for the Plaintiffs
Mr R Diweni, for the Defendants

3^rd November, 2022

1. COLLIER J: Before the Court is a Notice of Motion filed by the first and second defendants (defendants) in the substantive proceeding, Ms Bogi Doudi Otto and Ms Elphis Auboti respectively, on 2 September 2022 (NOM). In summary, the defendants seek the vacation of ex parte interim restraining Orders made by a Judge of this Court against them, in the plaintiffs’ favour, on 7 July 2022 (Orders).
2. By the NOM, the defendants sought the following relief:
   1. Pursuant to Order 4 Rule 49(19)(4) and Order 12 Rule 8(3)(a) of the National Court Rules, the Orders of this Honourable Court made on 7 July 2022 and entered on 7 July 2022 be set aside.
   2. Pursuant to Order 10 Rule 15(1)(a), Order 10 Rule 15(2)(d) and Order 12 Rule 40(1)(b) and Order 12 Rule 40(1)(c) of the National Court Rules, the Motion for Contempt of Court filed on 25 July 2022 and the Statement of Charge filed on 25 July 2022 be dismissed.
   3. Pursuant to s 155(4) of the Constitution and the inherent powers of this Honourable Court, and order restraining the first Plaintiff, all members of his family and his servants and agents from approaching the defendants within 100 meters and from verbally and/or physically abusing and/or intimidating the Defendants.
   4. The first plaintiff shall pay the costs of and incidental to this notice of motion.
   5. Any other orders this honourable court deems fit.
3. At the hearing earlier this week, Counsel for the defendants, Mr Diweni, stated that the parties were agreed that only paragraphs 1, 3 and 4 of the NOM should be determined by the Court at this stage. No issue was taken with this submission by the plaintiffs, and accordingly I will rule only on these paragraphs as presently pressed.
4. The Orders which the defendants seek be vacated were as follows:
   1. Leave be granted to the Plaintiffs to dispense with the requirement of service of the Notice of Motion and supporting affidavit, undertaking as to damages and originating summons filed herein on the Respondents pursuant to Order 1 Rule 7, Order 4 Rule 49(5)(ii)(e)(ii) and Order 12 Rule 1 of the National Court Rulea.
   2. Pursuant to pursuant to Order 12 Rule 1, Order 4 Rule 49(5)(ii)(e)(ii) of the National Court Rules and Section 155(4) of the Constitution –
      1. The first Defendant is restrained forthwith from acting as chairlady and Committee Member of Geneto Incorporated Land Group pending the determination of this proceeding or until further Orders of the Court;
      2. The first Defendant is restrained forthwith from acting, purportedly acting, representing or making any representations in any manner or form whatsoever for And or on behalf of Geneto Incorporated Land Goup and its members.
      3. The first Defendant and her servants or agents including her biological children and whosoever associated with a restrain from dealing, selling, disposing of all land belonging to and owned by the Plaintiffs pending determination of these proceedings or until further Orders of the Court.
      4. The first and second Defendant and the servants, agents, spouses, biological children and whosoever associated with them are restrained forthwith from selling or disposing or entering into any form of sale agreement, lease agreements, or land use agreements in any manner or form whatsoever with third parties relating to and or regarding all land belongings two and owned by the Plaintiffs pending the determination of these proceedings or until further Orders of the Court;
      5. The first Defendant and the second Defendant and their servants, agents, associates including their biological children and whomsoever associated with them be restrained from intimidating, harassing, and abusing the Plaintiffs in any manner or form pending the determination of these proceedings or until further Order of the Court;
      6. The first Defendant and the second Defendant and their servants, agents, associates including their biological children and whomsoever associated with them are restrained from entering the second Plaintiff's office is located within Geneto Housing Estate and from getting anywhere within the vicinity of 200 meters of the office area pending the determination of these proceedings;
      7. The first and second Defendant shall deliver up to the Plaintiff's lawyers all land sale documents, land titles and all documents relating the Plaintiffs’ land within three days from the date of these Orders;
      8. The first Defendant shall provide an account with details in particulars of all funds received by her and from whom all illegal and unlawful land sale deals for the years 2014 to June 2022 within three (3) days from the date of these Orders; and
      9. The third Defendant is restrained from registering and transferring or effecting the transfer and registration of all land purportedly sold by Geneto Incorporated Land, , particulars of which are described in the schedule attached to this order inclusive of any other land owned by the Plaintiffs, pending determination of these proceedings or until further Order of the Court.
   3. The Plaintiffs shall serve the originating summons, undertaking as to damages, notice of motion, supporting affidavit and a sealed copy of this Court Order on the Defendants within 7 days and shall file an affidavit of service confirming service of the documents referred to hearein;
   4. Each party is at liberty to apply by giving seven days’ notice to the other parties;
   5. Parties shall return on 21 July 2022 at 9:30 am for mention;
   6. Costs of and incidental to this application be paid by the first and second Respondents; and
   7. Time for entry of these Orders be abridged to the date of settlement by the Registrar which shall take place forthwith.

