Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Tununto v Kainantu District Development Authority [2022] PGNC 556; N10081 (14 November 2022)

N10081

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 258 OF 2022

BETWEEN:
JOHN TUNUNTO as Project Manager of KUSIPIL HOLDINGS LIMITED
First Plaintiff

AND:
KUSIPIL HOLDINGS LIMITED
Second Plaintiff

AND:

EMPII JOHNMARK trading as VINRORON TRUCKING & MACHINERIES
Third Plaintiff

AND:
TIMOTHY SINOKO
Fourth Plaintiff

AND:
KAINANTU DISTRICT DEVELOPMENT AUTHORITY
Defendant

Goroka: Mugugia, AJ
2022: 8^th, 14^th November

PRACTICE AND PROCEDURE – Plaintiffs’ application for interim injunction against the Defendant – Considerations – Are there serious questions to be tried? - Have the Plaintiffs given an undertaking as to damages? – If an interim order is not granted, would damages be an inadequate remedy? - Does the balance of convenience favour the granting of the interim order? – Exercise of discretion – Application dismissed.

Cases Cited:

Fulleborn Plantations Ltd. v. Kimas (2007) N3209
Telikom PNG Ltd v. Independent Consumer and Competition Commissions (2007) N3143

Counsel:

Ms Move, for the Plaintiffs
Mr Agusave, for the Defendant

RULING

14^th November, 2022

1. MUGUGIA, AJ: The Plaintiffs filed their Amended Originating Summons on 21^st October 2022, seeking a declaration that the impounding of vehicles and machineries currently undertaken by the Defendant is unlawful. They are now before this Court with an interlocutory application (motion filed on 21^st October 2022), seeking an interim injunction to restrain the Defendants, its agents, and servants from further conducting the impounding exercise carried out since 1^st September 2022. They seek an alternative order that specific machineries and vehicles which they claim they own, be immediately released to them by the Defendant. The Plaintiffs’ application was made pursuant to Section 155(4) of the Constitution.
   

2. The motion had come before me for hearing on 25^th October 2022. Mr Agusave stood in for the Defendant as a friend of the Court. I adjourned the matter to 8^th November 2022, and made an order for Mr Agusave to advise the Office of the Solicitor General of the return date. Mr Agusave advised Mr Uware of the Office of the Solicitor General. On 8^th November 2022, Mr Agusave stood in for Mr Uware who had advised that his travel arrangements to Goroka was not approved by the Solicitor General. Mr Uware had asked Mr Agusave to request for an adjournment to 28^th November 2022 when he will be available. Ms. Move was ready to proceed with her clients’ application on 8^th November 2022. When I asked Mr Agusave if he was able to assist the Court, he said that if I allow Ms. Move to make the application, he will assist the Court. I was satisfied that the Office of the Solicitor General was aware of the Plaintiffs’ motion, and the hearing date. I therefore allowed Ms. Move to proceed with her clients’ application. I heard Mr Agusave’s submissions opposing the motion. Reliance was placed on the Affidavit in Response of Edward Apa Topiso filed on 7^th November 2022.

PLAINTIFFS’ SUBMISSIONS

3. Ms. Move relied on her Extract of Submissions filed on 20^th October 2022, and made these submissions:

• Her clients own the specific machineries and vehicles. According to the registration papers evidenced in their supporting affidavits, they own the vehicles. They are the registered owners of the respective machineries and vehicles impounded. This confirms that they have legal rights to the properties. It is undisputed that the vehicles and materials belong to them. They have been unjustly deprived of their properties.
  
• The substantive relief is that the impounding exercise is illegal. Her clients have a legal right and there is a serious legal issue. To preserve the status quo, the impounding exercise has to be put on hold, and the items confiscated should be returned to the respective owners. There is no need to further detain the vehicles and machineries. In this regard, the Plaintiffs have a serious case which has a real possibility of ultimate success.
  
• An undertaking as to damages was filed on 19^th October 2022. It was signed by the Plaintiffs John Tununto, Timothy Sinoko and Empii Johnmark. The undertaking as to damages has been sufficiently endorsed. When asked by the Court whether the undertaking as to damages is sufficient, Ms Move submitted that they have not affixed a seal. In compliance with the requirements of Order 4, Rule 49(5)(ii)(c) of the Motions (Amendment) Rules 2005 relating to urgent applications, an undertaking as to damages has been filed which appropriately addresses the issue.
  
• The balance of convenience favours the granting of the orders. The way forward is putting on hold all things. In the interest of justice, the interim restraining order should be granted by this Court. The interest of justice favours the application.
  
• The power to exercise is discretionary.
  

DEFENDANT’S SUBMISSIONS

4. Mr Agusave’s submissions on behalf of the Defendant were as follows:

• The Plaintiffs do not own the vehicles and machineries. They were formally owned by the Defendant. The Defendant did authorise the exercise, and it is still ongoing. It has to do with audit and a criminal complaint. A Warrant of Search was obtained, and a search was conducted at the former member’s residence. The vehicles and machineries were taken from his house. These are public vehicles. The questions that arise are “How were the vehicles transferred to the Plaintiffs?” and “How were the ownership papers transferred to the Plaintiffs?” The tender process was not followed. There are serious questions to be tried.
  
• The undertaking as to damages is an important requirement. The Plaintiffs’ undertaking as to damages is defective as there is no company seal and business seal. The undertaking as to damages is not properly before the Court.
  
• The First Plaintiff does not have standing. There is no evidence that authority was given to him to file proceedings on behalf of the Second Plaintiff. The undertaking as to damages signed by the First Plaintiff is defective as there is no seal for Kusipil Holdings Limited. The Second Plaintiff does not have standing.
  
• For the Third Plaintiff, the business name has not been renewed. Business names are always renewed annually. In the present case, the business name has not been renewed. The question is: “Is the business still a corporate person?” The Third Plaintiff is running a business and there must be a seal of the business name. There must be a business name seal on the undertaking as to damages. That is a requirement.
  
• The vehicles and machineries are now with the Defendant at its complex. 24 hours security is provided. The best thing to do in the interim is to keep them there where it is safe. If the Court does not make the interim orders, the exercise to verify the vehicles and source documents will still continue. If the Court grants the interim orders, that will impede the exercise, and the Defendant and the people of Kainantu will be disadvantaged. The balance of convenience does not favour granting the orders. The balance of convenience rest with the Defendant.
  
• The Defendant is doing it for the public interest. The Plaintiffs are concerned about their personal interests. The interests of justice lies in the Defendant’s favour.
  

ISSUE

5. Whether the Plaintiffs’ application satisfies all of the requirements for a grant of an interim injunction.

DETERMINATION

6. To determine the issue, the following questions should first be considered and determined:

• Are there serious questions to be tried?
• Have the Plaintiffs given an undertaking as to damages?
• If an interim order is not granted, would damages be an inadequate remedy?
• Does the balance of convenience favour the granting of the interim order?
  

Are there serious questions to be tried?

7. I have considered the Plaintiffs’ Amended Originating Summons filed on 21^st October 2022, and their affidavits.

8. I take note of the Defendant’s submissions. I am of the view that some matters raised by the Defendant are matters which will be properly determined at the substantive hearing when all the evidence are in. At the hearing of an interlocutory application, the parties are only required to address the Court on the procedural laws dealing with interlocutory applications.

9. I find that the Plaintiffs have established that there are serious questions for trial.

Have the Plaintiffs given an undertaking as to damages?

10. The Plaintiffs filed an Undertaking as to Damages on 19^th October 2022. John Tununto, Empii Johnmark and Timothy Sinoko signed. There is no company seal and business seal affixed.

11. In Fulleborn Plantations Ltd. v. Kimas (2007) N3209, Davani J stated that the Undertaking as to Damages is a condition precedent to the granting of an interlocutory injunction.

12. In order for the Undertaking to be binding, that Undertaking must be given under seal of the company: Kandakasi J (as he then was) in Telikom PNG Ltd. v. Independent Consumer and Competition Commissions (2007) N3143.

13. I agree with Mr Agusave that the Undertaking as to Damages relied on by the Plaintiffs is not properly before this Court. Where a company is applying for an interlocutory injunction, the undertaking must be given under seal of the company. This would be the same for a business. I find that the Plaintiffs’ Undertaking as to Damages was not properly given. It is not properly before me.

If an interim order is not granted, would damages be an inadequate remedy?

14. I find that an order for damages would be sufficient. It is not appropriate to grant the interim orders sought by the Plaintiffs.

Does the balance of convenience favour the granting of the interim order?

15. I am convinced by Mr Agusave’s submissions. If the interim order is made to restrain the Defendants, its agents, and servants from further conducting the impounding exercise and/or an interim order is made for the immediate release of the vehicles and machineries, the Kainantu District and the people of Kainantu will be disadvantaged. On the other hand, if the interim orders are made, the exercise will be halted, and no proper verification will be done. I have taken into account the public interest, and the economic and social impacts. I find that the balance of convenience lies in favour of the Defendant.

CONCLUSION

16. The Plaintiffs’ application has not satisfied all of the requirements for a grant of an interim injunction. Injunctions are equitable remedies available at the discretion of the Court. The interests of justice lies in favour of the Defendant. In the exercise of my discretion, I will dismiss the Plaintiffs’ application.

COURT’S FORMAL ORDERS

1. The Plaintiffs’ Notice of Motion filed on 21^st October 2022 is dismissed.

2. The Plaintiffs shall pay the Defendant’s costs of this application.

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

Ruling and Orders accordingly.

________________________________________________________________
Ms Move: Lawyer for the Plaintiffs
Mr Agusave: Lawyer for the Defendant