FACTUAL BACKGROUND

5. The factual background to the substantive proceeding is extensive. It is not necessary to focus on that background at length for the purposes of determining the NOM.
6. As such, I will only provide a brief summary of the substantive proceeding.
7. The first plaintiff and the first defendant are members of the Tagolewa Kedewa Clan (Clan), in addition to a number of other families. The Clan owns large amounts of customary land on the outskirts of Alotau.
8. The second plaintiff, Geneto Incorporated Land Group (GILG) was registered in 2005 as a vehicle to manage the customary lands owned by the Clan. Following a decision by the Clan to develop their customary land as a commercial venture, GILG established Geneto Housing Estate Limited (GHEL) to undertake this commercial development.
9. The lead first plaintiff, Mr Ryan Doudi, is the first defendant’s brother and the present Treasurer of the GILG and GHEL.
10. At some point in 2014, the first defendant became the Chair of the GILG. In an Originating Summons filed by the plaintiffs on 6 July 2022 and an affidavit in support of that Originating Summons signed by the first plaintiff on the same date, the plaintiffs allege that the first defendant sold and gifted some 42 portions of the customary land managed by GILG without their knowledge or consent. The plaintiffs further allege that first defendant did so with the assistance of Ms Elphis Auboti, the second defendant, who was engaged as a consultant by the first defendant in her work with both GILG and GHEL.
11. The first defendant contends that these sales and gifts of customary land were arranged for the purpose of raising capital to develop the customary land, and as payment in kind for work to prepare that land for development.

NOM

12. From the outset I would note that much of the material filed in support of the NOM by the parties is tendentious in its content and phrasing. That material, for the most part, seeks to agitate arguments that relate to the substantive proceeding and consequently has no utility in determining whether the NOM should be granted.
13. Accordingly, there are two questions before this Court as provided by the NOM:

• Whether Orders dated 7 July 2022 (Orders) should be set aside (Orders question); and
• Whether the orders restraining the first plaintiff should be made (restraint question).

Submissions

14. The defendants contend that the Orders should be overturned predominantly on the basis that they were obtained ex parte, and as a result the defendants were not heard at the hearing of 7 July 2022.
15. The defendants similarly contend that the first defendant is the rightful and duly-appointed Chair of the GILC, and that she should not be precluded from acting in this capacity by those Orders.
16. The first defendant further contends that as the “rightful heir and principal landowner” of the customary lands, she should not be restrained from dealing with those lands by means of the Orders.
17. The defendants submit that orders restraining the plaintiffs from coming within 100 metres of them are required given the first plaintiff has previously attacked the first defendant with a bush knife on 20 January 2020. I note that the first plaintiff, in his affidavit of 6 July 2022, admits to committing an assault against the first defendant on this date. He qualifies this admission with the fact that he was subsequently charged and has paid compensation to the first defendant as recompense for this assault. (In this respect I note that Counsel for the plaintiffs, Mr Raurela, submitted at the hearing that the events involving the attack on the first defendant by the first plaintiff took place in 2017. However he was unable to direct me to any evidence supporting this assertion, and accordingly I must assume that these events occurred in 2020, consistently with the affidavit of the first plaintiff dated 6 July 2022).
18. The plaintiffs contend that the Orders should not be set aside by the Court, as they are necessary in the context of the substantive proceeding, given they allege the first defendant engaged in illegal land sales without their consent, and on the basis that the defendants have flagrantly disregarded those Orders. The plaintiffs also allege that the first defendant has previously engaged in harassment and verbal abuse directed at them, and the Orders are necessary in order to prevent this behaviour from occurring prior to the determination of the substantive proceeding.
19. The plaintiffs further contended that as the defendants had not filed an undertaking as to damages, it was not open to this Court to grant them the restraining orders which they in turn seek in the NOM.
20. In support of the NOM, the defendants rely on the following affidavits:

• Affidavit of Ms Boggi Otto, filed on 2 September 2022; and
• Affidavit of Ms Elphis Auboti, filed on 2 September 2022.

21. In support of their position referable to the NOM, the plaintiffs rely on the following affidavits:

• Affidavit of Mr Ryan Doudi, filed on 6 July 2022;
• Affidavit of Mr Ryan Doudi filed on 25 July 2022;
• Affidavit of Ms Dorothy Panu, filed on 11 July 2022; and
• Affidavit of Sebi Babanem, filed on 12 September 2022.

Consideration of the Orders question

22. Justice Makail in East Arowe Timbers Resources Ltd v Cakara Alam (PNG) Ltd [2008] N3270 summarised the law referable to the setting aside of ex parte interim injunctive relief:

23. I remind myself that, at this stage, I am here first to decide whether or not there are serious questions to be tried at the full trial. I am not here to decide the merits of the substantive proceeding. Secondly, whether the balance of convenience favour the continuation of the Interim Injunction. Thirdly, has there been a change in the circumstances since the Court granted the ex parte Interim Injunction on 29 November 2007 and finally, has the Court been misled by the First and Third Plaintiffs when it granted the ex parte Interim Injunction on 29 November 2007?
(emphasis added)

23. His Honour went on in East Arowe Timbers Resources to observe in relation to the power of the National Court to set aside interim orders:

24. The Court’s jurisdiction to set aside an ex parte order is found under sections 163(2), 155(3)(a) & (4) and Schedule 2.2 of the Constitution and Order 12 rule 8 of the National Court Rules. The National Court is generally obliged to apply and enforce, as part of the underlying law, the principles and rules of common law and equity in England that were formed immediately before Independence Day.

24. Specifically in the context of factors to be considered when setting aside interim restraining orders, Maliku AJ stated in Hotel Kokopo Ltd v National Development Bank [2013] N5111 at [43]:

Mr Asa referred me to the case of Wamena Trading-v- Civil Aviation Authority (2006) N3058 and Kaiya Dick-v- Peter Lok (2007) N3205 which set out the relevant considerations that the Court have taken into account in dealing with applications to set aside Interim Restraining Orders such as:

1. Where the conditions or stipulations of the Order have not been not been met and the Order is no longer necessary.
2. If it is subsequently discovered by the Court that the Interlocutory Order was founded on wrong principles.
3. Changes in relevant circumstances, including failure of the party enjoying the Order to act responsibly after obtaining it.
4. It is shown that the party obtaining the Order had not come to the Court with clean hands. Mr Asa relies on the case of Mainland Holding Ltd –v- Paul Stobbs N2522; Injia DCJ (as he was then).
5. Where the Plaintiffs failed to prosecute its' action after obtaining an injunction- see National Housing Corporation-v- Yama Security Services Pty Ltd N1985 Sevua J.
6. If the Court finds that it was misled on the earlier application – see Mark Ekepe –v- William Gaupe N2694 Cannings J.
7. On an ex parte interlocutory application there has been a failure to make a full disclosure of relevant materials both for and against the applicant case – see Siotic Bauf and Lovoi Nadai –v- Poliamba Pty Ltd [1990] PNGLR 278 also Golobadana No.35 Ltd-v- Bank South Pacific Ltd N2390 Kandakasi J.
25. For the reasons that follow, I am persuaded that the Orders should not be set aside.
26. First, the Orders were validly made by a Judge of this Court on an ex parte basis. The power of the Court to make orders ex parte, and grant interim injunctive relief on an ex parte basis, is well-settled: see Order 4 Rule 49 (5)(ii)(e)(i) and (ii) National Court Rules and the authorities to which I have already referred.
27. Second, the substantive proceeding concerns the validity of the actions of the defendants in selling or gifting customary land to third parties. This occurred in the first defendant’s capacity as the Chair of the GILG. It is, notwithstanding the first defendant’s claim that she is the “rightful heir and principal landowner” of the Clan’s customary lands, appropriate to preclude her from disposing of land via her position in the GILG, or in any personal capacity, pending the substantive determination of these proceedings. Notwithstanding the submission of Counsel for the defendants in relation to the current lacuna in the leadership of the GILG, I am satisfied that the preservation of the Clan’s customary lands pending resolution of the substantive proceedings is, on balance, of greater importance. In this context I note that the plaintiffs seek a declaration in the substantive proceeding that the first defendant is not the Chair of the GILG.
28. Further, the plaintiffs have referred to sections of the Land Groups Incorporation (Amendment) Act 2009. This Act amended the Land Groups Incorporation Act (Chapter 147) to apply and give effect to the National Goals and Directive Principles of the Constitution as they relate and apply to ownership of lands held under customary tenure and dealings in those lands. The plaintiffs allege that the defendants breached this legislation in selling or gifting 42 parcels of customary land. They submit that the alleged breaches of the Land Groups Incorporation Act demonstrates the serious questions to be tried at the substantive hearing against the defendants. It is uncontroversial that this legislation governs the GILG. The specific provisions of the Land Groups Incorporation Act which the plaintiffs claim have been breached by the defendants are:

• Section 13(1), which provides that the power of incorporated land groups shall only be exercised in relation to the use and management of land;
• Section 13(2), which provides that an incorporated land group may hold, acquire or dispose of customary land to the extent allowed by custom, and distribute any profit arising out of the use or management of customary land in accordance with custom; and
• Section 132, which states that a customary landowner may not sell, lease or otherwise dispose of customary land or customary rights otherwise than to citizens in accordance with custom.
  

29. Having regard to these legislative provisions, and the allegations made by the plaintiffs against the defendants, I am satisfied that the defendants have made out an arguable case to be tried in the substantive proceeding.

Third, there has been no change in circumstances that would support the setting aside of the Orders. Neither the plaintiffs nor the defendants pleaded that any such change has occurred since the Orders were made. I also note that emotions surrounding this proceeding remain high, and that it involves individuals from the same family on different sides to this litigation.

Finally, there is nothing to suggest that the Court was misled in originally making the Orders. Neither is there any evidence to suggest that the all relevant materials were not disclosed by the plaintiffs to the Court in making its decision as to whether the Orders should be made. Any disputes as to the validity of the evidence filed in this proceeding, and there appears to be a substantial number of them, are matters to be ventilated at the substantive hearing.

Consequently, I am not prepared to set aside the Orders.

Consideration of the restraint question

30. In Wamena the Court held that it had “wide powers to grant or refuse to grant, vary or set aside, dissolve or discharge an interlocutory order...” at [9].
31. In Kula Oil Palm Ltd v Tieba [2021] PGNC 611, Kandakasi DCJ outlined the considerations relevant to the imposition of interim restraining orders such as that currently sought by the defendants. At [10], his Honour observed as follows:

The main issue for this Court to determine is whether KOPL has established a case for a grant of the interim restraining orders it is seeking pending a determination of the substantive proceedings. To determine that issue, it will be necessary to consider each of the requirements that an applicant for interim restraining orders must meet to get such a relief from the Court.
The principles governing a grant or not of interim restraining orders is well settled in our jurisdiction. In Golobadana No 35 Ltd v. Bank of South Pacific Limited (formerly Papua New Guinea Banking Corporation) (2002) N2309, I considered most of the decisions on point as at the time of the decision and summed up the principles in the following terms:

“A reading of this authorities shows consistency or agreement in all of the authorities that the grant of an injunctive relief is an equitable remedy and it is a discretionary matter. The authorities also agree that before there can be a grant of such a relief, the Court must be satisfied that there is a serious question to be determined on the substantive proceedings. This is to ensure that such a relief is granted only in cases where the Court is satisfied that there is a serious question of law or fact raised in the substantive claim. The authorities also agree that the balance of convenience must favour a grant or continuity of such a relief to maintain the status quo. Further, the authorities agree that, if damages could adequately compensate the applicant, then an injunctive order should not be granted.”

The Supreme Court decisions in Chief Collector of Taxes v. Bougainville Copper Ltd; Bougainville Copper Ltd v. Chief Collector of Taxes (2007) SC853, Behrouz Boochani v. The State (2017) SC1566 and many more have endorsed and applied this summation of the principles. In its decision in the Chief Collector of Taxes v. Bougainville Copper Ltd (supra) the Supreme Court added:

“In addition to the above [summation of the principles], there is ample authority in our jurisdiction that, before the Court could grant an interim injunctive relief, the applicant must provide an undertaking as to damages.”

32. A pre-condition to the grant of interim injunctive relief is the provision of an undertaking of the applicant as to damages. In this context, Kandakasi DCJ stated in Kula Oil Palm Ltd, at [12]:

The Supreme Court decisions in Chief Collector of Taxes v. Bougainville Copper Ltd; Bougainville Copper Ltd v. Chief Collector of Taxes (2007) SC853, Behrouz Boochani v. The State (2017) SC1566 and many more have endorsed and applied this summation of the principles. In its decision in the Chief Collector of Taxes v. Bougainville Copper Ltd (supra) the Supreme Court added:
“In addition to the above [summation of the principles], there is ample authority in our jurisdiction that, before the Court could grant an interim injunctive relief, the applicant must provide an undertaking as to damages.”
(emphasis added)

33. At the hearing on 1 November 2022, Counsel for the defendants conceded that his clients had not made an undertaking as to damages. He submitted however that such an undertaking was unnecessary because the restraining orders sought by the defendants concerned their personal safety.
34. Counsel cited no authority for the proposition that there was an exception to the general rule that an undertaking as to damages is required as a pre-condition of a grant of interim injunctive relief. I am unable to identify any such authority.
35. In the absence of any authority to the contrary, and on the authority of Kula Palm Oil Ltd and Chief Collector of Taxes, this condition precedent has not been satisfied. This omission on the part of the defendants is fatal to the NOM insofar as the defendants seeks restraining orders against the plaintiffs.
36. In conclusion in respect of this point, I note that no submissions of substance were made by Counsel for the defendants directed to the existence of an arguable case justifying the grant of restraining orders against the plaintiffs, other than a vague reference to the defendants’ “personal safety”, and to historical events from more than two years ago. In the circumstances, and in the absence of developed arguments by the defendants on this issue, it is unnecessary for me to form any definitive views concerning the existence of an arguable case.

CONCLUSION

37. For the reasons I have outlined, I dismiss the NOM. It is appropriate that the defendants pay the costs of the plaintiffs of an incidental to the NOM, such costs to be taxed if not otherwise agreed.
    

38. The Court orders that:

1. The Notice of Motion filed by the first and second defendants on 2 September 2022 (Notice of Motion) is dismissed.
2. The first and second defendants pay the costs of the plaintiffs of and incidental to the Notice of Motion, such costs to be taxed if not otherwise agreed.
3. This proceeding is adjourned to the next Civil Call Over to progress the Notice of Motion and Statement of Charge filed by the plaintiffs on 7 July 2022, seeking the first and second defendants be held in contempt, to hearing.

________________________________________________________________
Rarurela Lawyers: Lawyers for the Plaintiffs
Diwenis Lawyers: Lawyers for the Defendants